NINETEENTH AMENDMENT AND LIMITED CONSENT to SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 4.39
This NINETEENTH AMENDMENT AND LIMITED CONSENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this “Amendment”), executed as of January 30, 2007 and effective as of December 26, 2006,
by and among THERMADYNE INDUSTRIES, INC., a Delaware corporation (“Industries”), THERMAL
DYNAMICS CORPORATION, a Delaware corporation (“Dynamics”), TWECO PRODUCTS, INC., a Delaware
corporation (“Tweco”), XXXXXX EQUIPMENT COMPANY, a Delaware corporation (“Xxxxxx”), C & G
SYSTEMS, INC., an Illinois corporation (“C & G”), STOODY COMPANY, a Delaware corporation
(“Stoody”), THERMAL ARC, INC., a Delaware corporation (“Thermal Arc”), PROTIP
CORPORATION, a Missouri corporation (“ProTip”), THERMADYNE INTERNATIONAL CORP., a Delaware
corporation (“International”, and collectively with ProTip, Thermal Arc, Stoody, C & G,
Xxxxxx, Tweco, 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 thereto from time to time as Lenders. Unless
otherwise specified herein, capitalized terms used in this Amendment shall have the meanings
ascribed to them in the Credit Agreement.
RECITALS
WHEREAS, the Borrowers, the Credit Parties, Agent and Lenders have entered into that certain
Second Amended and Restated Credit Agreement dated as of November 22, 2004 (as further amended,
supplemented, restated or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, Industries plans to liquidate Thermadyne Foreign Sales Corporation, a
corporation organized in Barbados (“Thermadyne Barbados”);
WHEREAS, the Borrowers and the other Credit Parties have requested that Agent and Lenders
grant a limited consent, pursuant to Section 6.2(n) of the Credit Agreement, to the making and
maintenance of a loan (the “Brazil Loan”) in an amount not to exceed $550,000 from
Industries to Thermadyne Xxxxxx LTD A, a limited liability quota company organized under the laws
of Brazil;
WHEREAS, the Borrowers and the other Credit Parties have requested that Agent and Lenders
agree to certain amendments to Section 6.8 of the Credit Agreement regarding the sale of Maxweld &
Braze (Proprietary) Limited and Thermadyne South Africa (Proprietary) Limited;
NOW THEREFORE, in consideration of the mutual execution hereof and other good and valuable
consideration, the parties hereto agree as follows:
1. Limited Consent to Brazil Loan. Pursuant to Section 6.2(n) of the Credit Agreement,
and subject to the limitations set forth therein, the Agent hereby consents to the making and
maintenance of the Brazil Loan.
2. Limited Consent to Barbados Liquidation. Agent and Lenders hereby consent to the
liquidation of Thermadyne Barbados (the “Barbados Liquidation”), and agree that
consummation of the Barbados Liquidation shall not result in a Default or Event of Default under
the Credit Agreement, so long as the Barbados Liquidation is consummated in accordance with
applicable law and any remaining assets of Thermadyne Barbados are contributed, conveyed or
otherwise transferred to a Borrower.
3. Amendment to Annex A. Annex of the Credit Agreement is hereby amended by
adding the following defined term in its applicable alphabetical order:
““South African Purchase Agreement” means that certain Sale of Shares and Claims
Agreement to be dated on or prior to February 15, 2007 (which shall be substantially similar to the
draft previously delivered to Agent) between Industries, as seller, and Business Venture
Investments No. 1044 (Proprietary) Limited, as purchaser, in connection with the sale of Maxweld &
Braze (Proprietary) Limited and Thermadyne South Africa (Proprietary) Limited, as in effect on the
date hereof.”
4. Amendment to Section 6.8. Section 6.8 of the Credit Agreement is hereby
amended by (i) replacing the word “and” at the of clause (h) thereto with a comma and (ii)
replacing the period at the end of clause (i) thereto with:
“and (j) the sale on or prior to May 31, 2007 of all the Stock of (1) Xxxxxxx & Braze
(Pty) Ltd. and (2) Thermadyne South Africa (Pty) Ltd., in the case of clauses (1) and (2)
for an aggregate purchase price of no less than One Hundred and
Thirty Million Rand (R130,000,000) (of which R100,000,000 shall be
payable on the closing of such sales and R30,000,000 payable in accordance with the terms of the South African Purchase Agreement), so
long as the net proceeds of such sales are distributed to a Borrower.”
5. 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.
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6.
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 the Lenders and the Credit Parties;
(b) the Agent shall have received a copy of a fully executed and delivered consent, in
form and substance satisfactory to Agent, to that certain Second Lien Credit Agreement, dated
as of July 29, 2004, by and among the Borrowers, Credit Suisse and the other Persons
signatory 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.
7. Delivery of Notes. Borrowers shall deliver to Agent the original notes evidencing
(a) the Brazil Loan on or prior to February 2, 2007 and (b) the deferred purchase price payable to
Industries in accordance with the South African Purchase Agreement on or prior five days after
consummation of the transactions contemplated therein, each together with an allonge executed in
blank.
8. 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 consent set forth herein is effective solely for the purposes set forth herein
and shall be limited precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the Credit Agreement or
any other Loan Document, (ii) operate as a consent, 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 (iii) constitute a
consent or 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.
9. 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.
10. 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.
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11. 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.
12. 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/ [ILLEGIBLE] | |||
| Duly Authorized Signatory | ||||
| CREDIT PARTIES: | ||||
| THERMADYNE INDUSTRIES, INC. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| THERMAL DYNAMICS CORPORATION | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| TWECO PRODUCTS, INC. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & X. X. | |||
| XXXXXX EQUIPMENT COMPANY | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
S-1
| C & G SYSTEMS, INC. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & X. X. | |||
| XXXXXX COMPANY | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| THERMAL ARC, INC. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| THERMADYNE INTERNATIONAL CORP. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| PROTIP CORPORATION | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| THERMADYNE HOLDINGS CORPORATION | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| MECO HOLDING COMPANY | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| C&G SYSTEMS HOLDING, INC. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| THERMADYNE AUSTRALIA PTY LTD. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| DUXTECH PTY LTD. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| CIGWELD PTY LTD. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| QUETALA PTY. LTD. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| QUETACK PTY. LTD. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| THERMADYNE WELDING PRODUCTS CANADA LIMITED | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
| THERMADYNE INDUSTRIES LIMITED | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | XXXXXXXX X. XXXXXXXX | |||
| Title: | V. P. SECTY & G. C. | |||
