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EXHIBIT 10.6
MASTER GUARANTEE REIMBURSEMENT
AND LOAN AGREEMENT
This AGREEMENT is entered into as of the day of by and among
Thermo Instrument Systems Inc. (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; 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;
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 a Majority Owned
Subsidiary or a
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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 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,
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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 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
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subsidiary, as applicable, further promises to pay all cost of collection,
including reasonable attorneys' fees.
5. 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.
6. 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 INSTRUMENT SYSTEMS INC.
By:
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Title:
THERMO VISION CORPORATION
By:
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Title:
