UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): June 30, 2005
THERMO ELECTRON CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 1-8002 04-2209186
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
81 Wyman Street, P.O. Box 9046 02454-9046
Waltham, Massachusetts (Zip Code)
(Address of Principal Executive Offices)
(781) 622-1000
Registrant's telephone number, including area code
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On June 30, 2005, Thermo Electron Corporation (the "Company") entered into a
credit agreement relating to a five-year senior unsecured European revolving
credit facility (the "Credit Agreement") in principal amount of 175 million
Euros, among the Company, as Guarantor; Thermo Luxembourg Holding S.a.r.l., a
private limited liability company incorporated under the laws of the Grand Duchy
of Luxembourg ("Thermo Luxembourg") and an indirect wholly-owned subsidiary of
the Company, as a Borrower; Thermo Finance Company B.V., a Netherlands company
("Thermo Finance B.V.") and an indirect wholly-owned subsidiary of the Company,
as a Borrower; the several banks and other financial institutions or entities
from time to time parties thereto (initially consisting of ABN AMRO Bank, N.V.,
Barclays Bank PLC, Bank of Tokyo-Mitsubishi Trust Company, JPMorgan Chase Bank,
N.A., Banca Intesa SpA, Bank Austria Creditanstalt AG, BNP Paribas, and Key Bank
N.A.), as lenders; ABN AMRO Bank, N.V., as Administrative Agent, the Sole
Bookrunner, and a Lead Arranger; Barclays Bank PLC, as co-Documentation Agent;
JPMorgan Chase Bank, N.A., as co-Documentation Agent; and Bank of
Tokyo-Mitsubishi Trust Company, as Syndication Agent.
Under the Credit Agreement, the Company has unconditionally and irrevocably
guaranteed the obligations under the Credit Agreement of Thermo Luxembourg,
Thermo Finance B.V., and any European subsidiary of the Company that becomes a
borrower under the Credit Agreement (each, an "additional Borrower").
The obligations of Thermo Luxembourg, Thermo Finance B.V., and any
additional Borrower under the Credit Agreement may be accelerated upon the
occurrence of an event of default under the Credit Agreement, which includes
customary events of default including, without limitation, payment defaults,
defaults in the performance of affirmative and negative covenants, the
inaccuracy of representations or warranties, bankruptcy and insolvency related
defaults, defaults relating to such matters as ERISA, uninsured judgments and
the failure to pay certain indebtedness, and a change of control default.
In addition, the Credit Agreement contains affirmative, negative and financial
covenants customary for financings of this type. The negative covenants include
restrictions on standby and performance letters of credit, indebtedness of
subsidiaries of the Company, liens, fundamental changes, dispositions of
property and investments. The financial covenants include interest coverage and
debt-to-capital ratios of the Company.
The forgoing description of the Credit Agreement does not purport to be complete
and is qualified in its entirety by reference to the full text of the Credit
Agreement, which is filed with this report as Exhibit 99.1 and is incorporated
herein by reference.
In the ordinary course of business, certain of the lenders under the Credit
Agreement and their affiliates have provided, and may in the future provide,
investment banking, commercial banking, cash management, foreign exchange or
other financial services to the Company for which they have received
compensation and may receive compensation in the future. Barclays Bank PLC,
JPMorgan Chase Bank, N.A., ABN AMRO Bank, N.V., Key Bank N.A., Banca Intesa SpA
and Bank of Tokyo-Mitsubishi Trust Company are lenders under the Company's
five-year $250 million revolving credit facility expiring in December 2009.
Barclays Bank PLC is the lender to the Company under a $150 million short-term
uncommitted credit facility. JPMorgan Chase Bank, N.A. also provides the Company
with an uncommitted line of credit of up to $250 million in aggregate principal
amount through a series of short-term money market loans funded on an ongoing
basis in the secondary market (the "Money Market Loan Program"), and serves as
trustee under the Indenture for the Company's 5% Senior Notes due 2015.
2
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 above with respect to the Credit
Agreement is incorporated herein in its entirety.
On July 6, 2005, Thermo Luxembourg borrowed 150 million Euros under the Credit
Agreement at an initial interest rate of 2.454%, a portion of which was used to
repay $135 million of the aggregate amount outstanding under the Money Market
Loan Program.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits.
No. Description
99.1 Credit Agreement among the Company, Thermo Luxembourg Holding
S.a.r.l., Thermo Finance Company B.V., the several banks and
other financial institutions or entities from time to time
parties thereto, ABN AMRO Bank, N.V., as Administrative Agent,
Sole Bookrunner and a Lead Arranger, Barclays Bank PLC, as
co-Documentation Agent, JP Morgan Chase Bank, N.A., as
co-Documentation Agent, and Bank of Tokyo-Mitsubishi Trust
Company, as Syndication Agent, dated June 30, 2005.
3
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THERMO ELECTRON CORPORATION
Date: July 7, 2005 By: /s/ Peter E. Hornstra
--------------------------------
Peter E. Hornstra
Chief Accounting Officer
4
Exhibit 99.1
EXECUTION COPY
================================================================================
(euro)175,000,000
FIVE-YEAR CREDIT AGREEMENT
among
THERMO LUXEMBOURG HOLDING S.A.R.L., as Borrower
THERMO FINANCE COMPANY B.V., as Borrower
The Additional Borrowers from Time to Time Parties Hereto,
THERMO ELECTRON CORPORATION, as Guarantor
The Several Lenders from Time to Time Parties Hereto,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Syndication Agent,
BARCLAYS BANK PLC
and
JPMORGAN CHASE BANK, N.A.,
as Co-Documentation Agents,
and
ABN AMRO BANK N.V.,
as Administrative Agent
Dated as of June 30, 2005
================================================================================
ABN AMRO BANK N.V., as the Sole Bookrunner
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.....................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions..................................................................16
1.3 Dutch Terms....................................................................................16
1.4 Luxembourg Terms...............................................................................17
1.5 Exchange Rates.................................................................................17
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................................................17
2.1 Commitments....................................................................................17
2.2 Procedure for Borrowing........................................................................17
2.3 Fees...........................................................................................18
2.4 Optional Termination or Reduction of Commitments...............................................18
2.5 Optional Prepayments...........................................................................18
2.6 Mandatory Prepayments..........................................................................19
2.7 Continuation Options...........................................................................19
2.8 Limitations on Tranches........................................................................19
2.9 Repayment of Loans.............................................................................19
2.10 Interest Rates and Payment Dates...............................................................20
2.11 Computation of Interest and Fees...............................................................20
2.12 Inability to Determine Interest Rate...........................................................20
2.13 Pro Rata Treatment and Payments................................................................21
2.14 Requirements of Law............................................................................22
2.15 Taxes..........................................................................................25
2.16 Indemnity......................................................................................26
2.17 Change of Lending Office.......................................................................26
2.18 Replacement of Lenders.........................................................................27
2.19 Judgment Currency..............................................................................27
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................................................28
3.1 Financial Condition............................................................................28
3.2 No Change......................................................................................29
3.3 Existence; Compliance with Law.................................................................29
3.4 Power; Authorization; Enforceable Obligations..................................................29
3.5 No Legal Bar...................................................................................29
3.6 Litigation.....................................................................................29
3.7 Ownership of Property; Liens...................................................................30
3.8 Taxes..........................................................................................30
3.9 Federal Regulations............................................................................30
3.10 ERISA..........................................................................................30
3.11 Investment Company Act; Other Regulations......................................................31
3.12 Use of Proceeds................................................................................31
-i-
3.13 Environmental Matters..........................................................................31
3.14 Accuracy of Information, etc...................................................................32
3.15 Dutch Banking Act..............................................................................32
SECTION 4. CONDITIONS PRECEDENT...........................................................................32
4.1 Conditions to Initial Loans....................................................................32
4.2 Conditions to Each Loan........................................................................33
4.3 Conditions for Additional Borrowers............................................................33
SECTION 5. AFFIRMATIVE COVENANTS..........................................................................34
5.1 Financial Statements...........................................................................34
5.2 Certificates; Other Information................................................................34
5.3 Payment of Obligations.........................................................................35
5.4 Maintenance of Existence; Compliance...........................................................35
5.5 Maintenance of Property; Insurance.............................................................35
5.6 Inspection of Property; Books and Records; Discussions.........................................36
5.7 Notices........................................................................................36
5.8 Environmental Laws.............................................................................36
5.9 "Know Your Customer" Checks....................................................................37
SECTION 6. NEGATIVE COVENANTS.............................................................................37
6.1 Financial Condition Covenants..................................................................38
6.2 Standby and Performance Letters of Credit......................................................38
6.3 Indebtedness of Subsidiaries...................................................................38
6.4 Liens..........................................................................................39
6.5 Fundamental Changes............................................................................40
6.6 Disposition of Property........................................................................41
6.7 Investments....................................................................................41
6.8 Transactions with Affiliates...................................................................42
6.9 Changes in Fiscal Periods......................................................................43
6.10 Lines of Business..............................................................................43
SECTION 7. EVENTS OF DEFAULT..............................................................................43
SECTION 8. THE AGENTS.....................................................................................45
8.1 Appointment....................................................................................45
8.2 Delegation of Duties...........................................................................45
8.3 Exculpatory Provisions.........................................................................46
8.4 Reliance by Administrative Agent...............................................................46
8.5 Notice of Default..............................................................................46
8.6 Non-Reliance on Agents and Other Lenders.......................................................47
8.7 Indemnification................................................................................47
8.8 Agent in Its Individual Capacity...............................................................48
8.9 Successor Administrative Agent.................................................................48
-ii-
8.10 Syndication Agent and Co-Documentation Agents..................................................48
SECTION 9. THERMO ELECTRON GUARANTEE......................................................................48
9.1 Guarantee......................................................................................48
9.2 No Subrogation.................................................................................49
9.3 Amendments, etc. with respect to the Obligations...............................................49
9.4 Guarantee Absolute and Unconditional...........................................................50
9.5 Reinstatement..................................................................................50
9.6 Payments.......................................................................................51
9.7 Independent Obligations........................................................................51
SECTION 10. MISCELLANEOUS..................................................................................51
10.1 Amendments and Waivers.........................................................................51
10.2 Notices........................................................................................52
10.3 No Waiver; Cumulative Remedies.................................................................53
10.4 Survival of Representations and Warranties.....................................................54
10.5 Payment of Expenses............................................................................54
10.6 Successors and Assigns; Participations and Assignments.........................................55
10.7 Adjustments; Set-off...........................................................................58
10.8 Counterparts...................................................................................59
10.9 Severability...................................................................................59
10.10 Integration....................................................................................60
10.11 GOVERNING LAW..................................................................................60
10.12 Submission To Jurisdiction; Waivers............................................................60
10.13 Acknowledgements...............................................................................60
10.14 Confidentiality................................................................................61
10.15 WAIVERS OF JURY TRIAL..........................................................................62
10.16 USA PATRIOT Act................................................................................62
10.17 Professional Market Party......................................................................62
SCHEDULES:
1.1(a) Commitments
1.1(b) Mandatory Cost Formulae
6.3(b) Existing Indebtedness
6.4(f) Existing Liens
6.6 Certain Dispositions
EXHIBITS:
A Form of Compliance Certificate
B Form of Closing Certificate
C Form of Assignment and Assumption
D-1 Form of Legal Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to Thermo Electron and
its Subsidiaries
-iii-
D-2 Form of Legal Opinion of Seth Hoogasian, General Counsel of Thermo Electron
D-3 Form of Legal Opinion of Allen & Overy, local counsel to the Lenders in The Netherlands
D-4 Form of Legal Opinion of Allen & Overy, local counsel to the Lenders in Luxembourg
E Form of Supplemental Borrower Agreement
-iv-
FIVE-YEAR CREDIT AGREEMENT, dated as of June 30, 2005 (this "Agreement"),
among THERMO LUXEMBOURG HOLDING S.A.R.L., a private limited liability company
(societe a responsabilite limitee) incorporated under the laws of the Grand
Duchy of Luxembourg having its registered office at 13, boulevard du Prince
Henri, L-1724 Luxembourg and registered with the Luxembourg trade and companies
register under number B. 85.261 ("Thermo Luxembourg"), THERMO FINANCE COMPANY
B.V., a Netherlands company ("Thermo Finance B.V."), and the Additional
Borrowers (as defined below) (together with Thermo Luxembourg and Thermo Finance
B.V., the "Borrowers" and each, individually, a "Borrower"), THERMO ELECTRON
CORPORATION, a Delaware corporation ("Thermo Electron"), the several banks and
other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as
syndication agent (in such capacity, the "Syndication Agent"), BARCLAYS BANK PLC
and JPMORGAN CHASE BANK, N.A., as co-documentation agents (in such capacity, the
"Co-Documentation Agents"), and ABN AMRO BANK N.V., as administrative agent (in
such capacity, the "Administrative Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"Acquired Indebtedness": Indebtedness of any Person outstanding on the date
(i) such Person is acquired by Thermo Electron or any of its Subsidiaries or
(ii) such Indebtedness is assumed by Thermo Electron or any of its Subsidiaries
in connection with the acquisition of a business of such Person, in each case in
a transaction permitted by Section 6.7(f) or (h), provided that such
Indebtedness was not created in contemplation or in connection with such
acquisition.
"Additional Borrowers": collectively, each European Subsidiary of Thermo
Electron that shall become a Borrower under this Agreement upon satisfaction of
the conditions precedent set forth in Section 4.3.
"Administrative Agent": ABN AMRO Bank N.V., as a lead arranger of the
Commitments and as the administrative agent for the Lenders under this Agreement
and the other Loan Documents, together with any of its successors.
"Affected Currency": as defined in Section 2.12(c).
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 15% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
2
"Agents": the collective reference to the Syndication Agent, the
Co-Documentation Agents, and the Administrative Agent.
"Agreement": as defined in the preamble hereto.
"Agreement Currency": as defined in Section 2.19(b).
"Alternate Currency": (a) each of Dollars and Sterling and (b) with the
prior written consent of the Administrative Agent and each Lender in accordance
with Section 10.1(v), any other currency.
"Alternate Currency Loans": Loans denominated in any Alternate Currency.
"Approved Fund": as defined in Section 10.6(b).
"Assignee": as defined in Section 10.6(b).
"Assignment and Assumption": an Assignment and Assumption, substantially in
the form of Exhibit C.
"Available Commitment": as to any Lender at any time, an amount equal to
the excess, if any, of (a) such Lender's Commitment then in effect over (b) the
sum of (i) such Lender's Euro Loans and (ii) the Euro Equivalent of such
Lender's Alternate Currency Loans.
"Benefited Lender": as defined in Section 10.7(a).
"Board": the Board of Governors of the Federal Reserve System of the United
States (or any successor).
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by any Borrower as a date on
which such Borrower requests the Lenders to make Loans hereunder.
"Bridge Credit Agreement": the existing $570,000,000 Credit Agreement,
dated as of May 9, 2005, among Thermo Electron, the several lenders from time to
time parties thereto, Barclays Bank PLC, as syndication agent, ABN AMRO Bank
N.V., as documentation agent and JPMorgan Chase Bank N.A., as administrative
agent.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in New York City or London are authorized or required by law to
close; provided, that, when used in connection with Euro Loans, the term
"Business Day" shall also exclude any day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer System (TARGET) (or, if such
clearing system ceases to be operative, such other clearing system (if any)
determined by the Administrative Agent to be a suitable replacement) is not open
for settlement of payment in Euros.
3
"Capital Lease Obligations": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within three years from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or bank
deposits (including those maintained to facilitate payments, distributions and
collections) having maturities of eighteen months or less from the date of
acquisition issued by or with any Lender or by or with any commercial bank
organized under the laws of the United States or any state thereof or by any
financial institution organized in any foreign country recognized by the United
States, in each case rated at least A- by S&P, or A-3 by Moody's; (c) (i)
commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody's, or
carrying an equivalent rating by a nationally recognized rating agency, if both
of the Rating Agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition or (ii)
commercial paper issued by Ford Motor Company, Ford Motor Credit Company,
DaimlerChrysler NA Holdings, John Deere Capital Corp., John Deere Credit Inc.,
Deere & Co., Walt Disney Company, General Motors Corp., or General Motors
Acceptance Corp., which at the time of purchase is rated at least A-2 by S&P, or
P-2 by Moody's, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30
days, with respect to securities issued or fully guaranteed or insured by the
United States government; (e) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A- by S&P or A-3 by Moody's; (f) securities with maturities or
put features of six months or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank satisfying
the requirements of clause (b) of this definition; (g) asset-backed,
mortgaged-backed or otherwise collateralized securities rated at least AA or an
equivalent rating by two of the following rating agencies: S&P, Moody's and
Fitch Investor Services, Inc., (h) corporate bonds or notes with maturities of
three years or less and rated at least BBB- by S&P or Baa3 by Moody's, (i) money
market mutual or similar funds that invest primarily in assets satisfying the
requirements of clauses (a) through (h) of this definition; or (j) money market
funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the
Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P or Aaa by
Moody's
4
and (iii) have portfolio assets of at least $5,000,000,000.
"Closing Date": the date on which the conditions precedent set forth in
Section 4.1 shall have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Co-Documentation Agents": as defined in the preamble hereto.
"Commitment": as to any Lender, the obligation of such Lender, if any, to
make Loans in an aggregate Euro and Euro Equivalent principal amount initially
not to exceed the amount set forth under the heading "Commitment" opposite such
Lender's name on Schedule 1.1(a) and thereafter the amount set forth under the
heading "Commitment" opposite such Lender's name in the Register, as the same
may be changed from time to time pursuant to the terms hereof. The original
amount of the Total Commitments is (euro)175,000,000.
"Commitment Fee": as defined in Section 2.3(a).
"Commitment Fee Rate": as determined pursuant to the Pricing Grid.
"Commitment Period": the period from and including the Closing Date to the
date that is one month prior to the Termination Date.
"Commonly Controlled Entity": an entity, whether or not incorporated, that
is under common control with Thermo Electron within the meaning of Section 4001
of ERISA or is part of a group that includes Thermo Electron and that is treated
as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit A.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall (a) be entitled to receive any greater
amount pursuant to Section 2.14, 2.15, 2.16 or 10.5 than the designating Lender
would have been entitled to receive in respect of the extensions of credit made
by such Conduit Lender or (b) be deemed to have any Commitment.
"Confidential Information Package": the Confidential Information Package
dated June 2, 2005 and furnished to certain Lenders.
"Consolidated EBITDA": for any period, Consolidated Net Income for such
period plus, without duplication and to the extent reflected as a charge in the
statement of such
5
Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
interest expense, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (c) depreciation and amortization expense,
(d) amortization of intangibles and organization costs, (e) any extraordinary,
unusual or non-recurring non-cash expenses or losses (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated
Net Income for such period, non-cash losses on sales of assets outside of the
ordinary course of business), (f) any extraordinary, unusual or non-recurring
cash expenses or losses to the extent that they do not exceed, in the aggregate,
$25,000,000 during such period, and (g) stock-based compensation expense, minus,
to the extent included in the statement of such Consolidated Net Income for such
period, the sum of (i) interest income, (ii) any extraordinary, unusual or
non-recurring non-cash income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, non-cash gains on the sales of assets outside of the ordinary
course of business), (iii) any extraordinary, unusual or non-recurring cash
income or gains to the extent they exceed, in the aggregate, $25,000,000 during
such period, (iv) income tax credits (to the extent not netted from income tax
expense) and (v) any other non-cash income.
"Consolidated Interest Coverage Ratio": for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated Interest Expense": for any period, total interest expense
(including that attributable to Capital Lease Obligations) of Thermo Electron
and its Subsidiaries for such period with respect to all outstanding
Indebtedness of Thermo Electron and its Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to bankers' acceptance
financing and net costs under Swap Agreements in respect of interest rates to
the extent such net costs are allocable to such period in accordance with GAAP).
"Consolidated Net Income": for any period, the consolidated net income (or
loss) of Thermo Electron and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Worth": at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of Thermo
Electron and its Subsidiaries under stockholders' equity at such date.
"Consolidated Total Assets": at any date, the amount that would, in
conformity with GAAP, be included on a consolidated balance sheet of Thermo
Electron and its Subsidiaries as the total of all asset categories at such date.
"Consolidated Total Capitalization": at any date, the sum of (a)
Consolidated Net Worth on such date and (b) Consolidated Total Debt on such
date.
"Consolidated Total Debt": at any date, the aggregate principal amount of
all Indebtedness of Thermo Electron and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
6
"Consolidated Total Debt to Consolidated Total Capitalization Ratio": on
any date, the ratio of (a) Consolidated Total Debt on such date to (b)
Consolidated Total Capitalization on such date. "Continuing Directors": the
directors of Thermo Electron on the Closing Date, and each other director whose
election by the board of directors of Thermo Electron, or whose nomination for
election by the stockholders of Thermo Electron, was approved by a vote of at
least a majority of the directors of Thermo Electron who were either directors
on the Closing Date or whose election or nomination for election was previously
so approved.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Current Litigation": the litigation described in the first paragraph of
Item 12 of the Notes to Consolidated Financial Statements included in Thermo
Electron's Quarterly Report on Form 10-Q for the quarter ended April 2, 2005.
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Disposition": with respect to any property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof. The
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollar Loans": Loans denominated in Dollars.
"Dollars" and "$": dollars in lawful currency of the United States.
"Dutch Banking Act": the Dutch Act on the Supervision of the Credit System
1992 (Wet toezicht kredietwezen 1992), including the Dutch Exemption Regulation.
"Dutch Borrower": a Borrower incorporated in the Netherlands.
"Dutch Exemption Regulation": the Exemption Regulation of the Dutch
Minister of Finance (Vrijstellingsregeling Wtk 1992).
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"EURIBOR Rate": with respect to an Interest Period pertaining to any Euro
Loan, the rate of interest determined on the basis of the rate for deposits in
Euros for a period
7
equal to such Interest Period commencing on the first day of such Interest
Period appearing on page EURIBOR01 of the Reuters screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest Period.
In the event that such rate does not appear on such page of the Reuters screen
(or otherwise on the Reuters Service), the "EURIBOR Rate" shall instead be the
interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the average of the rates at which deposits in Euros approximately equal
in principal amount to the portion of the Tranche of the Lender serving as
Administrative Agent for a maturity comparable to such Interest Period, are
offered by the principal London office of ABN AMRO Bank N.V. for immediately
available funds in the London interbank market at approximately 11:00 A.M.,
London time, two Business Days prior to the commencement of such Interest
Period.
"Euro Equivalent": at any time or during any period as to any amount
denominated in an Alternate Currency, the amount of Euros that may be purchased
with such amount of such Alternate Currency at the applicable rate of exchange
determined in accordance with Section 1.5.
"Euro Loans": as defined in Section 2.1.
"Euros": the single currency of participating member states of the European
Monetary Union introduced in accordance with the provisions of Article 109(1)4
of the Treaty of Rome of March 25, 1957 (as amended by the Single European Act
1986 and the Maastricht Treaty (which was signed at Maastricht on February 7,
1992 and came into force on November 1, 1993) as amended from time to time) and
as referred to in legislative measures of the European Union for the
introduction of, changeover to or operating of the euro in one or more member
states.
"Event of Default": any of the events specified in Section 7, provided that
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Exchange Rate": on any day, with respect to any currency, the rate at
which such currency may be exchanged into any other currency, as set forth at
approximately 11:00 A.M., London time, on such date on the Reuters World
Currency Page for such currency. In the event that such rate does not appear on
any Reuters World Currency Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates
as may be selected by the Administrative Agent, or, in the event no such service
is selected, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such currency are then being
conducted, at or about 10:00 A.M., local time, on such date for the purchase of
the relevant currency for delivery two Business Days later; provided that if at
the time of any such determination, for any reason, no such spot rate is being
quoted, the Administrative Agent, after consultation with Thermo Electron, may
use any reasonable method it deems appropriate to determine such rate, and such
determination shall be presumed correct absent manifest error; provided,
further, that in any event, the Administrative Agent shall provide Thermo
Electron with reasonable details of the source for such rate.
8
"Fee Payment Date": (a) the third Business Day following the last day of
each March, June, September and December, (b) the Termination Date and (c) the
date the Commitments shall have been terminated and the principal of the Loans
shall have been paid in full.
"Funding Office": the office of the Administrative Agent specified in
Section 10.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to Thermo Electron,
the Borrowers and the Lenders.
"GAAP": generally accepted accounting principles in the United States as in
effect from time to time, except that for purposes of Section 6.1, GAAP shall be
determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the most recent audited
financial statements referred to in Section 3.1.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization.
"Group Members": the collective reference to Thermo Electron and its
Subsidiaries (or, in the case of Sections 7(e), (f) and (h) only, the
Significant Subsidiaries of Thermo Electron).
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation, including a reimbursement, counterindemnity or similar obligation,
of the guaranteeing Person that guarantees or in effect guarantees, or which is
given to induce the creation of a separate obligation by another Person
(including any bank under any letter of credit) that guarantees or in effect
guarantees, any Indebtedness (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to
be the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made and (b)
the maximum amount for which such guaranteeing person may be liable pursuant to
the terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which
9
such guaranteeing person may be liable are not stated or determinable, in which
case the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by
Thermo Electron in good faith.
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (excluding
accounts payable and accrued expenses), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in
respect of bankers' acceptances, (g) all reimbursement obligations of such
Person in respect of drawings or payments made under letters of credit, surety
or performance bonds or other similar arrangements that are not satisfied within
three Business Days following the date of receipt by such Person of notice of
such drawing or payment, (h) the liquidation value of all mandatorily redeemable
preferred Capital Stock of such Person, (i) all Guarantee Obligations of such
Person in respect of obligations of the kind referred to in clauses (a) through
(f) and (h) above, (j) all obligations of the kind referred to in clauses (a)
through (i) above secured by any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (k) for the purposes of
Section 7(e) only, all obligations of such Person in respect of Swap Agreements.
It is understood that obligations in respect of a Permitted Receivables
Securitization shall not constitute Indebtedness. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to sue at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Loan having an Interest Period of
three months or less, the last day of such Interest Period, (b) as to any Loan
having an Interest Period longer than three months, each day that is three
months, or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period and (c) as to any Loan, the date of any
repayment or prepayment made in respect thereof.
10
"Interest Period": as to any Loan, (i) initially, the period commencing on
the borrowing or continuation date, as the case may be, with respect to such
Loan and ending one, two, three or six months thereafter (or any other date
thereafter agreed upon among the relevant Borrower and the Lenders), as selected
by the relevant Borrower in its notice of borrowing or notice of continuation,
as the case may be, given with respect thereto; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending one, two, three or six months thereafter (or any other date
thereafter agreed upon among the relevant Borrower and the Lenders), as selected
by the relevant Borrower by irrevocable notice to the Administrative Agent not
later than 10:00 A.M., London time, three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) no Borrower may select an Interest Period that would extend
beyond the Termination Date; and
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Investments": as defined in Section 6.7.
"Judgment Currency": as defined in Section 2.19(b).
"Lender": as defined in the preamble hereto; provided that unless context
otherwise requires each reference to the Lenders shall be deemed to include any
Conduit Lender.
"LIBOR Rate": with respect to an Interest Period pertaining to any Loan,
(a) in the case of any Euro Loans, the EURIBOR Rate with respect to such
Interest Period and (b) in the case of any Alternate Currency Loans, the rate of
interest determined on the basis of the rate for deposits in the relevant
Alternate Currency for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on page LIBOR01 of the Reuters
screen as of 11:00 A.M., London time, two Business Days prior to the beginning
of such Interest Period, provided that, in the event that such rate does not
appear on such page of the Reuters screen (or otherwise on the Reuters Service),
the "LIBOR Rate" shall instead be the interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the average of the rates at which
deposits in the relevant Alternate Currency approximately equal in principal
amount to the portion of the Tranche of the Lender serving as Administrative
Agent for a maturity comparable to such Interest Period, are offered by the
principal London office of ABN AMRO Bank N.V. for immediately available funds in
the London interbank market at
11
approximately 11:00 A.M., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan Documents": this Agreement, the Notes and any amendment, waiver,
supplement or other modification to any of the foregoing.
"Loan Parties": Thermo Electron, the Borrowers and each Additional
Borrower.
"Loan Percentage": as to any Lender at any time, the percentage which such
Lender's Commitment then constitutes of the Total Commitments or, at any time
after the Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Loans then outstanding constitutes
of the aggregate principal amount of the Loans then outstanding.
"Loans": as defined in Section 2.1.
"London Banking Day": any day on which banks in London are open for general
banking business, including dealings in foreign currency and exchange.
"Luxembourg": the Grand Duchy of Luxembourg.
"Luxembourg Companies Act": the Luxembourg act dated August 10, 1915 on
commercial companies, as amended.
"Mandatory Cost": in relation to any Loan, the cost as calculated by the
Administrative Agent in accordance with Schedule 1.1(b) imputed to each Lender
participating in such Loan of compliance with the mandatory liquid assets
requirements of the Financial Services Authority (or other applicable regulatory
authority) during the applicable Interest Period, expressed as a percentage.
"Margin": as determined pursuant to the Pricing Grid.
"Margin Stock": as defined in Regulation U.
"Material Adverse Effect": a material adverse effect on (a) the business,
property, operations or condition (financial or otherwise) of Thermo Electron
and its Subsidiaries taken as a whole or (b) the validity or enforceability of
this Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances,
12
materials or wastes, defined or regulated as such in or under any Environmental
Law, including asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in Section 2.15(a).
"Notes": the collective reference to any promissory note evidencing Loans.
"Obligations": the unpaid principal of and interest on (including interest
accruing after the maturity of the Loans and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of any Borrower to the
Administrative Agent or to any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any other Loan
Document or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrowers pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 10.6(c).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor).
"Permitted Receivables Securitization": any Receivables Securitization
Transaction, provided that the aggregate amount of the financing represented by
such transactions at any one time outstanding does not exceed $200,000,000.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is covered by
and subject to ERISA and in respect of which Thermo Electron or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
13
"Pricing Grid": the table set forth below (expressed in basis points):
--------------------------------- ------------------ ---------------------------
Rating (S&P/Moody's) Commitment Fee Margin
Rate
--------------------------------- ------------------ ---------------------------
Greater than or 7.5 25.0
equal to A+/A1 ............
--------------------------------- ------------------ ---------------------------
A/A2 ...................... 8.25 27.5
--------------------------------- ------------------ ---------------------------
A-/A3 ..................... 9.0 30.0
--------------------------------- ------------------ ---------------------------
BBB+/Baa1 ................. 10.5 35.0
--------------------------------- ------------------ ---------------------------
BBB/Baa2 .................. 12.0 40.0
--------------------------------- ------------------ ---------------------------
Less than or equal
to BBB-/Baa3 .............. 15.75 52.5
--------------------------------- ------------------ ---------------------------
In any case where the Ratings of the two Rating Agencies are at different
levels, the higher Rating will determine the Commitment Fee Rate and the Margin
unless the S&P and Moody's Ratings are more than one level apart, in which case
the Rating one level above the lower Rating will be determinative. Each change
in a Rating by a Rating Agency shall be effective on the date such change is
announced by such Rating Agency, and if such change in Rating shall result in a
change in the Commitment Fee Rate or Margin, such latter change shall be
effective on the effective date of such change in Rating.
"Professional Market Party": a professional market party (professionele
marktpartij) under the Dutch Exemption Regulation.
"Properties": as defined in Section 3.13(a).
"Rating Agencies" Moody's and S&P.
"Ratings" the ratings from time to time established by the Rating Agencies
for senior, unsecured, non-credit-enhanced long-term debt of Thermo Electron.
"Receivables": accounts receivable of Thermo Electron or any of its
Subsidiaries (including any thereof constituting or evidenced by chattel paper,
instruments or general intangibles), and all proceeds thereof and rights
(contractual and other) and collateral related thereto.
"Receivables Securitization Transaction": with respect to Thermo Electron
and/or any of its Subsidiaries, the transfer of Receivables by any such Person
to a trust, partnership, corporation or other entity in a transaction in which
(x) the transferred Receivables, after giving effect to such transaction, are
not, in accordance with GAAP, treated as assets on the books of Thermo Electron
and its consolidated Subsidiaries and (y) the liabilities of the transferee
trust, partnership, corporation or other entity, after giving effect to such
transaction, are not, in accordance with GAAP, treated as liabilities on the
books of Thermo Electron and its consolidated Subsidiaries.
14
"Refunding Borrowing": a borrowing of Loans which, after application of the
proceeds thereof, results in no net increase in the aggregate outstanding
principal amount of Loans made by any Lender.
"Register": as defined in Section 10.6(b).
"Regulation U": Regulation U of the Board as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
ss. 4043.
"Required Lenders": at any time, the holders of more than 50% of the Total
Commitments then in effect or, if the Commitments have been terminated, the then
outstanding Loans.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, president or chief
financial officer of Thermo Electron, but in any event, with respect to
financial matters, the chief financial officer of Thermo Electron.
"Restricted Margin Stock": Margin Stock owned by Thermo Electron or any of
its Subsidiaries which represents not more than 25% of the aggregate value
(determined in accordance with Regulation U), on a consolidated basis, of the
property and assets of Thermo Electron and its Subsidiaries (including any
Margin Stock) that is subject to the provisions of Section 6 (including Section
6.4).
"S&P": Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc.
"SEC": the Securities and Exchange Commission, any successor thereto and
any analogous Governmental Authority.
"SEC Filings": as defined in Section 3.1.
"Significant Subsidiary": any Borrower or any other Subsidiary which is a
"Significant Subsidiary," as defined in Regulation S-X part 210.1-02 of the Code
of Federal Regulations.
15
"Single Employer Plan": any Plan that is covered by Title IV of ERISA, but
that is not a Multiemployer Plan.
"Sterling": British Pounds Sterling, the lawful currency of the United
Kingdom.
"Sterling Loans": Loans denominated in Sterling.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of Thermo Electron.
"Substitute Rate": as defined in Section 2.12 .
"Swap Agreement": any agreement with respect to any swap, forward, future
or derivative transaction or option or similar agreement involving, or settled
by reference to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing indices or measures
of economic, financial or pricing risk or value or any similar transaction or
any combination of these transactions; provided that no phantom stock or similar
plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of Thermo Electron or any
of its Subsidiaries shall be a "Swap Agreement".
"Syndicated Credit Agreement": the existing $250,000,000 five year Credit
Agreement, dated as of December 17, 2004, among Thermo Electron, the several
lenders from time to time parties thereto, ABN AMRO Bank N.V., as syndication
agent, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as co-documentation
agents, and Barclays Bank PLC, as administrative agent.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": the date which is the fifth anniversary of the date
hereof.
"Thermo Electron": as defined in the preamble hereto.
"Thermo Finance B.V.": as defined in the preamble hereto.
"Thermo Luxembourg": as defined in the preamble hereto.
"Total Commitments": at any time, the aggregate amount of the Commitments
of the Lenders then in effect.
16
"Total Loans": at any time, the sum of (a) the aggregate amount of the Euro
Loans outstanding at such time and (b) the aggregate Euro Equivalent of the
Alternate Currency Loans outstanding at such time.
"Tranche": the collective reference to Loans denominated in the same
currency made by the Lenders to any Borrower, the then current Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Transferee": any Assignee or Participant.
"United States": the United States of America.
"Unrestricted Margin Stock": any Margin Stock owned by Thermo Electron or
any of its Subsidiaries which is
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
the other Loan Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, (i) accounting
terms relating to any Group Member not defined in Section 1.1 shall have the
respective meanings given to them under GAAP, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iv) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to
such agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
1.3 Dutch Terms. In this Agreement, where it relates to a Dutch entity, a
reference to:
(a) bankruptcy, insolvency, winding-up or dissolution includes a Dutch
entity being granted a suspension of payment (surseance van betaling), being
declared bankrupt (failliet verklaard) or dissolved (ontbonden);
17
(b) any case proceeding or other action taken in connection with insolvency
proceedings includes a Dutch entity having filed a notice under section 36 of
the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 16d
of the Social Insurance Co-ordination Act of the Netherlands (Coordinatiewet
Sociale Verzekeringen);
(c) a trustee includes a curator;
(d) a custodian includes a bewindvoerder; and
(e) an attachment includes a beslag.
1.4 Luxembourg Terms. In this Agreement, where it relates to a Luxembourg
entity, a reference to insolvency includes, without limitation, bankruptcy
(faillite), insolvency, its voluntary or judicial liquidation (liquidation
volontaire ou judiciaire), composition with creditors (concordat preventif de
faillite), reprieve from payment (sursis de paiement), controlled management
(gestion controlee), general settlement with creditors, reorganization or
similar laws affecting the rights of creditors generally.
1.5 Exchange Rates. For purposes of calculating (a) the aggregate Euro
Equivalent of Alternate Currency Loans outstanding at any time during any period
and (b) the Euro Equivalent of any Alternate Currency Loan at the time of the
making of such Loan pursuant to Section 2.1, the Administrative Agent will at
least once during each calendar month and at such other times as it in its sole
discretion decides to do so (including on or prior to the date of any borrowing
and the last day of any Interest Period), determine the respective rate of
exchange into Euros of each Alternate Currency (which rate of exchange shall be
based upon the Exchange Rate in effect on the date of such determination). Such
rates of exchange so determined on each such determination date shall, for
purposes of the calculations described in the preceding sentence, be deemed to
remain unchanged and in effect until the next such determination date.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans in Euros ("Euro Loans")
or in any Alternate Currency (including the Euro Loans, the "Loans") to the
Borrowers from time to time during the Commitment Period in an aggregate Euro or
Euro Equivalent principal amount for all Borrowers at any one time outstanding
which does not exceed the amount of such Lender's Commitment. No Borrower shall
request and no Lender shall be required to make any Loan if, after making such
Loan, the Total Loans would exceed the Total Commitments then in effect. During
the Commitment Period the Borrowers may use the Commitments by borrowing,
prepaying the Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof.
2.2 Procedure for Borrowing. Any Borrower may borrow Loans in Euros and
Alternate Currencies during the Commitment Period on any Business Day, provided
that the relevant Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 10:00
A.M., London time, three Business Days prior to the requested Borrowing Date),
specifying (i) the requested Borrowing Date, (ii) the respective
18
amounts of each Loan in each currency and (iii) the respective lengths of the
initial Interest Period therefor. Each Loan under the Commitments shall be in an
amount equal to (w) in the case of Euro Loans, (euro)5,000,000 or a whole
multiple of (euro)1,000,000 in excess thereof, (x) in the case of Sterling
Loans, (pound)5,000,000 or a whole multiple of (pound)500,000 in excess thereof,
(y) in the case of Dollar Loans, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and (z) in the case of Loans denominated in any other Alternate
Currency, in an amount of which the Euro Equivalent shall be approximately
(euro)5,000,000 or a whole multiple of (euro)1,000,000 in excess thereof. Upon
receipt of any such notice from any Borrower, the Administrative Agent shall
promptly notify each Lender thereof. Each Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the relevant Borrower at the Funding Office prior to 12:00 Noon,
London time, or 3:00 p.m., London time in the case of Dollar Loans, in each
case, on the Borrowing Date requested by such Borrower in funds immediately
available in Euros or the relevant Alternate Currency to the Administrative
Agent. Such borrowing will then be made available to the relevant Borrower by
the Administrative Agent crediting the account of such Borrower on the books of
such Office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent or by wire transfer of such amounts to an account
designated in writing by such Borrower to the Administrative Agent in connection
with the relevant borrowing.
2.3 Fees. (a) Thermo Luxembourg agrees to pay to the Administrative Agent
for the account of each Lender a commitment fee (a "Commitment Fee") in Euros,
which shall accrue at the Commitment Fee Rate on the average daily unused
portion of the Commitment of such Lender during the period from and including
the date hereof to but excluding the date on which such Commitment terminates.
Accrued Commitment Fees shall be payable quarterly in arrears on each Fee
Payment Date.
(b) Thermo Luxembourg agrees to pay to the Administrative Agent the fees in
the amounts and on the dates as set forth in the Fee Letter, dated as of June 2,
2005, between Thermo Luxembourg and the Administrative Agent, and in any other
fee agreements between Thermo Luxembourg and the Administrative executed after
the date of this Agreement, and to perform any other obligations contained
therein.
2.4 Optional Termination or Reduction of Commitments. Thermo Luxembourg
shall have the right upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments; provided that no such termination or
reduction of Commitments shall be permitted if, after giving effect thereto and
to any prepayments of the Loans, the Total Loans would exceed the Total
Commitments. Any such reduction shall be in an amount equal to (euro)10,000,000,
or an integral multiple of (euro)1,000,000 in excess thereof, and shall reduce
permanently the Commitments then in effect.
2.5 Optional Prepayments. Any Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent not later than 10:00
A.M., London time, three Business Days prior to the date of prepayment, which
notice shall specify the date and amount of prepayment and, if such prepayment
is of Alternate
19
Currency Loans, the applicable Alternate Currency; provided, that if a Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the relevant Borrower shall also pay any amounts owing pursuant to
Section 2.16. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with accrued interest to such date on the amount prepaid. Partial
prepayments shall be in the principal amount of (w) (euro)5,000,000 or a whole
multiple of (euro)1,000,000 in excess thereof, in the case of Euro Loans, (x)
(pound)5,000,000 or a whole multiple of (pound)500,000 in excess thereof, in the
case of Sterling Loans, (y) $5,000,000 or a whole multiple of $1,000,000 in
excess thereof, in the case of Dollar Loans, and (z) an amount of which the Euro
Equivalent shall be approximately (euro)5,000,000 or a whole multiple of
(euro)1,000,000 in excess thereof, in the case of other Alternate Currency
Loans.
2.6 Mandatory Prepayments. If, on any date, the Total Loans outstanding on
such date exceed 102% of the Total Commitments in effect on such date, the
Borrowers shall, without notice or demand, promptly (but in any event, within
three Business Days of such date) prepay such outstanding Loans in an aggregate
principal amount such that, after giving effect thereto, the Total Loans do not
exceed the Total Commitments. Any amounts prepaid pursuant to this Section shall
be accompanied by interest accrued to the date of such prepayment on the
principal so prepaid and any amounts payable under Section 2.16 in connection
therewith.
2.7 Continuation Options. Any Loan denominated in any currency may be
continued in such currency upon the expiration of the then current Interest
Period with respect thereto by the relevant Borrower giving irrevocable notice
to the Administrative Agent, in accordance with the applicable provisions of the
term "Interest Period" set forth in Section 1.1, of the length of the next
Interest Period to be applicable to such Loans, provided that if the relevant
Borrower shall fail to give any required notice of continuation of a Loan, such
Loan shall be automatically continued in such currency for an Interest Period of
one month. Upon receipt of any such notice the Administrative Agent shall
promptly notify the Lenders thereof.
2.8 Limitations on Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings and continuations of Loans and all selections of
Interest Periods shall be in such amounts and be made pursuant to such elections
so that no more than ten Tranches shall be outstanding at any one time.
2.9 Repayment of Loans. Each Borrower hereby unconditionally promises to
pay to each Lender on the Termination Date (or such earlier date as the Loans
become due and payable pursuant to Section 7), the unpaid principal amount of
each Loan made to such Borrower by such Lender. Each Borrower hereby further
agrees to pay interest in immediately available funds at the office of the
Administrative Agent on the unpaid principal amount of such Loans from time to
time from the date hereof until payment in full thereof at the rates per annum,
and on the dates, set forth in Section 2.10.
20
2.10 Interest Rates and Payment Dates. (a) Each Loan shall bear interest
for each day during each Interest Period with respect thereto at a rate per
annum equal to (i) the LIBOR Rate determined for such day plus (ii) the Margin
plus (iii) any Mandatory Cost incurred by such Lender in respect of such Loans
from time to time.
(b) (i) If all or a portion of the principal amount of any Loan shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section plus 2% and (ii) if all or a portion of any interest payable on
any Loan or any commitment fee or other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the highest
rate then applicable under this Agreement to Loans denominated in the currency
in which such amount is payable hereunder plus 2%, in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (before as well as after judgment).
(c) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section shall
be payable from time to time on demand.
2.11 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to Sterling Loans, interest shall
be calculated on the basis of a 365-day year for actual days elapsed. The
Administrative Agent shall as soon as practicable notify the relevant Borrower
and the Lenders of each determination of a LIBOR Rate. Any change in the
interest rate on a Loan resulting from a change in the Margin shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
relevant Borrower and the Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the relevant Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of any Borrower, deliver to such
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.10(a).
2.12 Inability to Determine Interest Rate. If prior to the first day of any
Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrowers) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the LIBOR Rate for Loans in Euros or one or more
Alternate Currencies for such Interest Period,
(b) the Administrative Agent shall have received notice from the Required
Lenders that the LIBOR Rate determined or to be determined for Loans in Euros or
one or more Alternate Currencies for such Interest Period will not adequately
and fairly reflect the cost to the
21
Required Lenders (as conclusively certified by such Lenders) of making or
maintaining such Loans during such Interest Period, or
(c) the Administrative Agent determines (which determination shall be
conclusive and binding upon the Borrowers) that deposits in the applicable
currency are not generally available, or cannot be obtained by the Lenders, in
the applicable market (any currency affected by the circumstances described in
clause (a), (b) or (c) is referred to as an "Affected Currency"),
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrowers and the Lenders as soon as practicable thereafter. If such
notice is given, then (i) any such Loans in an Affected Currency requested to be
made on the first day of such Interest Period shall not be made, (ii) any
outstanding Loans in an Affected Currency shall be due and payable on the last
day of the then-current Interest Period, and (iii) until such notice has been
withdrawn by the Administrative Agent, no further Loans in an Affected Currency
shall be made or continued as such. Notwithstanding the foregoing, as promptly
as practicable but in no event later than three Business Days after the giving
of the required notice by the Administrative Agent with respect to such
circumstances, the Administrative Agent (in consultation with the Lenders) shall
negotiate with the Borrowers in good faith in order to ascertain whether a
substitute interest rate (a "Substitute Rate") may be agreed upon for the
maintaining of Loans in the Affected Currency. If a Substitute Rate is agreed
upon by the Borrowers and all the Lenders, such Substitute Rate shall apply. If
a Substitute Rate is not so agreed upon by the Borrowers and all the Lenders
within such time, each Lender's Loans in the Affected Currency shall thereafter
bear interest at a rate equal to the sum of (i) the rate certified by such
Lender to be its costs of funds (from such sources as it may reasonably select
out of those sources then available to it) for such Loans, plus (ii) the Margin
plus (iii), any Mandatory Cost incurred by such Lender in respect of such Loans
from time to time.
2.13 Pro Rata Treatment and Payments. (a) Each borrowing by any Borrower
from the Lenders hereunder, each payment by any Borrower on account of any
commitment fee and any reduction of the Commitments of the Lenders shall be made
pro rata according to the respective Loan Percentages of the Lenders.
(b) Each payment (including each prepayment) by any Borrower on account of
principal of and interest on the Loans shall be made pro rata according to the
respective outstanding principal amounts of the Loans then held by the Lenders.
(c) All payments (including prepayments) to be made by any Borrower,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, London
time, on the due date thereof to the Administrative Agent, for the account of
the Lenders, at its Funding Office, in immediately available funds. Except as
otherwise specified in this Agreement, amounts owing hereunder on account of
principal and interest on Loans shall be paid in the currency in which such Loan
was borrowed, and amounts owing hereunder on account of fees shall be paid in
Euros. The Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment on a Loan
becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in
22
which event such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent may,
in reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate determined by the Administrative Agent to be the cost to it of funding such
amount until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days after such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at a rate
determined by the Administrative Agent to be the sum of (x) the cost to it of
funding such amount plus (y) the Margin, on demand, from the relevant Borrower.
The failure or refusal of any Lender to make available to the Administrative
Agent such Lender's share of such borrowing shall not relieve any other Lender
from its several obligation hereunder to make available to the Administrative
Agent the amount of such other Lender's share of such borrowing. Nothing herein
shall be deemed to limit the rights of any Borrower against any Lender that has
failed or refused to make available such Lender's share of any borrowing.
(e) Unless the Administrative Agent shall have been notified in writing by
any Borrower prior to the date of any payment due to be made by such Borrower
hereunder that such Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that such Borrower is making such
payment, and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their respective
pro rata shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the relevant Borrower within three Business Days after
such due date, the Administrative Agent shall be entitled to recover, on demand,
from each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at a rate per annum
determined by the Administrative Agent to be the cost to it of funding such
amount. Nothing herein shall be deemed to limit the rights of the Administrative
Agent or any Lender against the relevant Borrower with respect to such payment.
2.14 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof by any
Governmental Authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made, in
each case, subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Loan made by it, or change the basis of
taxation of
23
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by Section 2.15 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the LIBOR Rate; or
(iii) shall impose on such Lender any other condition relating to
funding of assets that would include the Loans or the income or earnings in
respect thereof (except for Non-Excluded Taxes covered by Section 2.15 and
changes in the rate of tax on the overall net income of such Lender);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender reasonably deems to be material, of making,
continuing or maintaining Loans, or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the relevant Borrower shall, promptly
after its receipt of a notice with respect thereto in accordance with Section
2.14(d), pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have reasonably determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof by a Governmental Authority charged with
the interpretation or administration thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made, in each case, subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, after such Lender
has provided written notice in accordance with Section 2.14(d) to the relevant
Borrower requesting compensation for such reduction under this paragraph, the
relevant Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender or such corporation for such reduction.
(c) If any Governmental Authority of the jurisdiction from which Euros or
any Alternate Currency is issued (or any other jurisdiction in which the funding
operations of any Lender shall be conducted with respect to such currency) shall
have in effect any reserve, liquid asset or similar requirement with respect to
any category of deposits or liabilities customarily used to fund loans in such
currency, or by reference to which interest rates applicable to loans in such
currency are determined (other than any such requirement included in the
computation of Mandatory Cost), and the result of such requirement shall be to
increase the cost to such Lender of making or maintaining any Loan in such
currency, and such Lender shall deliver to the relevant Borrower a written
notice in accordance with Section 2.14(d) requesting compensation for such
additional cost under this paragraph, then the relevant Borrower will pay to
such Lender
24
on each Interest Payment Date with respect to each affected Loan an amount that
will compensate such Lender for such additional cost.
(d) If any Lender becomes entitled to claim any additional amounts,
compensation or additional costs pursuant to this Section, it shall deliver a
written notice in accordance with this paragraph to the relevant Borrower (with
a copy to the Administrative Agent) requesting such additional amounts,
compensation or additional costs and notifying the relevant Borrower of the
event by reason of which it has become so entitled. Such Lender agrees to use
reasonable efforts to deliver such notice promptly following the time at which
it becomes aware of the event giving rise to such additional amounts,
compensation or additional cost payable (provided that, except as provided below
in this paragraph, the failure by such Lender to give such notice promptly shall
not adversely affect any of its rights hereunder). A certificate as to any
additional amounts, compensation or additional costs payable to any Lender
pursuant to this Section 2.14 submitted by any Lender to any Borrower (with a
copy to the Administrative Agent) shall be conclusive in the absence of manifest
error. Notwithstanding anything to the contrary contained in paragraphs (a), (b)
and (c) above, no Borrower shall be required to compensate a Lender pursuant to
such paragraphs for any amounts incurred more than three months prior to the
date that such Lender notifies such Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such three-month period shall
be extended to include the period of such retroactive effect. The obligations of
each Borrower pursuant to this Section 2.14 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(e) Notwithstanding any other provision of this Agreement, if (x) the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof by a Governmental Authority charged with the interpretation
or administration thereof or compliance by any Lender with any request or
directive (whether or not, in each case, having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof
shall make it unlawful for any Lender to make or maintain any Alternate Currency
Loan or to give effect to its obligations as contemplated hereby with respect to
any Alternate Currency Loan, or (y) there shall have occurred any change in
national or international financial, political or economic conditions (including
the imposition of or any change in exchange controls, but excluding conditions
otherwise covered by this Section 2.14) which would make it impracticable for
any Lender to make or maintain Loans denominated in the relevant Alternate
Currency after the date hereof to, or for the account of, any Borrower, then, by
written notice to each Borrower and to the Administrative Agent:
(i) such Lender may declare that Loans (in the affected Alternate
Currency or Currencies) will not thereafter (for the duration of such
unlawfulness or change in conditions) be made by such Lender or Lenders
hereunder (or be continued for additional Interest Periods), whereupon any
request for a Loan (in the affected Alternate Currency or Currencies) or to
continue a Loan (in the affected Alternate Currency or Currencies), as the
case may be, for an additional Interest Period shall, as to such Lender
only, be of no force and effect, unless such declaration shall be
subsequently withdrawn; and
25
(ii) such Lender may require that all outstanding Loans (in the
affected Alternate Currency or Currencies), made by it be converted to Euro
Loans (unless repaid by the relevant Borrower), in which event all such
Loans (in the affected Alternate Currency or Currencies) shall be converted
to Euro Loans as of the effective date of such notice as provided in
paragraph (f) below and at the Exchange Rate on the date of such conversion
or, at the option of the relevant Borrower, repaid on the last day of the
then current Interest Period with respect thereto.
In the event any Lender shall exercise its rights under (i) or (ii) above,
all payments and prepayments of principal made thereafter that would otherwise
have been applied to repay the converted Alternate Currency Loans of such Lender
shall instead be applied to repay the Euro Loans made by such Lender resulting
from such conversion.
(f) For purposes of Section 2.14(e), a notice to any Borrower by any Lender
shall be effective as to each Alternate Currency Loan made to such Borrower by
such Lender, if lawful, on the last day of the Interest Period currently
applicable to such Alternate Currency Loan; in all other cases such notice shall
be effective on the date of receipt thereof by the relevant Borrower.
2.15 Taxes. (a) All payments made by any Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
net income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that no Borrower shall be required to increase any
such amounts payable to any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to such Lender's failure to comply with the requirements
of paragraph (d) of this Section or (ii) that are taxes imposed on amounts
payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
relevant Borrower with respect to such Non-Excluded Taxes pursuant to this
paragraph.
(b) In addition, the Borrowers shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
26
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by any
Borrower, as promptly as possible thereafter the relevant Borrower shall send to
the Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by such Borrower showing payment thereof. If the relevant Borrower
fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, such Borrower shall indemnify
the Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Lender
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall, at the reasonable request of the Borrowers,
deliver to the Borrowers (with a copy to the Administrative Agent), at such time
or times prescribed by applicable law and such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
(e) The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.16 Indemnity. Each Borrower agrees to indemnify each Lender for, and to
hold each Lender harmless from, any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by such Borrower in making a borrowing
of or continuation of Loans after such Borrower has given a notice requesting
the same in accordance with the provisions of this Agreement, (b) default by
such Borrower in making any prepayment of Loans after such Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest that would have accrued on the
amount so prepaid, or not so borrowed or continued, for the period from the date
of such prepayment or of such failure to borrow or continue to the last day of
such Interest Period (or, in the case of a failure to borrow or continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) that would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank LIBOR market. A certificate as to any
amounts payable pursuant to this Section submitted to the relevant Borrower by
any Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.17 Change of Lending Office. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.14 or 2.15(a) with
respect to such Lender, it will, if requested by the relevant Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
27
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal, regulatory
or other disadvantage, and provided, further, that nothing in this Section shall
affect or postpone any of the obligations of any Borrower or the rights of any
Lender pursuant to Section 2.14 or 2.15(a).
2.18 Replacement of Lenders. The Borrowers shall be permitted to replace
any Lender that (a) requests reimbursement for amounts owing pursuant to Section
2.14 or 2.15(a) or (b) defaults in its obligation to make Loans hereunder, with
a replacement financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.17 so
as to eliminate the continued need for payment of any amounts owing pursuant to
Section 2.14 or 2.15(a), (iv) the replacement financial institution shall
purchase, at par (unless the Lender being replaced otherwise agrees to accept a
lesser payment in its discretion), all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the relevant
Borrower shall be liable to such replaced Lender under Section 2.16 if any Loan
owing by such Borrower to such replaced Lender shall be purchased other than on
the last day of the Interest Period relating thereto, (vi) the replacement
financial institution, if not already a Lender, shall (A) be reasonably
satisfactory to the Administrative Agent and (B) deliver to the Administrative
Agent an administrative questionnaire, (vii) (A) in the event of a replacement
of a Lender pursuant to clause (a) above, the Borrowers shall deliver to the
Administrative Agent a processing and recordation fee of $3,500 in accordance
with Section 10.6 or (B) in the event of a replacement of a Lender pursuant to
clause (b) above, the replaced Lender shall deliver to the Administrative Agent
a processing and recordation fee of $3,500 in accordance with Section 10.6,
(viii) until such time as such replacement shall be consummated, each Borrower
shall pay all additional amounts (if any) required to be paid by such Borrower
pursuant to Section 2.14 or 2.15(a), as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights that any Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender. In the event of a replacement of a Lender pursuant to this Section 2.18,
such replaced Lender and the replacement financial institution shall promptly
execute and deliver to the Administrative Agent and the Borrowers an Assignment
and Assumption, and shall comply with the provisions of Section 10.6(b)(iii),
(iv) and (v) (other than the requirements included in such clause (v) with
respect to the delivery of consents and the processing and recordation fee,
which are covered above in this Section).
2.19 Judgment Currency. (a) If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which, in
accordance with normal banking procedures in the relevant jurisdiction, the
first currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any party
hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
28
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the relevant Borrower as a
separate obligation and notwithstanding any such judgment, agrees to indemnify
the Applicable Creditor against such loss. The obligations of each Borrower
contained in this Section shall survive the termination of this Agreement and
the payment of all other amounts owing hereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, Thermo Electron hereby represents and warrants
to the Administrative Agent and each Lender, as of the date of this Agreement
(except as to the representations and warranties made as of a date certain,
which shall be true and correct as of such date) and as of the date such
representations and warranties are deemed to be made under Section 4.2(a), that:
3.1 Financial Condition. The audited consolidated balance sheets of Thermo
Electron and its consolidated Subsidiaries as at December 28, 2002, December 31,
2003 and December 31, 2004 and the related consolidated statements of income and
of cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from Pricewaterhouse Coopers LLP, present
fairly the consolidated financial condition of Thermo Electron and its
consolidated Subsidiaries as at such dates, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended. The unaudited consolidated balance sheet of Thermo Electron and its
consolidated Subsidiaries as at April 2, 2005, and the related unaudited
consolidated statements of income and cash flows for the three-month period
ended on such date, present fairly the consolidated financial condition of
Thermo Electron and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
three-month period then ended (subject to normal year-end audit adjustments).
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP (subject to the absence of
footnotes with respect to unaudited quarterly statements) applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). As of the date of this Agreement, no
Group Member has any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long-term leases or unusual forward or long-term
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, other than those that
(i) are not material to Thermo Electron and its Subsidiaries taken as a whole or
(ii) are reflected in the most recent financial statements referred to in this
paragraph or in Thermo Electron's most recent report on Form 10-K or any
subsequent reports on Form 10-Q or Form 8-K filed with the SEC prior to the date
of this Agreement (such filings made prior to the date of this Agreement, the
"SEC Filings"). During the period from December 31, 2004 to and including the
date of this Agreement there has been no Disposition by any Group Member of any
part of its business or property material to Thermo Electron and its
Subsidiaries taken as a whole except as set forth in the most recent financial
statements referred to in this paragraph or in Thermo Electron's SEC Filings.
29
3.2 No Change. Since December 31, 2004, there has been no development or
event that has had or would reasonably be expected to have a Material Adverse
Effect, except that no representation and warranty is made in this Section 3.2
with respect to the Current Litigation.
3.3 Existence; Compliance with Law. Each Group Member (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the legal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and (d) is in compliance with all
Requirements of Law except to the extent that the failure to conform to the
requirements of clauses (a) through (d) could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. Thermo Electron and each
Borrower has the power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and, in the case of each
Borrower, to borrow hereunder. Thermo Electron and each Borrower have taken all
necessary organizational action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of
each Borrower, to authorize the extensions of credit on the terms and conditions
of this Agreement. No consent or authorization of, filing with (other than any
SEC filing by Thermo Electron in compliance with the SEC disclosure
obligations), notice to or other act by or in respect of, any Governmental
Authority or any other Person is required of any Group Member in connection with
the borrowings by any Borrower hereunder or with the execution, delivery and
performance by Thermo Electron or any Borrower, or the validity or
enforceability against Thermo Electron or any Borrower, of this Agreement or any
of the Loan Documents. This Agreement has been duly executed and delivered on
behalf of Thermo Electron and each Borrower. This Agreement constitutes, and
each other Loan Document upon execution will constitute, a legal, valid and
binding obligation of Thermo Electron and each Borrower, as applicable,
enforceable against Thermo Electron or such Borrower in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, the execution, delivery and
performance of this Agreement and the other Loan Documents, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or any Contractual Obligation of any Group Member and will not result in,
or require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation.
3.6 Litigation. It is not probable that the Current Litigation will have a
Material Adverse Effect, and no other litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of Thermo Electron,
30
threatened by or against any Group Member or against any of their respective
properties or revenues that would reasonably be expected to have a Material
Adverse Effect.
3.7 Ownership of Property; Liens. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, each Group Member has
title in fee simple to, or a valid leasehold interest in, all its real property,
and good title to, or a valid leasehold interest in, all its other property, and
none of such property is subject to any Lien except as permitted by Section 6.4.
3.8 Taxes. Except as, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, each Group Member has filed or caused to be
filed all material tax returns that are required to be filed by each of them in
each applicable jurisdiction and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the relevant Group Member).
3.9 Federal Regulations. No part of the proceeds of any Loans will be used
for any purpose that violates the provisions of Regulation U or any of the other
Regulations of the Board. If requested by any Lender or the Administrative
Agent, each Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
3.10 ERISA. Except as, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect, neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single Employer Plan has
occurred that could reasonably be expected to have a Material Adverse Effect,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by an amount that is material in relation to Consolidated
Net Worth. Except as in the aggregate could not reasonably be expected to have a
Material Adverse Effect, neither Thermo Electron nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan, and
neither Thermo Electron nor any Commonly Controlled Entity would become subject
to any liability under ERISA that, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect if Thermo Electron or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent under circumstances that could reasonably be
expected to result in a Material Adverse Effect.
31
3.11 Investment Company Act; Other Regulations. Neither Thermo Electron nor
any Borrower is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. Neither Thermo Electron nor any Borrower is subject to regulation
under any Requirement of Law (other than Regulation X of the Board) that limits
its ability to incur Indebtedness.
3.12 Use of Proceeds. The proceeds of the Loans shall be used by the
Borrowers and their respective Subsidiaries for working capital, acquisitions,
repurchases of Capital Stock, debentures and other securities of the Borrowers,
the refinancing of present and future debt and general corporate purposes.
3.13 Environmental Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by any Group
Member (the "Properties") do not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation of, or could give rise
to liability under, any Environmental Law;
(b) no Group Member has received or is aware of any notice of violation,
alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the business operated by any Group Member (the "Business"),
nor does Thermo Electron have knowledge or reason to believe that any such
notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
that could give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of Thermo Electron, threatened, under any
Environmental Law to which any Group Member is or will be named as a party with
respect to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of any Group Member in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in compliance,
and have in the last five years been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties
or the Business; and
32
(g) no Group Member has assumed any liability of any other Person under
Environmental Laws.
3.14 Accuracy of Information, etc. No statement or information contained in
this Agreement, the Confidential Information Package or any other document,
certificate or statement furnished by or on behalf of Thermo Electron or any
Borrower to the Administrative Agent or the Lenders, or any of them, for use in
connection with the transactions contemplated by this Agreement or the other
Loan Documents, contained as of the date such statement, information, document
or certificate was so furnished (or, in the case of the Confidential Information
Package, as of the date of this Agreement) when taken together with the SEC
Filings, any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of Thermo Electron and the Borrowers to be reasonable at
the time made, it being recognized by the Lenders that such financial
information as it relates to future events is not to be viewed as fact and that
actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.
3.15 Dutch Banking Act(a) . (a) Thermo Finance B.V. is in compliance in all
material respects with the applicable provisions of the Dutch Banking Act; (b)
on the date of this Agreement Thermo Finance B.V. has verified the status of
each Lender as a Professional Market Party; and (c) on the date of any
assignment by a Lender to an Assignee pursuant to Section 10.6 Thermo Finance
B.V. will have verified the status of such Assignee as a Professional Market
Party.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each Lender to make the
initial Loans requested to be made by it is subject to the satisfaction, prior
to or concurrently with the making of such Loans, of the following conditions
precedent:
(a) Credit Agreement. The Administrative Agent shall have received this
Agreement, executed and delivered by the Administrative Agent, the Syndication
Agent, the Co-Documentation Agents, Thermo Electron, the Borrowers and each
Person listed on Schedule 1.1(a).
(b) Fees. The Lenders and the Administrative Agent shall have received all
fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on or
before the Closing Date. All such amounts will be paid by wire transfer on the
Closing Date.
(c) Closing Certificate; Certified Certificate of Incorporation. The
Administrative Agent shall have received a certificate of Thermo Electron and of
each Borrower, dated the Closing Date, substantially in the form of Exhibit B,
with appropriate insertions and attachments, including the certificate of
incorporation of Thermo Electron and of each Borrower.
33
(d) Legal Opinions. The Administrative Agent shall have received (a) the
legal opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to Thermo
Electron and its Subsidiaries, substantially in the form of Exhibit D-1, (b) the
legal opinion of Seth Hoogasian, General Counsel of Thermo Electron,
substantially in the form of Exhibit D-2; (c) the legal opinion of Allen &
Overy, local counsel to the Lenders in The Netherlands, substantially in the
form of Exhibit D-3 and (d) the legal opinion of Allen & Overy, local counsel to
the Lenders in Luxembourg, substantially in the form of Exhibit D-4. Such legal
opinions shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably
require.
(e) Approvals. All material governmental and regulatory licenses, notices,
registrations and consents necessary in connection with the transactions
contemplated by this Agreement shall have been made and obtained on reasonably
satisfactory terms and shall be in full force and effect.
4.2 Conditions to Each Loan. The agreement of each Lender to make any Loan
(other than a Refunding Borrowing) requested to be made by it on any date
(including its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by Thermo Electron or any Borrower in or pursuant to the Loan
Documents (other than the representations and warranties set forth in Sections
3.2 and 3.15(b) and (c)) shall be true and correct in all material respects on
and as of such date as if made on and as of such date (other than
representations and warranties made as of a specified earlier date, which shall
be true and correct as of such earlier date).
(b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the Loans requested to be made
on such date .
Each borrowing by any Borrower hereunder shall constitute a representation and
warranty by such Borrower as of the date of such borrowing that the conditions
contained in this Section 4.2 have been satisfied.
4.3 Conditions for Additional Borrowers. Any Subsidiary of Thermo Electron
organized under the laws of a European nation set forth in a written
notification thereof delivered by Thermo Electron to the Administrative Agent
(which shall promptly notify each Lender thereof) shall become an Additional
Borrower on the later of (x) the date which is five Business Days after the
receipt by the Lenders of such notification and (y) the date that the following
conditions precedent shall have been satisfied:
(a) Counterparts. The Administrative Agent shall have received a
Supplemental Borrower Agreement duly executed by such Additional Borrower
substantially in the form of Exhibit E.
(b) Closing Certificate; Certificate of Incorporation. The Administrative
Agent shall have received a certificate of such Additional Borrower
substantially in the form of Exhibit B, with appropriate insertions and
attachments, including the certificate of incorporation of such Additional
Borrower.
34
(c) Legal Opinions. The Administrative Agent shall have received an
executed legal opinion, in form and substance reasonably acceptable to the
Administrative Agent, of counsel to such Additional Borrower reasonably
acceptable to the Administrative Agent.
SECTION 5. AFFIRMATIVE COVENANTS
Thermo Electron hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, Thermo Electron shall and (except in the case of Sections 5.1,
5.2 and 5.7) shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to the Administrative Agent (which shall
promptly make a copy thereof available to each Lender, including by posting on a
secure website):
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of Thermo Electron, a copy of the audited consolidated balance
sheet of Thermo Electron and its consolidated Subsidiaries as at the end of such
year and the related audited consolidated statements of income and of cash flows
for such year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like qualification
or exception, or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days after the
end of each of the first three quarterly periods of each fiscal year of Thermo
Electron, the unaudited consolidated balance sheet of Thermo Electron and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
(subject to the absence of footnotes with respect to unaudited quarterly
statements) applied (except as approved by such accountants or officer, as the
case may be, and disclosed in reasonable detail therein) consistently throughout
the periods reflected therein and with prior periods. Notwithstanding anything
to the contrary contained in this Section 5.1, Thermo Electron shall not be
required to deliver any financial statements to the Administrative Agent with
respect to any period for which it has timely filed its Form 10-K or Form 10-Q,
as the case may be, with the SEC (provided that such Form 10-K or Form 10-Q, as
the case may be, is publicly available on the SEC's website (or a similar
website) within the time periods required by this Section).
5.2 Certificates; Other Information. Furnish to the Administrative Agent
(which shall promptly make a copy thereof available to each Lender, including by
posting on a secure website):
35
(a) within the time period in which Thermo Electron is required to deliver
any financial statements pursuant to Section 5.1, (i) a certificate of a
Responsible Officer stating that, to the best of such Responsible Officer's
knowledge, Thermo Electron, during the period covered by such financial
statements, has observed or performed all of its covenants and other agreements,
and satisfied every condition contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or satisfied by it,
and that such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and (ii) a Compliance
Certificate containing all information and calculations necessary for
determining compliance by Thermo Electron with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal year of
Thermo Electron, as the case may be;
(b) unless publicly available at such time on the SEC's website (or a
similar website), within five days after the same are sent, copies of all
financial statements and reports that Thermo Electron sends to the holders of
any class of its debt securities or public equity securities and, within five
days after the same are filed, copies of all financial statements and reports
that Thermo Electron may make to, or file with, the SEC; and
(c) promptly, such additional financial and other information as any Lender
may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature that, if not paid, could reasonably be expected
to result in a Material Adverse Effect, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the relevant Group Member.
5.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep
in full force and effect Thermo Electron's and each Borrower's organizational
existence and (ii) take all reasonable action to maintain all rights, privileges
and franchises of each such Group Member necessary or desirable in the normal
conduct of its business, except, in each case, as otherwise permitted by Section
6.5 and except, in the case of clause (ii) above, to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect; and
(b) except to the extent that, in the aggregate, non-compliance could not
reasonably be expected to have a Material Adverse Effect, comply with all
Contractual Obligations and Requirements of Law.
5.5 Maintenance of Property; Insurance. Except to the extent that, in the
aggregate, non-compliance could not reasonably be expected to have a Material
Adverse Effect, (a) keep all property useful and necessary in its business in
good working order and condition, ordinary wear and tear excepted and (b)
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business.
36
5.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions material to Thermo Electron and its Subsidiaries, taken as a
whole, in relation to its business and activities and (b) permit representatives
of any Lender to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired and to discuss the business, operations, properties
and financial and other condition of the Group Members with officers and
employees of the Group Members and with their independent certified public
accountants.
5.7 Notices. Promptly after Thermo Electron becomes aware thereof, give notice
to the Administrative Agent (which shall promptly make a copy thereof available
to each Lender, including by posting on a secure website) of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
any Group Member or (ii) litigation, investigation or proceeding that may exist
at any time between any Group Member and any Governmental Authority, that in
either case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member (i) in which
the amount involved is $50,000,000 or more and not covered by insurance or (ii)
which relates to any Loan Document;
(d) the following events, as soon as possible and in any event within 30
days after Thermo Electron knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan which could
reasonably be expected to have a Material Adverse Effect, a failure to make any
required contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan, (ii) the institution of proceedings or
the taking of any other action by the PBGC with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan, or (iii) the
institution of proceedings or the taking of any other action by Thermo Electron
or any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of, any Plan
which, in the case of this clause (iii), could reasonably be expected to have a
Material Adverse Effect; and
(e) any development or event that has had or could reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the relevant Group Member proposes to take with respect
thereto.
5.8 Environmental Laws. Comply in all material respects with all applicable
Environmental Laws, and obtain and comply in all material respects with and
maintain any and all licenses, approvals, notifications, registrations or
permits required by applicable
37
Environmental Laws, except to the extent that the failure to comply, or obtain
and comply, therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
5.9 "Know Your Customer" Checks(a) . (a) If (i) the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
by a Governmental Authority charged with the interpretation or administration
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof, (ii) any change in the status of
any Loan Party or the composition of the shareholders of any Loan Party after
the date of this Agreement, or (iii) a proposed amendment or transfer by a
Lender of any of its rights and/or obligations under this Agreement to a party
that is not a Lender prior to such assignment or transfer obliges the
Administrative Agent or any Lender (or, in the case of paragraph (iii) above,
any prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is
not already available to it, each Loan Party shall promptly upon the request of
the Administrative Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) or any Lender (for
itself or, in the case of the event described in paragraph (iii) above, on
behalf of any prospective new Lender) in order for the Administrative Agent,
such Lender or, in the case of the event described in paragraph (iii) above, any
prospective new Lender to carry out and be reasonably satisfied with the results
of all necessary "know your customer" or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in the
Loan Documents.
(b) Each Lender shall promptly upon the request of the Administrative Agent
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Administrative Agent (for itself) in order for the
Administrative Agent to carry out and be satisfied with the results of all
necessary "know your customer" or other similar checks under all applicable laws
and regulations pursuant to the transactions contemplated in the Loan Documents.
(c) Following the giving of any notice pursuant to Section 4.3 above, if
the accession of such Additional Borrower obliges the Administrative Agent or
any Lender to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already
available to it, Thermo Electron shall promptly upon the request of the
Administrative Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) or any Lender (for
itself or on behalf of any prospective new Lender) in order for the
Administrative Agent or such Lender or any prospective new Lender to carry out
and be reasonably satisfied with the results of all necessary "know your
customer" or other similar checks under all applicable laws and regulations
pursuant to the accession of such Subsidiary to this Agreement as an Additional
Borrower.
SECTION 6. NEGATIVE COVENANTS
Thermo Electron hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, Thermo Electron shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
38
6.1 Financial Condition Covenants.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio for any period of four consecutive fiscal quarters of Thermo
Electron to be less than 3.25:1.00.
(b) Consolidated Total Debt to Consolidated Total Capitalization Ratio.
Permit the Consolidated Total Debt to Consolidated Total Capitalization Ratio at
the end of any fiscal quarter of Thermo Electron to be greater than 0.50:1.00.
6.2 Standby and Performance Letters of Credit. Permit at any one time
outstanding the sum of (a) the aggregate then undrawn face amount of surety and
performance bonds, bank guarantees and standby and performance letters of credit
as to which Thermo Electron and/or any Subsidiary of Thermo Electron is or are
the account party and which do not secure or otherwise assure the payment of
Indebtedness and (b) the aggregate then unreimbursed amount of all amounts paid
in respect of drawings under such surety and performance bonds, bank guarantees
and letters of credit to exceed 10% of Consolidated Total Assets as of the end
of the immediately prior fiscal quarter of Thermo Electron for which financial
statements shall have been delivered to the Lenders.
6.3 Indebtedness of Subsidiaries. In the case of any Subsidiary, create,
issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness of such Subsidiary, except:
(a) Indebtedness of such Subsidiary to Thermo Electron or any other
Subsidiary and Guarantee Obligations of any Subsidiary with respect to
Indebtedness of Thermo Electron or any other Subsidiary;
(b) (i) Indebtedness outstanding on the date hereof and described on
Schedule 6.3(b), and additional Indebtedness incurred after the date hereof
under the revolving credit arrangements described on Schedule 6.3(b) in an
aggregate principal amount at any one time outstanding not to exceed the
commitments or limits existing with respect thereto on the date hereof and
described on such Schedule, and (ii) Indebtedness under any replacements,
refinancings, refundings, renewals or extensions of the Indebtedness described
in clause (i) (without increasing the principal amount above the commitments or
limits, or shortening the maturity thereof to a date earlier than the maturity,
respectively, thereof described on Schedule 6.3(b));
(c) Indebtedness created hereunder and under the other Loan Documents;
(d) Indebtedness (including, without limitation, Capital Lease Obligations)
secured by Liens permitted by Section 6.4(g) in an aggregate principal amount at
any one time outstanding not to exceed the greater of (i) $50,000,000 and (ii)
2.5% of Consolidated Total Assets of Thermo Electron as of the end of the
immediately prior fiscal quarter of Thermo Electron for which financial
statements shall have been delivered to the Lenders; and
(e) additional Indebtedness in an aggregate principal amount at any one
time outstanding for all Subsidiaries (on a consolidated basis) not to exceed
the greater of (i)
39
$150,000,000 and (ii) 10% of Consolidated Total Assets of Thermo Electron as of
the end of the immediately prior fiscal quarter of Thermo Electron for which
financial statements shall have been delivered to the Lenders;
provided, however, that no Subsidiary shall create, incur, assume, become liable
in respect of or suffer to exist any Guarantee Obligation with respect to
Indebtedness under the Bridge Credit Agreement or the Syndicated Credit
Agreement unless it shall also have guaranteed the Obligations on terms not less
favorable to the Lenders.
6.4 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its property (other than any Lien on Margin Stock created, incurred or assumed
at a time when such Margin Stock constitutes Unrestricted Margin Stock), whether
now owned or hereafter acquired, except:
(a) Liens for taxes not yet due or that are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of Thermo Electron or its Subsidiaries, as the case
may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business that are not overdue
for a period of more than 30 days or that are being contested in good faith by
appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not
substantial in amount and that do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of Thermo Electron or any of its Subsidiaries;
(f) Liens in existence on the date hereof and described on Schedule 6.4(f)
securing Indebtedness described on such Schedule, or Liens on the assets that
are subject to such existing Liens securing any replacement or refinancing of
such Indebtedness; provided that (i) no Lien permitted by this Section 6.4(f) is
spread to cover any additional property after the Closing Date and (ii) the
amount of Indebtedness secured thereby is not increased beyond the commitments
or limits described on Schedule 6.4(f);
(g) Liens securing Indebtedness incurred (in the case of any Subsidiary,
pursuant to Section 6.3(d) or (e)) to finance the acquisition of fixed or
capital assets or Liens on such fixed or capital assets securing any refinancing
of such Indebtedness, provided that (i) such Liens (other than those securing
any such refinancing Indebtedness) shall be created substantially simultaneously
with the acquisition of such fixed or capital assets, (ii) such Liens do not at
any
40
time encumber any property other than the property financed by such Indebtedness
and (iii) (in the case of any Subsidiary) the amount of Indebtedness secured
thereby is not increased;
(h) any interest or title of a lessor under any lease entered into by
Thermo Electron or any of its Subsidiaries in the ordinary course of its
business and covering only the assets so leased;
(i) other incidental Liens that (i) are not, in the aggregate, material to
Thermo Electron and its Subsidiaries taken as a whole, (ii) do not secure
Indebtedness and (iii) do not cover at any time assets having an aggregate fair
market value in excess of $10,000,000;
(j) Liens incurred pursuant to a Permitted Receivables Securitization on
the Receivables that are subject thereto;
(k) Liens on assets of a Subsidiary securing Acquired Indebtedness
permitted by Section 6.3(e) in an aggregate principal amount for all such
Subsidiaries not to exceed $100,000,000 at any one time outstanding; provided
that such Liens are not spread (i) in any case where such Liens attach to
certain specified assets, to other assets or (ii) in any case where such Liens
attach to certain types of assets, to other types of assets of such Subsidiary
following the consummation of the applicable acquisition; and
(l) Liens securing Indebtedness in an aggregate principal amount not to
exceed $25,000,000 at any one time outstanding;
provided, however, that no Subsidiary shall create, incur, assume or suffer to
exist any Lien upon any of its property to secure the payment of any
Indebtedness under the Bridge Credit Agreement or the Syndicated Credit
Agreement unless it shall also have granted such Lien to secure the payment of
the Obligations on terms not less favorable to the Lenders.
6.5 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of Thermo Electron may be merged or consolidated with or
into Thermo Electron (provided that Thermo Electron shall be the continuing or
surviving corporation) or any other Subsidiary;
(b) any Subsidiary of Thermo Electron may Dispose of any or all of its
assets (i) to Thermo Electron or any other Subsidiary (upon voluntary
liquidation or otherwise) or (ii) pursuant to a Disposition permitted by Section
6.6;
(c) any Investment expressly permitted by Section 6.7 may be structured as
a merger, consolidation or amalgamation; and
(d) any Subsidiary of Thermo Electron may be liquidated, wound up or
dissolved, as deemed appropriate by Thermo Electron.
41
6.6 Disposition of Property. Dispose of any of the property (other than any
property which, at the time of any Disposition thereof, constitutes Unrestricted
Margin Stock), whether now owned or hereafter acquired, or Capital Stock of any
Subsidiary, except:
(a) the Disposition of obsolete or worn out property in the ordinary course
of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by clause (i) of Section 6.5(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to Thermo
Electron, any Borrower or any other Subsidiary;
(e) Dispositions by any Group Member to Thermo Electron or any of its
Subsidiaries;
(f) the Disposition during any period of four consecutive fiscal quarters
of Thermo Electron, commencing with the four-quarter period ending on or about
December 31, 2005, of other property having an aggregate book value not to
exceed $200,000,000 (determined in each case at the time of Disposition),
provided that Thermo Electron shall deliver to the Administrative Agent written
notice ten Business Days in advance of any Disposition in excess of $50,000,000;
(g) Dispositions of Receivables pursuant to a Permitted Receivables
Securitization;
(h) Dispositions of Investments permitted by Section 6.7(b);
(i) Dispositions listed on Schedule 6.6; and
(j) any other Disposition of property or Capital Stock of any Subsidiary,
provided that (i) immediately before and after giving effect to such Disposition
no Default or Event of Default shall have occurred and be continuing and (ii)
such Disposition is made pursuant to an arm's-length transaction the
consideration received for which is at least equal to the fair market value of
the property or Capital Stock that is the subject of such Disposition.
6.7 Investments. Make any advance, loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, any other
Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) obligations in respect of letters of credit, surety and performance
bonds and bank guarantees permitted by Section 6.2, and Guarantee Obligations
permitted by Section 6.3;
42
(d) loans and advances to employees of any Group Member in the ordinary
course of business (including for travel, entertainment and relocation expenses)
in an aggregate amount for all Group Members not to exceed $5,000,000 at any one
time outstanding;
(e) intercompany Investments by any Group Member in Thermo Electron or any
Subsidiary;
(f) acquisitions of businesses or the acquisition (through merger or
otherwise) of or Investments in Persons if (i) in the case of the acquisition of
the Capital Stock of any Person (whether by merger or otherwise), such Person
has become a Subsidiary of Thermo Electron as a result of thereof and (ii) after
giving pro forma effect to such acquisition or Investment, there is no Default
or Event of Default (it being understood and agreed that in determining pro
forma compliance with Section 6.1, such covenants shall be recomputed as of the
most recent fiscal-quarter-end date for which financial statements shall have
been delivered pursuant to Section 5.1, adjusted (x) in the case of Section
6.1(a), to recompute Consolidated EBITDA to give effect to such acquisition or
Investment as if it had occurred on the first day of the applicable four-quarter
period and to recompute Consolidated Interest Expense for such period to include
the additional interest that would have accrued during such period in respect of
Indebtedness acquired or assumed in connection with such acquisition or
Investment if such acquisition or Investment had occurred on the first day of
such period and in respect of any Indebtedness incurred to finance such
acquisition or Investment if such Indebtedness had been incurred on such day
(and had borne interest throughout such period at the rate per annum applicable
thereto on the date it was incurred) and (y) in the case of Section 6.1(b), to
recompute Consolidated Total Debt to include therein all Indebtedness acquired,
assumed or incurred by Thermo Electron and its Subsidiaries in connection with
and to finance such acquisition or Investment and to recompute Consolidated Net
Worth to give effect to such acquisition or Investment);
(g) Investments consisting of promissory notes and Capital Stock received
as proceeds of Dispositions permitted by Section 6.6; and
(h) in addition to Investments otherwise expressly permitted by this
Section, Investments by Thermo Electron and its Subsidiaries in an aggregate
amount (valued at cost) not to exceed $200,000,000 during any period of four
consecutive fiscal quarters of Thermo Electron.
6.8 Transactions with Affiliates. Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service or
the payment of any management, advisory or similar fees, with any Affiliate
(other than Thermo Electron or any other Group Member) unless such transaction
(a) is (i) otherwise permitted under this Agreement and (ii) upon fair and
reasonable terms no less favorable to the relevant Group Member than it would
obtain in a comparable arm's length transaction with a Person that is not an
Affiliate or (b) involves, when taken together with all other transactions
covered by this clause (b) entered into during any fiscal year, $1,000,000 or
less.
43
6.9 Changes in Fiscal Periods. Change Thermo Electron's or any Borrower's
method of determining fiscal years and quarters without prior written notice to
the Administrative Agent.
6.10 Lines of Business. Enter into any business, either directly or through
any Subsidiary, except for those businesses in which Thermo Electron and its
Subsidiaries are engaged on the date of this Agreement or that are reasonably
related thereto.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) any Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; or any Borrower shall fail to pay any interest
on any Loan, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes due
in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by Thermo Electron
or any Borrower herein or in any other Loan Document (other than the
representations and warranties set forth in Sections 3.15(b) and (c)) or that is
contained in any certificate, document or financial or other statement furnished
by it at any time under or in connection with this Agreement or any such other
Loan Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) Thermo Electron shall default in the observance or performance of any
agreement contained in clause (i) or (ii) of Section 5.4(a) (with respect to
Thermo Electron only), Section 5.7(a) or Section 6 or 9 of this Agreement; or
(d) Thermo Electron shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after written notice
to Thermo Electron from the Administrative Agent or the Required Lenders; or
(e) any Group Member shall (i) default in making any payment of any
principal of any Indebtedness (including any Guarantee Obligation, but excluding
the Loans) on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder
or beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of any
such Indebtedness constituting a Guarantee Obligation) to become payable (other
than any such default, event or condition arising solely out of the violation by
Thermo Electron or any of its Subsidiaries of any covenant in any way
restricting Thermo Electron's, or any such Subsidiary's, right or ability to
sell, pledge or
44
otherwise dispose of Unrestricted Margin Stock); provided, that a default, event
or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall
not at any time constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i), (ii) and
(iii) of this paragraph (e) shall have occurred and be continuing with respect
to Indebtedness the outstanding principal amount of which exceeds in the
aggregate $35,000,000; or
(f) (i) any Group Member shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or any Group Member shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Group Member any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
any Group Member shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Group Member shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of any Group Member or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any
Group Member or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any Group
Member involving in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $10,000,000 or more, and all such
45
judgments or decrees shall not have been vacated, discharged, satisfied, stayed
or bonded pending appeal within 30 days from the entry thereof; or
(i) (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) shall become, or obtain rights (whether by means or warrants, options or
otherwise) to become, the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act), directly or indirectly, of more than 40% of the
outstanding common stock of Thermo Electron; or (ii) the board of directors of
Thermo Electron shall cease to consist of a majority of Continuing Directors; or
(j) the guarantee contained in Section 9 of this Agreement shall cease, for
any reason, to be in full force and effect or Thermo Electron shall so assert;
or
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to Thermo Electron or
any Borrower, automatically the Commitments shall immediately terminate and the
Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to Thermo Electron declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to Thermo Electron, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by Thermo Electron and the Borrowers.
SECTION 8. THE AGENTS
8.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
46
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither any Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable to any Lender for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with this Agreement or any other Loan
Document (except to the extent that any of the foregoing are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of any Loan Party a party thereto to perform its obligations hereunder or
thereunder. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
8.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any instrument,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to Thermo Electron and the Borrowers), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
the Administrative Agent has received notice from a Lender, Thermo Electron or a
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent
47
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
8.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
8.7 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to their
respective Loan Percentages in effect on the date on which indemnification is
sought under this Section (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Loan Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (whether before or after the payment
of the Loans) be imposed on, incurred by or asserted against such Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such
48
Agent's gross negligence or willful misconduct. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder.
8.8 Agent in Its Individual Capacity. Each Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with any Loan Party as though such Agent were not an Agent. With respect to
Loans made or renewed by it, each Agent shall have the same rights and powers
under this Agreement and the other Loan Documents as any Lender and may exercise
the same as though it were not an Agent, and the terms "Lender" and "Lenders"
shall include each Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Lenders and Thermo Electron. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 7(a) or Section 7(f) with
respect to Thermo Electron or any Borrower shall have occurred and be
continuing) be subject to approval by Thermo Electron (which approval shall not
be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
8.10 Syndication Agent and Co-Documentation Agents. Neither the Syndication
Agent nor any Co-Documentation Agent shall have any duties or responsibilities
hereunder in its capacity as such.
SECTION 9. THERMO ELECTRON GUARANTEE
9.1 Guarantee. (a) To induce the Lenders to execute and deliver this
Agreement and to make the Loans, and in consideration thereof, Thermo Electron
hereby unconditionally and irrevocably guarantees to the Administrative Agent,
for the ratable benefit of the Lenders and their respective successors,
indorsees and assigns, the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations, and Thermo Electron further agrees to pay the expenses which may be
paid or incurred by the Administrative Agent or the Lenders in collecting any or
all of the Obligations and/or enforcing any rights under this Section 9.1.
49
(b) Anything herein to the contrary notwithstanding, the maximum liability
of Thermo Electron hereunder shall in no event exceed the amount which can be
guaranteed by Thermo Electron under applicable federal and state laws relating
to the insolvency of debtors.
(c) The guarantee contained in this Section 9 shall remain in full force
and effect and be binding in accordance with and to the extent of its terms upon
Thermo Electron and the successors and assigns thereof, and shall inure to the
benefit of the Lenders and their successors and permitted assigns, until all the
Obligations and the obligations of Thermo Electron under the guarantee contained
in this Section 9 shall have been satisfied by payment in full and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of this Agreement the Borrowers may be free from any Obligations.
9.2 No Subrogation. Notwithstanding any payment made by Thermo Electron
hereunder or any set-off or application of funds of Thermo Electron by the
Administrative Agent or any Lender, Thermo Electron shall not be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against any Borrower or any collateral security or guarantee or right of offset
held by the Administrative Agent or any Lender for the payment of the
Obligations, nor shall Thermo Electron seek or be entitled to seek any
contribution or reimbursement from any Borrower in respect of payments made by
Thermo Electron hereunder, until all amounts owing to the Administrative Agent
and the Lenders by any Borrower on account of the Obligations are paid in full
and the Commitments are terminated. If any amount shall be paid to Thermo
Electron on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by
Thermo Electron in trust for the Administrative Agent and the Lenders and shall,
forthwith upon receipt by Thermo Electron, be turned over to the Administrative
Agent in the exact form received by Thermo Electron (duly indorsed by Thermo
Electron to the Administrative Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
9.3 Amendments, etc. with respect to the Obligations. Thermo Electron shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against Thermo Electron and without notice to or further assent by Thermo
Electron, any demand for payment of any of the Obligations made by the
Administrative Agent or any Lender may be rescinded by the Administrative Agent
or such Lender and any of the Obligations continued, and the Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and this Agreement and the Notes and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent (or
the Required Lenders or all Lenders, as the case may be) may deem advisable from
time to time, and any collateral security, guarantee or right of offset at any
time held by the Administrative Agent or any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for the guarantee contained in this Section 9 or any property
subject thereto.
50
9.4 Guarantee Absolute and Unconditional. Thermo Electron waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon the guarantee contained in this Section 9 or acceptance of the
guarantee contained in this Section 9; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Section 9; and all dealings between the Borrowers and Thermo Electron, on the
one hand, and the Administrative Agent and the Lenders, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 9. To the fullest extent
permitted by applicable law, Thermo Electron waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon any
Borrower or Thermo Electron with respect to the Obligations. Thermo Electron
understands and agrees that the guarantee contained in this Section 9 shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of this Agreement or any
Note, any of the Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by any Borrower or any other Person against
the Administrative Agent or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrowers or Thermo Electron)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrowers for the Obligations, or of Thermo Electron under the
guarantee contained in this Section 9, in bankruptcy or in any other instance.
When making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against Thermo Electron the Administrative Agent or any Lender may,
but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against any Borrower, or any
other Person or against any collateral security or guarantee for the Obligations
or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to make any such demand, to pursue such other
rights or remedies or to collect any payments from the Borrowers, or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of any Borrower, or any other
Person or any such collateral security, guarantee or right of offset, shall not
relieve Thermo Electron of any obligation or liability hereunder, and shall not
impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of the Administrative Agent or any Lender against Thermo
Electron. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
9.5 Reinstatement. The guarantee contained in this Section 9 shall continue
to be effective, or be reinstated, as the case may be, if at any time payment,
or any part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or Thermo Electron, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
Borrower or Thermo Electron or any substantial part of its property, or
otherwise, all as though such payments had not been made.
51
9.6 Payments. Thermo Electron hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in the
applicable currency at the Funding Office.
9.7 Independent Obligations. The obligations of Thermo Electron under the
guarantee contained in this Section 9 are independent of the obligations of the
Borrowers, and a separate action or actions may be brought and prosecuted
against Thermo Electron whether or not any Borrower is joined in any such action
or actions. Thermo Electron waives, to the fullest extent permitted by law, the
benefit of any statute of limitations affecting its liability hereunder or the
enforcement thereof.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders, the Borrowers and Thermo Electron may, or, with the written
consent of the Required Lenders, the Administrative Agent, the Borrowers and
Thermo Electron may, from time to time, (a) enter into written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders, Thermo Electron or the
Borrowers hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan, reduce the stated rate of any interest
or fee payable hereunder (except in connection with the waiver of applicability
of any post-default increase in interest rates (which waiver shall be effective
with the consent of the Required Lenders)) or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the written consent of each Lender
directly affected thereby; (ii) eliminate or reduce the voting rights of any
Lender under this Section 10.1 without the written consent of such Lender; (iii)
reduce any percentage specified in the definition of Required Lenders or consent
to the assignment or transfer by Thermo Electron or any Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, in
each case without the written consent of all Lenders; (iv) change Section 2.13
in a manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender; (v) amend, modify or waive any
provision of Section 8 without the written consent of the Administrative Agent;
or (vi) add additional currencies as Alternate Currencies in which Alternate
Currency Loans may be made under this Agreement without the written consent of
all the Lenders. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon Thermo Electron, the Borrowers, the Lenders, the Administrative Agent and
all future holders of the Loans. In the case of any waiver, Thermo Electron, the
Borrowers, the Lenders and the Administrative Agent shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be
52
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy) and
shall not be effective until received, provided that any notice given by the
Administrative Agent pursuant to the final paragraph of Section 7 shall be
deemed to have been duly given or made when delivered, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, provided further, that any document produced by Thermo
Luxembourg or any Additional Borrower that is a Luxembourg private limited
liability company shall also comply with the requirements of the Luxembourg
Companies Act. All such notices, requests and demands shall be addressed as
follows, in the case of Thermo Electron, the Borrowers and the Administrative
Agent, and as set forth in an administrative questionnaire delivered to the
Administrative Agent in the case of the Lenders, or to such other address as may
be hereafter notified by the respective parties hereto by not less than five
Business Days' notice:
Thermo Electron: Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Attention: Treasurer
Telecopy: 781-622-1181
Telephone: 781-622-1000
With a copy to:
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Attention: General Counsel
Telecopy: 781-622-1283
Telephone: 781-622-1000
Borrowers:
Thermo Luxembourg: c/o Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Attention: Treasurer
Telecopy: 781-622-1181
Telephone: 781-622-1000
With a copy to:
c/o Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Attention: General Counsel
53
Telecopy: 781-622-1283
Telephone: 781-622-1000
Thermo Finance B.V.: c/o Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Attention: Treasurer
Telecopy: 781-622-1181
Telephone: 781-622-1000
With a copy to:
c/o Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Attention: General Counsel
Telecopy: 781-622-1283
Telephone: 781-622-1000
Administrative Agent: ABN AMRO Bank N.V.
250 Bishopsgate
London
EC2M 4AA
Attention: Nick Little, Assistant
Director
Telecopy: 44 (0) 20 7678 6021
Telephone: 44 (0) 20 7678 5228
Notices and other communications to the Lenders hereunder may be delivered
or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Section 2 unless otherwise agreed by the Administrative Agent and
the applicable Lender. The Administrative Agent, Thermo Electron or any Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications and, provided, further, that no such agreement referred to in
this sentence shall be effective unless it is set forth in a written document
executed by the Administrative Agent and Thermo Electron.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
54
10.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
10.5 Payment of Expenses. The Borrowers jointly and severally agree (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent, with statements with
respect to the foregoing to be submitted to the Borrowers prior to the Closing
Date (in the case of amounts to be paid on the Closing Date) and from time to
time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) after the occurrence and during
the continuance of an Event of Default, to pay or reimburse each Lender and the
Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents, including
the fees and disbursements of counsel to each Lender and of counsel to the
Administrative Agent and (c) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an "Indemnitee") harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including reasonable fees and expenses of counsel)
with respect to such Lender or Administrative Agent being a party to this
Agreement or any other Loan Document, or the enforcement or performance of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of any Group Member or any of the Properties (all the foregoing
in this clause (c), collectively, the "Indemnified Liabilities"), provided, that
no Borrower shall have any obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such Indemnitee
or the breach by such Indemnitee of its obligations under this Agreement.
Without limiting the foregoing, and to the extent permitted by applicable law,
each Borrower agrees not to assert and to cause its Subsidiaries not to assert,
and hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section 10.5 shall be payable not later than 10 days after written
demand therefor. Statements payable by the Borrowers pursuant to this Section
10.5 shall be submitted to Office of the General Counsel (Telephone No. (781)
622-1000) (Telecopy No. (781) 622-1283), at the address of the Borrowers set
forth in Section 10.2, or to such other Person or address as may be hereafter
designated by the Borrowers in a written notice to the Administrative Agent. The
agreements in this Section 10.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
55
10.6 Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except that (i) neither Thermo Electron nor any Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by Thermo
Electron or any Borrower without such consent shall be null and void) and (ii)
no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees (each, an "Assignee") all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld (it being agreed
that it will not be unreasonable for Thermo Electron to withhold its consent on
the basis that it is unable to determine whether or not the proposed Assignee is
a Professional Market Party if it shall not have been provided with information
regarding the proposed Assignee that is adequate to form the basis for such
determination)) of:
(A) Thermo Electron, provided that no consent of Thermo Electron
shall be required for an assignment to an existing Lender, or, if an
Event of Default has occurred and is continuing, any other Person; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to an existing Lender, an
affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Commitments or
Loans, the amount of the Commitments or Loans of the assigning Lender
subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than (euro)5,000,000
unless each of Thermo Electron and the Administrative Agent otherwise
consent, provided that (1) no such consent of Thermo Electron shall be
required if an Event of Default has occurred -------- and is
continuing and (2) such amounts shall be aggregated in respect of each
Lender and its affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to
Thermo Electron, the Borrowers and the Administrative Agent an
Assignment and Assumption, and at such time deliver to the
Administrative Agent a processing and recordation fee of $3,500;
56
(C) the Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an administrative questionnaire; and
(D) to the extent applicable, the provisions of Section 10.6(g).
For the purposes of this Section 10.6, the term "Approved Fund" has the
following meaning:
"Approved Fund" means any Person (other than a natural
person) that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in
each Assignment and Assumption the Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16
and 10.5). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 10.6 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph
(c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and Thermo Electron, the Borrowers, the
Administrative Agent, and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
57
(c) (i) Any Lender may, without the consent of Thermo Electron, the
Borrowers or the Administrative Agent, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) Thermo Electron, the Borrowers, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender directly
affected thereby pursuant to the proviso to the second sentence of Section 10.1
and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this
Section, Thermo Electron and each Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.7(b) as though it were a
Lender, provided such Participant shall be subject to Section 10.7(a) as though
it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.15 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with Thermo Electron's prior written consent. No Participant shall be
entitled to the benefits of Section 2.15 unless such Participant provides
such forms, certificates or other evidence, if any, with respect to
withholding tax matters as required under Section 2.15(d).
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) Each Borrower, upon receipt of written notice from the relevant Lender,
agrees to issue Notes to any Lender requiring Notes to facilitate transactions
of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Lender may assign its rights and
obligations to a Conduit Lender organized and administered by such Lender,
provided that such assignment shall be subject to all the requirements of the
definition of the term "Conduit Lender" in Section 1.1. Notwithstanding the
foregoing, any Conduit Lender may assign any or all of the Loans it may have
funded hereunder to its designating Lender without the consent of Thermo
Electron or the Administrative Agent and without regard to the limitations set
forth in Section 10.6(b). Each of the Administrative Agent, Thermo Electron,
each Borrower and each Lender hereby confirms that it will not institute against
a Conduit Lender or join any other Person in
58
instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any loss, cost, damage or expense
arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.
(g) If, on the date of any proposed assignment, it is a requirement of
Dutch law that each Lender to a Dutch Borrower must be a Professional Market
Party:
(i) any Lender which proposes to assign all or a portion of its rights
and obligations under this Agreement to an Assignee shall give Thermo
Finance B.V. and Thermo Electron at least four Business Days' prior written
notice thereof, and such assignment shall, subject to satisfaction of all
the applicable requirements of this Section 10.6, become effective (A) if
Thermo Electron shall have consented thereto pursuant to Section
10.6(b)(i)(A) or (B) if, pursuant to the proviso to Section 10.6(b)(i)(A),
the consent of Thermo Electron to the proposed assignment is not required,
as of the close of business in London on the fourth Business Day after
receipt by Thermo Finance B.V. and Thermo Electron of such notice unless,
on or prior to such time on such fourth Business Day, Thermo Finance B.V.
shall have demonstrated to the reasonable satisfaction of the
Administrative Agent that either (x) the proposed Assignee is not a
Professional Market Party or (y) Thermo Finance B.V., acting in good faith,
has been unable to determine (including on the basis of information
delivered to Thermo Finance B.V. and Thermo Electron together with such
notice) whether the proposed Assignee is a Professional Market Party (it
being understood that, if Thermo Finance B.V. shall have so demonstrated to
the Administrative Agent on or prior to such time on such fourth Business
Day, such assignment shall not become effective);
(ii) no assignment will be effective unless both the Assignee and
Thermo Finance B.V. have complied with the requirements of this Section
10.6(g);
(iii) on the date the assignment becomes effective the Assignee must
make the representation on the terms set out in clause 3(b) of the
Assignment and Assumption;
(iv) on the date that an Assignee becomes party to this Agreement as a
Lender, Thermo Finance B.V. must represent pursuant to Section 3.15(c) that
on that date it has verified the status of such Assignee as a Professional
Market Party.
10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement
expressly provides for payments to be allocated to a particular Lender, if any
Lender (a "Benefited Lender") shall receive any payment of all or part of the
Obligations owing to it (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 7(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefited Lender shall purchase for cash from the other
Lenders a participating
59
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such collateral, as
shall be necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right after the occurrence and during the
continuation of an Event of Default, without prior notice to Thermo Electron or
any Borrower, any such notice being expressly waived by Thermo Electron and each
Borrower to the extent permitted by applicable law, upon any amount becoming due
and payable by Thermo Electron or any Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of Thermo
Electron or the relevant Borrower, as the case may be. Each Lender agrees
promptly to notify Thermo Electron or the relevant Borrower and the
Administrative Agent after any such setoff and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such setoff and application.
(c) By joining in this Agreement, the Administrative Agent and each Lender
hereby waive (doet afstand van), with respect to any Dutch bank account
maintained by Thermo Electron or any Borrower, any right of pledge over any
balance standing to credit of such Dutch bank account which the Administrative
Agent or any Lender may have or at any time in the future may acquire under its
general banking conditions or otherwise, under the general terms and conditions
(algemene voorwaarden) of any member of the Dutch Bankers' Association
(Nederlandse Vereniging van Banken) or any similar term applied by a financial
institution in the Netherlands pursuant to its general terms and conditions;
provided, however, that nothing in this paragraph (c) shall be deemed to limit
in any way the rights of any Lender under paragraph (b) above.
10.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with Thermo Electron and the Administrative Agent.
10.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
60
10.10 Integration. This Agreement and the other Loan Documents represent
the entire agreement of Thermo Electron, the Borrowers, the Administrative Agent
and the Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by Thermo Electron,
any Borrower, the Administrative Agent or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each of Thermo Electron and each
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to Thermo Electron at its
address set forth in Section 10.2 or, as the case may be, to the relevant
Borrower in care of Thermo Electron at Thermo Electron's address set forth in
Section 10.2 or at such other address of which the Administrative Agent shall
have been notified pursuant thereto; provided that, in the case of Thermo
Luxembourg, a copy thereof shall also be mailed to its registered office at 13,
boulevard du Prince Henri, L-1724 Luxembourg;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
10.13 Acknowledgements. Thermo Electron and each Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
61
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to Thermo Electron or any Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and Thermo
Electron or such Borrower, on the other hand, in connection herewith or
therewith is solely that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrowers and the Lenders.
10.14 Confidentiality. Each of the Administrative Agent and each Lender
agrees on its own behalf and on behalf of each Affiliate thereof to keep
confidential all non-public information provided to it by any Group Member, the
Administrative Agent or any Lender pursuant to or in connection with this
Agreement that is designated by the provider thereof as confidential; provided
that nothing herein shall prevent the Administrative Agent or any Lender from
disclosing any such information (a) subject to an express agreement to maintain
the confidentiality of such information in compliance with the provisions of
this Section (which may be a standing agreement between such parties), to the
Administrative Agent, any other Lender or any affiliate thereof solely for the
purposes of, or otherwise in connection with, this Agreement, (b) subject to an
express agreement to maintain the confidentiality of such information in
compliance with the provisions of this Section (which may be a standing
agreement between such Lender and such Transferee), to any actual or prospective
Transferee or any direct or indirect counterparty to any Swap Agreement (or any
professional advisor to such counterparty), (c) to its employees, directors,
agents, attorneys, accountants and other professional advisors or those of any
of its affiliates, in each case who have a need to know such information in
accordance with customary business practices (it being understood that the
Person to whom such disclosure is made will be informed of the confidential
nature of such information and instructed to keep such information
confidential), (d) upon the request or demand of any Governmental Authority, (e)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if required to do
so in connection with any litigation or similar proceeding, (g) that has been
publicly disclosed, other than as a result of a disclosure by the Administrative
Agent or a Lender, or any of their respective employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of their
respective affiliates, in violation of this Section 10.14 (provided that neither
the Administrative Agent nor any Lender shall be deemed to have violated this
Section if it, or any of its employees, directors, agents, attorneys,
accountants or other professional advisors or any of their respective affiliates
(each Lender (or, as the case may be, the Administrative Agent), together with
each such other Person employed by it, a "Subject Group"), shall publicly
disclose any confidential information which has previously been publicly
disclosed, without the knowledge of the Person making such subsequent
disclosure, by a Person which is a member of another Subject Group), (h) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender, or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document. Unless specifically prohibited by
applicable law or court order, the Administrative Agent and each Lender shall,
prior to any disclosure under clause (d), (e) or (f) above to (x) any
Governmental Authority that does not have supervisory, regulatory or other
62
similar authority with respect to the Administrative Agent or such Lender, as
the case may be, and that is seeking such disclosure solely in connection with
an investigation, litigation or other proceeding that does not otherwise involve
the Administrative Agent or such Lender, as the case may be, or (y) any other
Person that is not a Governmental Authority, notify Thermo Electron of any
request for the disclosure of any such non-public information so as to provide
Thermo Electron with the reasonable opportunity to obtain a protective order or
other comparable relief.
10.15 WAIVERS OF JURY TRIAL. THERMO ELECTRON, EACH BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.16 USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act") hereby notifies Thermo Electron and the Borrowers that
pursuant to the requirements of the Act, it is required to obtain, verify and
record information that identifies Thermo Electron and each Borrower, which
information includes the name and address of Thermo Electron and such Borrower
and other information that will allow such Lender to identify Thermo Electron
and such Borrower in accordance with the Act.
10.17 Professional Market Party. Each Lender which is a party hereto on the
date hereof represents and warrants that it is a Professional Market Party.
[Rest of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
THERMO ELECTRON CORPORATION
By: /s/ Kenneth J. Apicerno
--------------------------------------------
Name: Kenneth J. Apicerno
Title: Treasurer
THERMO LUXEMBOURG HOLDING S.A.R.L.
By: /s/ Kenneth J. Apicerno
--------------------------------------------
Name: Kenneth J. Apicerno
Title: Manager
THERMO FINANCE COMPANY B.V.
By: /s/ Kenneth J. Apicerno
--------------------------------------------
Name: Kenneth J. Apicerno
Title: Managing Director
ABN AMRO BANK N.V., as Administrative
Agent and as a Lender
By: /s/ Peter Klein
--------------------------------------------
Name: Peter Klein
Title: Managing Director
JPMORGAN CHASE BANK, N.A., as Co-
Documentation Agent and as a Lender
By: /s/ Dawn Lee Lum
--------------------------------------------
Name: Dawn Lee Lum
Title: Vice President
BARCLAYS BANK PLC, as Co-Documentation
Agent and as a Lender
By: /s/ David Barton
--------------------------------------------
Name: David Barton
Title: Associate Director
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as Syndication Agent and as a
Lender
By: /s/ Christian Giordano
--------------------------------------------
Name: Christian Giordano
Title: Vice President
BANCA INTESA SPA NEW YORK BRANCH
By: /s/ John I. Michalisin
--------------------------------------------
Name: John I. Michalisin
Title: First Vice President
By: /s/ Nicoholas A. Matacchieri
--------------------------------------------
Name: Nicoholas A. Matacchieri
Title: Director
BANK AUSTRIA CREDITANSTALT AG
By: /s/ John I. Michalisin
--------------------------------------------
Name: Hilke Schubert
Title: Senior Manager
By: /s/ Christoph Dietrich
--------------------------------------------
Name: Christoph Dietrich
Title: Senior Manager
BNP PARIBAS
By: /s/ Stephanie A. Mack
--------------------------------------------
Name: Stephanie A. Mack
Title: Vice President
By: /s/ Robert Mimaki
--------------------------------------------
Name: Robert Mimaki
Title: Vice President
KEY BANK NATIONAL ASSOCIATION
By: /s/ Jeff Kalinowski
--------------------------------------------
Name: Jeff Kalinowski
Title: Senior Vice President
<