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EXHIBIT 10.5
AMENDED AND RESTATED MASTER GUARANTEE REIMBURSEMENT
AND LOAN AGREEMENT
This AGREEMENT is entered into as of the 5th day of January, 1998, by and
among Thermo Electron Corporation (the "Parent") and those of its subsidiaries
that join in this Agreement by executing the signature page hereto (the
"Majority Owned Subsidiaries").
WITNESSETH:
WHEREAS, the majority owned subsidiaries and their wholly-owned
subsidiaries wish to enter into various financial transactions, such as
convertible or nonconvertible debt, loans, and equity offerings, and other
contractual arrangements with third parties (the "Underlying Obligations") and
may provide credit support to, on behalf of or for the benefit of, other
subsidiaries of the Parent ("Credit Support Obligations");
WHEREAS, the Majority Owned Subsidiaries and the Parent acknowledge that
the Majority Owned Subsidiaries and their wholly-owned subsidiaries may be
unable to enter into many kinds of Underlying Obligations without a guarantee of
their performance thereunder from the Parent (a "Parent Guarantee") or without
obtaining Credit Support Obligations from other Majority Owned Subsidiaries;
WHEREAS, the Majority Owned Subsidiaries and their wholly-owned
subsidiaries may borrow funds from the Parent, and the Parent may loan funds or
provide credit to the Majority Owned Subsidiaries and their wholly-owned
subsidiaries, on a short-term and unsecured basis;
WHEREAS, certain Majority Owned Subsidiaries ("Second Tier Majority Owned
Subsidiaries ") may themselves be majority owned subsidiaries of other Majority
Owned Subsidiaries ("First Tier Majority Owned Subsidiaries");
WHEREAS, for various reasons, Parent Guarantees of a Second Tier Majority
Owned Subsidiary's Underlying Obligations may be demanded and given without the
respective First Tier Majority Owned Subsidiary also issuing a guarantee of such
Underlying Obligation;
WHEREAS, the Parent may itself make a loan or provide other credit to a
Second Tier Majority Owned Subsidiary or its wholly-owned subsidiaries under
circumstances where the applicable First Tier Majority Owned Subsidiary does not
provide such credit; and
WHEREAS, the Parent is willing to consider continuing to issue Parent
Guarantees and providing credit, and the Majority Owned Subsidiaries are willing
to consider continuing to provide Credit Support Obligations and to borrow
funds, on the terms and conditions set forth below;
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NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party hereto, the parties agree as follows:
1. If the Parent provides a Parent Guarantee of an Underlying Obligation, and
the beneficiary(ies) of the Parent Guarantee enforce the Parent Guarantee,
or the Parent performs under the Parent Guarantee for any other reason,
then the Majority Owned Subsidiary that is obligated, either directly or
indirectly through a wholly-owned subsidiary, under such Underlying
Obligation shall indemnify and save harmless the Parent from any liability,
cost, expense or damage (including reasonable attorneys' fees) suffered by
the Parent as a result of the Parent Guarantee. If the Underlying
Obligation is issued by a Second Tier Majority Owned Subsidiary or a
wholly-owned subsidiary thereof, and such Second Tier Majority Owned
Subsidiary is unable to fully indemnify the Parent (because of the poor
financial condition of such Second Tier Majority Owned Subsidiary, or for
any other reason), then the First Tier Majority Owned Subsidiary that owns
the majority of the stock of such Second Tier Majority Owned Subsidiary
shall indemnify and save harmless the Parent from any remaining liability,
cost, expense or damage (including reasonable attorneys' fees) suffered by
the Parent as a result of the Parent Guarantee. If a Majority Owned
Subsidiary or a wholly-owned subsidiary thereof provides a Credit Support
Obligation for any subsidiary of the Parent, other than a subsidiary of
such Majority Owned Subsidiary, and the beneficiary(ies) of the Credit
Support Obligation enforce the Credit Support Obligation, or the Majority
Owned Subsidiary or its wholly-owned subsidiary performs under the Credit
Support Obligation for any other reason, then the Parent shall indemnify
and save harmless the Majority Owned Subsidiary or its wholly-owned
subsidiary, as applicable, from any liability, cost, expense or damage
(including reasonable attorneys' fees) suffered by the Majority Owned
Subsidiary or its wholly-owned subsidiary, as applicable, as a result of
the Credit Support Obligation. Without limiting the foregoing, Credit
Support Obligations include the deposit of funds by a Majority Owned
Subsidiary or a wholly-owned subsidiary thereof in a credit arrangement
with a banking facility whereby such funds are available to the banking
facility as collateral for overdraft obligations of other Majority Owned
Subsidiaries or their subsidiaries also participating in the credit
arrangement with such banking facility.
2. For purposes of this Agreement, the term "guarantee" shall include not only
a formal guarantee of an obligation, but also any other arrangement where
the Parent is liable for the obligations of a Majority Owned Subsidiary or
its wholly-owned subsidiaries. Such other arrangements include (a)
representations, warranties and/or covenants or other obligations joined in
by the Parent, whether on a joint or joint and several basis, for the
benefit of the Majority Owned Subsidiary or its wholly-owned subsidiaries
and (b) responsibility of the Parent by operation of law for the acts and
omissions of the Majority Owned Subsidiary or its wholly-owned
subsidiaries, including controlling person liability under securities and
other laws.
3. Promptly after the Parent receives notice that a beneficiary of a Parent
Guarantee is seeking to enforce such Parent Guarantee, the Parent shall
notify the Majority Owned
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Subsidiary(s) obligated, either directly or indirectly through a
wholly-owned subsidiary, under the relevant Underlying Obligation. Such
Majority Owned Subsidiary(s) or wholly-owned subsidiary thereof, as
applicable, shall have the right, at its own expense, to contest the claim
of such beneficiary. If a Majority Owned Subsidiary or wholly-owned
subsidiary thereof, as applicable, is contesting the claim of such
beneficiary, the Parent will not perform under the relevant Parent
Guarantee unless and until, in the Parent's reasonable judgment, the Parent
is obligated under the terms of such Parent Guarantee to perform. Subject
to the foregoing, any dispute between a Majority Owned Subsidiary or
wholly-owned subsidiary thereof, as applicable, and a beneficiary of a
Parent Guarantee shall not affect such Majority Owned Subsidiary's
obligation to promptly indemnify the Parent hereunder. Promptly after a
Majority Owned Subsidiary or wholly-owned subsidiary thereof, as
applicable, receives notice that a beneficiary of a Credit Support
Obligation is seeking to enforce such Credit Support Obligation, the
Majority Owned Subsidiary shall notify the Parent. The Parent shall have
the right, at its own expense, to contest the claim of such beneficiary. If
the Parent or the subsidiary of the Parent on whose behalf the Credit
Support Obligation is given is contesting the claim of such beneficiary,
the Majority Owned Subsidiary or wholly-owned subsidiary thereof, as
applicable, will not perform under the relevant Credit Support Obligation
unless and until, in the Majority Owned Subsidiary's reasonable judgment,
the Majority Owned Subsidiary or wholly-owned subsidiary thereof, as
applicable, is obligated under the terms of such Credit Support Obligation
to perform. Subject to the foregoing, any dispute between the Parent or the
subsidiary of the Parent on whose behalf the Credit Support Obligation was
given, on the one hand, and a beneficiary of a Credit Support Obligation,
on the other, shall not affect the Parent's obligation to promptly
indemnify the Majority Owned Subsidiary or its wholly-owned subsidiary, as
applicable, hereunder.
4. Upon the request of a Majority Owned Subsidiary, the Parent may make loans
and advances to the Majority Owned Subsidiary or its wholly-owned
subsidiaries on a short-term, revolving credit basis, from time to time in
such amounts as mutually determined by the Parent and the Majority Owned
Subsidiary. The aggregate principal amount of such loans and advances shall
be reflected on the books and records of the Majority Owned Subsidiary (or
wholly-owned subsidiary, as applicable) and the Parent. All such loans and
advances shall be on an unsecured basis unless specifically provided
otherwise in loan documents executed at that time. The Majority Owned
Subsidiary or its wholly-owned subsidiaries, as applicable, shall pay
interest on the aggregate unpaid principal amount of such loans from time
to time outstanding at a rate ("Interest Rate") equal to the rate of the
Commercial Paper Composite Rate for 90-day maturities as reported by
Xxxxxxx Xxxxx Capital Markets, as an average of the last five business days
of such Majority Owned Subsidiary's latest fiscal quarter then ended, plus
twenty-five (25) basis points. The Interest Rate shall be adjusted on the
first business day of each fiscal quarter of such Majority Owned Subsidiary
pursuant to the Interest Rate formula contained in the preceding sentence
and shall be in effect for the entirety of such fiscal quarter. Interest
shall be computed on a 360-day basis. The aggregate principal amount
outstanding and accrued interest thereon shall be payable on demand. The
principal and accrued interest may be paid by the Majority Owned
Subsidiaries or their wholly-owned
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subsidiaries, as applicable, at any time or from time to time, in whole or
in part, without premium or penalty. All payments shall be applied first to
accrued interest and then to principal. Principal and interest shall be
payable in lawful money of the United States of America, in immediately
available funds, at the principal office of the Parent or at such other
place as the Parent may designate from time to time in writing to the
Majority Owned Subsidiary. The unpaid principal amount of any such
borrowings, and accrued interest thereon, shall become immediately due and
payable, without demand, upon the failure of the Majority Owned Subsidiary
or its wholly-owned subsidiary, as applicable, to pay its debts as they
become due, the insolvency of the Majority Owned Subsidiary or its
wholly-owned subsidiary, as applicable, the filing by or against the
Majority Owned Subsidiary or its wholly-owned subsidiary, as applicable, of
any petition under the U.S. Bankruptcy Code (or the filing of any similar
petition under the insolvency law of any jurisdiction), or the making by
the Majority Owned Subsidiary or its wholly-owned subsidiary, as
applicable, of an assignment or trust mortgage for the benefit of creditors
or the appointment of a receiver, custodian or similar agent with respect
to, or the taking by any such person of possession of, any property of the
Majority Owned Subsidiary or its wholly-owned subsidiary, as applicable. In
case any payments of principal and interest shall not be paid when due, the
Majority Owned Subsidiary or its wholly-owned subsidiary, as applicable,
further promises to pay all cost of collection, including reasonable
attorneys' fees.
5. If the Parent makes a loan or provides other credit ("Credit Extension") to
a Second Tier Majority Owned Subsidiary, the First Tier Majority Owned
Subsidiary that owns the majority of the stock of such Second Tier Majority
Owned Subsidiary hereby guarantees the Second Tier Majority Owned
Subsidiary's obligations to the Parent thereunder. Such guaranty shall be
enforced only after the Parent, in its reasonable judgment, determines that
the Second Tier Majority Owned Subsidiary is unable to fully perform its
obligations under the Credit Extension. If the Parent provides Credit
Extension to a wholly-owned subsidiary of a Second Tier Majority Owned
Subsidiary, the Second Tier Majority Owned Subsidiary hereby guarantees it
wholly-owned subsidiary's obligations to the Parent thereunder and the
First Tier Majority Owned Subsidiary that owns the majority of the stock of
such Second Tier Majority Owned Subsidiary hereby guarantees the Second
Tier Majority Owned Subsidiary's obligations to the Parent hereunder. Such
guaranty by the First Tier Majority Owned Subsidiary shall be enforced only
after the Parent, in its reasonable judgment, determines that the Second
Tier Majority Owned Subsidiary is unable to fully perform its guaranty
obligation hereunder.
6. All payments required to be made by a Majority Owned Subsidiary or its
wholly-owned subsidiaries, as applicable, shall be made within two days
after receipt of notice from the Parent. All payments required to be made
by the Parent shall be made within two days after receipt of notice from
the Majority Owned Subsidiary.
7. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts applicable to contracts made and
performed therein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the date first above written.
THERMO ELECTRON CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Treasurer
ONIX SYSTEMS INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
