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Exhibit 10.6
MASTER GUARANTEE REIMBURSEMENT AGREEMENT
This AGREEMENT is entered into as of the 26th day of November 1996 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 in the past have entered into, and
wish to enter into in the future, various financial transactions, such as
convertible or nonconvertible debt, bank loans, and equity offerings, and other
contractual arrangements with third parties (the "Underlying Obligations");
WHEREAS, the Majority Owned Subsidiaries acknowledge that they may be
unable to enter into many kinds of Underlying Obligations without a guarantee of
their performance thereunder from the Parent (a "Parent Guarantee");
WHEREAS, certain Majority Owned Subsidiaries ("Second Tier Majority Owned
Subsidiaries ") are themselves 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 are often demanded and given without
the respective First Tier Majority Owned Subsidiary also issuing a guarantee of
such Underlying Obligation;
WHEREAS, the Parent is willing to consider continuing to issue Parent
Guarantees, 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, after the date hereof, 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 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, 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
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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.
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.
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 and (b) responsibility of the Parent by operation of law for the
acts and omissions of the Majority Owned Subsidiary, 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 under the relevant
Underlying Obligation. Such Majority Owned Subsidiary(s) shall have the
right, at its own expense, to contest the claim of such beneficiary. If a
Majority Owned Subsidiary 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 and a beneficiary of a
Parent Guarantee shall not affect such Majority Owned Subsidiary's
obligation to promptly indemnify the Parent hereunder.
4. All payments required to be made by a Majority Owned Subsidiary shall be
made within two days after receipt of notice from the Parent.
5. 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:
METRIKA SYSTEMS CORPORATION
By:
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Title:
