Exhibit 10.8
The Directors
Thermo Electron
Corporation
81 Wyman Street
Waltham M.A. 02254
U.S.A.
July 1995
Dear Sirs
We are pleased to advise you that Barclays Bank PLC (the "Bank")
has agreed to provide in aggregate short term facilities of up to
US$100,000,000 (one hundred million United States ("US") Dollars)
or its currency equivalent (referred to as the "Facility") to
Thermo Electron Corporation (the "Parent") and certain
Subsidiaries as may be nominated from time to time in accordance
with clause 3 (such companies being individually referred to as a
"Borrower", collectively the "Borrowers") as detailed below.
This Facility Letter cancels and replaces the existing
US$55,000,000 facility provided by the Bank
to the Parent and its Subsidiaries.
The Schedules attached hereto form part of the terms and
conditions of this letter.
The Facility will be available for utilisation by the Borrowers,
subject to the following terms and
conditions:-
1. Options Available Within and Utilisation of the Facility
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The Facility may be utilised by way of the following options
and in accordance with the provisions of the Schedules
related thereto.-
Sterling Money Market Loan (see Schedule A) and/or
Sterling Overdraft (see Schedule B) and/or
Currency Money Market Loan (the "Currency MML") (see Schedule
C) and/or
Foreign Currency Overdraft (see Schedule D) and/or
Revolving Acceptance Credit (the "Credit") (see Schedule E)
and/or
Bonds Guarantees and Indemnities (see Schedule F) and/or
Letters of Credit (see Schedule G) and/or
Ancillary Facilities (see Schedule H).
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Within the Facility the aggregate of the liabilities due,
owing or incurred thereunder shall not
at any time exceed US$100,000,000 (or its currency
equivalent).
The US dollar equivalent of the currency or currencies
utilised or available to be utilised under the Facility may
be calculated by the Bank at any time by reference to the
Bank's spot rate of exchange in the London Foreign Exchange
Market for the sale of the relevant currency or currencies
for US dollars.
Allocations under the Facility that are made available to
Borrowers or the Parent by branches or affiliates of the Bank
in countries outside of the United Kingdom will be governed
by the terms of the Facility as detailed herein, except where
specifically superceded by local arrangements.
2. Availability
------------
2.1 This offer is available to the Parent for acceptance until
one Month from the date of this letter after which date the
offer will lapse unless extended in writing by the Bank.
Acceptance is to be signified as stated in clause 18 below.
2.2 All monies owing under the Facility are repayable upon
written demand by the Bank and any undrawn portion may be
cancelled by the Bank at any time. Following demand and/or
cancellation, no further utilisation may be made under the
Facility. If demand for repayment is made the Bank shall
have in addition the right to call for full cash cover for
the amount of contingent liabilities outstanding to the Bank
hereunder.
The Parent shall indemnify the Bank on demand against any
loss or expense which the Bank
may reasonably sustain or incur as a direct consequence of
making such demand.
In the absence of demand or cancellation by the Bank, the
Facility is available for utilisation until 12 April 1996 and
no liability or liabilities incurred may extend more than
three months beyond the above mentioned expiry date.
However, the Bank will be pleased to discuss the Borrower's
requirements shortly before that date.
3. Subsidiaries as Borrowers
-------------------------
3.1 The Parent may designate any of its Subsidiaries as a
Borrower under this Facility Letter by giving not less than
10 days notice thereof to the Bank. No such designation
shall take effect until such Subsidiary and the Parent have
executed a deed of accession in the form set out in Schedule
PAGE
1, and the Bank has received and found to he reasonably
satisfactory to it such other documents, (including
constitutional documents, board minutes, necessary licences
or consents, and legal opinions) and information as the Bank
may reasonably require. In addition, no Subsidiary which has
acceded as a Borrower pursuant to this clause may utilise the
Facility, or any option within the Facility until the Parent
has made a request pursuant to clause 3.2 below and the Bank
has agreed to such request.
3.2 Following a request from the Parent in the form contained in
Schedule 2, the Bank may from time to time by notice in
writing to the Parent allocate to any Subsidiary of the
Parent (which has acceded as a Borrower pursuant to Clause
3.1 above) a tranche of the Facility and/or one or more of
the options (detailed in clause 1) contained within the
Facility. If the Bank does so, that tranche will not then be
available to the Parent or other Borrowers, and the Facility
available to them will reduce accordingly.
3.3 Each Borrower, by its execution of the deed of accession,
irrevocably appoints the Parent as its agent for all purposes
of or connected with this Agreement. The Bank may rely upon
any document signed by or on behalf of the Parent as if it
had been signed by each and every other Borrower. The Parent
may give a good receipt for any sum payable to each and every
other Borrower hereunder.
4. Interest/Fees/Charges
---------------------
The interest and/or fees, and/or charges payable on each
option within the Facility will be calculated and be payable
in accordance with the relevant schedule to this Agreement.
5 . Interest on an Overdue Amount
-----------------------------
5.1If any moneys payable under this Facility are not paid when
due by the Borrowers or the
Parent:
(i) interest will be charged on the overdue amounts, on a
daily basis, from the due date to the date of actual
payment;
(ii) the amount of such interest shall be calculated by
reference to successive interest periods, (the duration
of such interest periods shall be selected by the Bank at
its discretion).
5.2Interest shall be charged at the rate per annum determined by
the Bank to be equal to 1% above the rate which would
otherwise have been applicable to such overdue amount under
the provisions of the relevant Schedule if such amount had
been non-overdue principal (except that in the case of any
PAGE
amount that does not have an applicable interest rate
hereunder the rate charged shall be 2% per annum over the
Bank's Base Rate rate current from time to time). Interest
so accrued shall be due on demand or (in the absence of
demand) on the last day of the default interest period in
which it accrued and, if unpaid, shall be compounded on the
last day of that and each successive interest period.
Interest on overdue amounts shall be charged and compounded
on this basis after as well as before any judgement obtained
hereunder.
6. Guarantees
----------
The repayment of each Borrower's obligations hereunder will
be guaranteed by the Parent by the execution of a guarantee
acceptable to the Bank in the principal sum of US$100,000,000
plus interest and other liabilities as detailed therein.
7. Fees
----
The Parent shall pay to the Bank the following fees:
(i) an arrangement fee of #65,000 upon acceptance by the
Parent of the Facility; and
(ii) a facility fee of #35,000 per annum annually in
advance during the continuation of the Facility.
8. Cancellation
------------
Any undrawn part of the amount of the Facility may be
cancelled by the Parent in minimum amounts of US$1,000,000
and multiples of US$500,000 subject to the Parent giving the
Bank not less than seven days' notice in writing (such
notice, once given, shall be irrevocable).
Amounts which are cancelled will no longer be available for
drawing.
9. Change of Circumstances
-----------------------
In the event of any change in applicable law or regulation or
the existing requirements of, or any new requirements being
imposed by, the Bank of England or other regulatory authority
the result of which, in the sole opinion of the Bank, is to
increase the cost to it of funding, maintaining or making
available the Facility (or any undrawn amount thereof) or to
reduce the effective return to the Bank then the Borrowers
and/or, as appropriate, the Parent shall pay to the Bank,
upon receipt of documentation evidencing such increased cost
or reduction, as the case may be, such sum as may be
certified by the Bank to the Borrowers and/or the Parent as
shall compensate the Bank for such increased cost or such
reduction.
PAGE
10. Set-off
-------
Any sum of money at any time standing to the credit of a
Borrower or the Parent with the Bank in any currency upon any
account or otherwise (whether or not any such account is held
in such Borrower's or the Parent's name) or provided to the
Bank as cash cover for any bills and/or any outstanding
liabilities under the Facility, may be applied by the Bank at
any time (upon 5 Business Days written notice to such
Borrower and the Parent) in or towards the discharge of any
money or liabilities now or hereafter due, owing or incurred
to the Bank by such Borrower or the Parent hereunder (whether
as principal or surety).
11. Indemnity
---------
11.1 The Parent shall indemnify the Bank on demand (without
prejudice to the Bank's other rights) for any expense, loss
or liability reasonably incurred by the Bank in consequence
of (i) any default or delay by the Borrowers or the Parent in
the payment of any amount when due under this letter, or (ii)
all or part of the Facility being prepaid or becoming
repayable otherwise than on the maturity of the then current
interest period including, without limitation any loss
(including loss of margin), expense or liability sustained or
incurred by the Bank in any such event in liquidating or
re-deploying funds acquired or committed to fund, make
available or maintain the Facility (or any part of it).
11.2 If, for any reason, any amount payable under this letter is
received or recovered in a currency (the "other currency")
other than that in which it is required to be paid hereunder
(the "contractual currency"), then to the extent that the
payment to the Bank (when converted to the contractual
currency at the then applicable rate of exchange) falls short
of the amount so payable under this letter, the Parent shall,
as a separate and independent obligation, fully indemnify the
Bank against the amount of the shortfall. For the purpose of
this sub-clause the expression "rate of exchange" means the
rate at which the Bank is able as soon as practicable after
receipt to purchase the contractual currency in London with
the other currency.
12. Illegality
----------
If, at any time, the Bank determines that it is, or will
become unlawful or contrary to any directives of any agency
or any country or state for it to make, fund or allow to
remain outstanding all or part of the Facility, and/or carry
out all or any of its other obligations towards the
Borrowers and the Parent under this letter, then upon the
Bank notifying the Parent of such event, within 30 days of
that notification or such earlier date (if any) as the Bank
PAGE
shall certify to be necessary to comply with the relevant
law or directive, the Borrowers and/or the Parent (as
appropriate) shall prepay any principal amounts outstanding
together with any accrued interest thereon.
13. Representations and Warranties
------------------------------
13.1 By accepting this letter the Parent and each Borrower
represents and warrants that:
(a) Statutes: The Parent and each of its Material
---------
Subsidiaries are duly organised, existing and (where
relevant) in good standing under the laws of the
jurisdictions of their respective incorporation and have
the corporate power and authority to own their
respective property and assets and to transact the
businesses in which they respectively are engaged or
presently propose to engage and are duly qualified and
(where relevant) in good standing as foreign
corporations.
(b) Corporate Power and Authority: Borrowers: Each of the
-----------------------------------------
Borrowers has the corporate power, and has taken all
necessary corporate action (including, without
limitation, any consent of stockholders required by law
or by its constitutional documents) to authorise it to
execute, deliver and perform the terms and provisions of
and to incur its obligations under this Agreement and to
borrow hereunder or otherwise utilise the Facility. This
Agreement has been or, when executed, will be duly
authorised, executed and delivered by each Borrower and
constitutes the legal, valid and binding obligation of
that Borrower enforceable in accordance with its terms
(except as the enforceability thereof may be limited by
insolvency or similar laws of general application
affecting creditors' rights and by general principles of
equity).
(c) Corporate Power and Authority: Guarantor: The Parent as
-----------------------------------------
Guarantor has the corporate power and has taken all
necessary corporate action (including, without
limitation, any consent of stockholders required by law
or by its constitutional documents) to authorise it to
execute deliver and perform the terms and provisions of
and to incur its obligations under the Guarantee. The
Guarantee has been duly authorised executed and
delivered by the Parent thereto and will when executed
constitute the legal valid and binding obligation of the
Parent enforceable in accordance with its terms (except
as the enforceability thereof may be limited by
insolvency or similar laws of general application
affecting creditors' rights and by general principles of
equity).
PAGE
(d) Compliance with other Instruments: Neither the Parent
----------------------------------
nor any Material Subsidiary is in default under any
material agreement to which it is a party, and the
execution, delivery and performance by each Borrower and
the Parent, as the case may be, of this Agreement and
the Guarantee (a) will not contravene any provision of
Applicable Law, (b) will not conflict with or be
inconsistent with or result in any breach of any of the
terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or
imposition of any Encumbrance on any of the property or
assets of the Parent or any Material Subsidiary pursuant
to the terms of any indenture, mortgage, deed to secure
debt, deed of trust, or other material agreement or
instrument to which the Parent or any Material
Subsidiary is a signatory or by which it is bound or to
which it may be subject, (c) will not violate any
provision of the constitutional documents of the Parent
or any corporate Material Subsidiary and (d) will not
require any Governmental Approval.
(e) Financial Statements of Group: The consolidated
-----------------------------------
financial statements of the Parent and its Subsidiaries
dated 1st January 1994 and the related consolidated
statements of income (including the notes thereto), are
all true and correct in all material respects and
present fairly the consolidated financial condition of
the Parent and its Subsidiaries at that date and the
results of their operations for the year then ending.
To the Parent's knowledge neither the Parent nor any
Material Subsidiary had as at such date any significant
liabilities, material to the Parent and its subsidiaries
on a consolidated basis, contingent or otherwise
(including liabilities for Taxes or any unusual forward
or long-term commitments) which were not disclosed by or
reserved against in the financial statements referred to
above or in the notes thereto, and there are no material
unrealised or anticipated losses from any unfavourable
commitments of the Parent. All such financial
statements were prepared in accordance with generally
accepted accounting principles applied on a consistent
basis throughout the periods involved. Since 1st
January 1994 there has been no material adverse change
in the operations, business, property or assets of, or
in the condition (financial or otherwise) or prospects
of, the Parent and its Material Subsidiaries, taken as a
whole.
(f) Governmental Approvals: No Governmental Approval is
------------------------
required to authorise, or is required in connection with
the execution, delivery and performance of this
Agreement or the Guarantee.
(g) Title to Properties: Each of the Parent and its Material
--------------------
PAGE
Subsidiaries has good and marketable title to its owned
properties, including the properties and assets
reflected in the financial statements referred to in
paragraph (f) above. None of those properties is
subject to any Encumbrance except as referred to in
those financial statements and possible title defects
and Encumbrances which do not materially interfere with
the use or materially detract from the value of such
properties or the operations of the Parent or the
relevant Material Subsidiary.
(h) Taxes : Each of the Parent and its Material Subsidiaries
-----
has filed or caused to be filed all declarations,
reports and tax returns including, in the case of the
Parent and each Material Subsidiary located in the
United States, all federal and state income tax returns
which it is required by law to file, and has paid all
Taxes which are shown as being due and payable on such
returns or on any assessments made against it or any of
its properties. The accruals and reserves on the books
of the Parent and its Material Subsidiaries in respect
of Taxes are adequate for all periods. Neither the
Parent nor any Material Subsidiary has any knowledge of
any unpaid adjustment, assessment or any penalties or
interest of significance, or any basis therefor, by any
taxing authority for any period, except those being
contested in good faith and by appropriate proceedings
which effectively stay the enforcement of any
Encumbrance and the attachment of a penalty.
(i) Solvency: The Parent (i) acknowledges that it will have
---------
received, before the execution of its Guarantee, fair
consideration and reasonably equivalent value for the
obligations incurred or to be incurred by it thereunder,
(ii) represents and warrants that after giving effect to
such obligations (1) the present fair saleable value of
the assets of it exceeds its liabilities in that it
retains sufficient capital reasonably to anticipate the
needs and risks of its ongoing business, and (2) it has
not incurred (actually or contingently) debts beyond its
ability to pay such debts as they mature, and that the
present fair saleable value of its assets is greater
than that needed to pay its probable existing debts as
they become due.
(j) Disclosure: Neither this Agreement, nor any other
----------
document, certificate or statement furnished to the Bank
by or on behalf of either Borrower or the Parent in
connection herewith contains any untrue statement of a
material fact or omits to state a material fact
necessary in order to make the statements contained
herein and therein not misleading. There is no fact
peculiar to the Parent or any of its Material
Subsidiaries which materially adversely affects or may
PAGE
(as far as the Parent can now foresee) materially
adversely affect the business, property or assets, or
financial condition of the Parent and its Material
Subsidiaries taken as a whole which has not been set out
in this Agreement, or in the other documents,
certificates and statements furnished to the Bank by or
on behalf of the Parent, prior to the date hereof in
connection with the transactions contemplated by this
letter.
13.2Each party providing the same shall be deemed to repeat the
representations and warranties contained in the preceding
sub-clause on each occasion on which there is any
utilisation of the Facility by reference to the
circumstances then existing.
14. Positive Covenants
------------------
14.1 Use of Proceeds
---------------
Each Borrower undertakes that the proceeds of the Facility
will be used for the general working capital purposes of the
Borrowers. None of such proceeds shall be used to purchase
or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the
meaning of Regulations U and X) or to extend credit to others
for the purpose of purchasing or carrying any such margin
stock. If requested by the Bank, the Parent will deliver
statements in conformity with the requirements of Federal
Reserve Form U-l referred to in Regulation U.
14.2 Financial Information for Group
-------------------------------
The Parent will deliver to the Bank:
(a) within 90 days after the end of each year of the Parent
and its Subsidiaries an audited consolidated balance
sheet of the Parent as at the end of such year, and
audited consolidated statements of income and cash flow
of the Parent and its Subsidiaries for such year, all in
reasonable detail and with the unqualified opinion of
Arthur Andersen (or other independent certified public
accountants of recognised standing selected by the
Parent and reasonably satisfactory to the Bank) together
with the management letter prepared in connection with
such audited financial statements, provided that the
Parent may make a change in its accounting principles in
any year, so long as (w) such change or changes are
clearly reflected in the annual audit report, and (x)
any principle has been concurred in by the Parent and
the Parent's independent certified public accountants
and is in accordance with generally accepted accounting
principles;
PAGE
(b) copies of its quarterly results on Form 10-Q and its
audited Consolidated Profit and Loss Account and Balance
Sheet (in the form of an Annual Report and/or form 10-K,
as appropriate) not later than 45 days from the end of
each quarter and 90 days from the end of each accounting
reference period respectively; and
(c) with reasonable promptness, such further information
regarding the business affairs and financial condition
of the Parent or any Material Subsidiary as the Bank may
reasonably request.
14.3 Maintenance of Books: Inspection of Property and Records
--------------------------------------------------------
The Parent shall and shall procure that each of its Material
Subsidiaries shall prepare or cause to be prepared (a) its
annual statements and reports in accordance with generally
accepted accounting principles and permit any person
designated by the Bank to visit and inspect any of its
properties, corporate books and financial records, and to
discuss its accounts, affairs and finance with the principal
officers of the Parent and such Material Subsidiary during
reasonable business hours, and upon reasonable prior notice,
from time to time, as the Bank may reasonably request and
(b) its interim statements and reports in accordance with
methods historically used by such Material Subsidiary, as
the case may be, as such methods have yielded financial
information which has historically not required material
annual adjustments to bring such information into compliance
with generally accepted accounting principles.
14.4 Maintenance of Properties
-------------------------
The Parent shall and shall procure that each of its Material
Subsidiaries shall maintain, preserve, protect and keep, or
cause to be maintained, preserved, protected and kept, its
properties and every part thereof in good repair, working
order and condition, and from time to time will make or
cause to be made all needful and proper repairs, renewals,
replacements, extensions, additions, betterments, and
improvements thereto, so that the business carried on in
connection therewith may be properly and advantageously
conducted at all times Provided that the Parent and its
Material Subsidiaries shall not be obliged to repair or
replace any such properties which have become obsolete or
unsuitable or inadequate for the purpose for which they are
used.
14.5 Maintenance of Insurance
------------------------
The Parent shall and shall procure that each of its Material
Subsidiaries shall maintain liability and worker's
compensation insurance (or maintain a legally sufficient,
fully funded, programme of self-insurance against worker's
PAGE
compensation liabilities), adequate insurance on its
properties against such hazards and in at least such amounts
as is customary in the business and, at the request of the
Bank, the Parent will forthwith deliver an officer's
certificate specifying the details of the insurance then in
effect.
14.6 Taxes
-----
The Parent shall and shall procure that each of its Material
Subsidiaries shall pay and discharge all Taxes prior to the
date on which penalties attach thereto, and will pay all
Taxes which, if unpaid, might become an Encumbrance upon any
of its property Provided that the Parent and its Material
Subsidiaries shall not be required to pay and discharge any
such Tax so long as the legality or amount thereof shall be
promptly contested in good faith and by appropriate
proceedings which effectively stay the enforcement of any
Encumbrance and the attachment of a penalty and the Parent
or such Material Subsidiary, as the case may be, shall have
set aside appropriate reserves therefor in accordance with
generally accepted accounting principles.
14.7 Existence and Status
--------------------
The Parent and each of its Material Subsidiaries which is a
corporation shall maintain its corporate existence and
(where relevant) good standing in its state of incorporation
and its qualification and (where relevant) good standing as
a foreign corporation in all jurisdictions where its
ownership of property or its business activities cause such
qualification to be required.
14.8 Litigation
----------
The Parent shall give prompt notice to the Bank of any
material pending legal proceedings. For the purposes of
this Clause 14.8, only pending legal proceedings which would
be required to be reported by the Parent for Securities and
Exchange Commission Filings need be reported to the Bank.
14.9 Stockholder Reports, etc
------------------------
Promptly after the same are available, the Parent will
provide to the Bank copies of all publicly available current
reports on Form 8-K, proxy statements and prospectuses filed
with the Securities and Exchange Commission under the
Securities Act 1933, as amended or the Securities Exchange
Act 1934 as amended, as the case may be, (excluding
prospectuses relating to employee stock option or benefit
plans).
15. Payments and Gross-Up
---------------------
PAGE
15. I All payments by a Borrower, whether of principal,
interest or otherwise, shall be made to the Bank not later
than 12 noon (London time) on the due date in same day funds
(or as otherwise expressly agreed by the Bank), without
set-off or counterclaim and free of any deduction or
withholding whatsoever, including without prejudice to the
generality of the foregoing, for or on account of Taxes
unless that Borrower is required by law to make any such
payments subject to deduction or withholding on account of
Taxes, in which case the sum payable by that Borrower in
respect of which such deduction or withholding is required
to be made shall be increased to the extent necessary to
ensure that, after the making of such deduction or
withholding, the Bank receives and retains (free from any
liability in respect of any such deduction or withholding) a
net sum equal to the sum which it would have received and so
retained had no such deduction or withholding been made or
required to be made.
15.2 Without prejudice to the provisions of Clause I5.1, if the
Bank is required by law to make any payment on account of
Taxes (other than Taxes on its overall net income) or
otherwise on or in relation to any sum received or
receivable by the Bank hereunder, or any liability in
respect of any such payment is imposed, levied or assessed
against the Bank, the relevant Borrower shall, on demand by
the Bank, indemnify the Bank against such payment or
liability together with any interest penalties and expenses
payable or incurred in connection therewith (except to the
extent that such interest penalties and expenses results
from the late settlement of such payment or liability by the
Bank).
15.3 If the Bank intends to make a claim pursuant to clause 15.2,
it shall notify the relevant Borrower of the event by reason
of which it is entitled to do so and provide to that
Borrower in reasonable detail a calculation of the amount
claimed Provided that nothing herein shall require the Bank
to disclose any information relating to the organisation of
its affairs which the Bank shall, in its sole opinion,
consider to be confidential.
16. Interpretation
--------------
16.1 In this Facility Letter, unless the context otherwise
requires: -
"Agreement" means the agreement arising on the Borrowers'
acceptance of the offer contained in this Facility Letter;
" Applicable Law" means (i) all applicable common law and
principles of equity and (ii) all applicable provisions of
all (a) constitutions, statutes, rules, regulations and
orders of governmental bodies, (b) Governmental Approvals
PAGE
and (c) orders, decisions, judgments and decrees of all
courts and arbitrators;
"Base Rate" means the Bank's base rate published from time
to time;
" Business Day" means a day on which the relevant London
financial markets are open for dealings in eurocurrency
deposits between banks and, if a payment falls due
hereunder, also, a day on which banks in the relevant
principal financial centre (as determined by the Bank) for
the relevant currency are open for dealings in such
currency. Should any requirement under this letter fall due
on a date which is not a Business Day then such date shall
be extended to the next Business Day;
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the
regulations promulgated and the rulings issued thereunder;
" Encumbrance" includes any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind or
description (and shall include, without limitation, any
agreement to give any of the foregoing, any conditional sale
or other title retention agreement, any lease in the nature
thereof including any lease or similar arrangement with a
public authority executed in connection with the issuance of
industrial development revenue bonds or pollution control
revenue bonds, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any
jurisdiction);
"Governmental Approval" means any order, permission,
authorization, consent, approval, licence, franchise, permit
or validation of, exemption by, registration or filing with,
or report or notice to, any governmental agency or unit, or
any public commission, boarder authority;
"Guarantor" means the Parent;
" Guarantee" means the guarantee executed and delivered to
the Bank pursuant to Clause 6;
" Material Subsidiary" means any Subsidiary of the Parent
designated as a Borrower pursuant to Clause 3 and any other
Subsidiary of the Parent which alone, or together with its
own subsidiaries, represents either or both of (a) not less
than 5 % of the net earnings before Taxes of the Parent and
its Subsidiaries taken as a whole in the fiscal year of the
Parent most recently ended or (b) not less than 5% of the
consolidated book value of the assets of the Parent and its
subsidiaries taken as a whole as of the last day of the
fiscal year of the Parent most recently ended, and "Material
Subsidiaries" shall be construed accordingly;
PAGE
"Month" means a period starting on one day in a calendar
Month and ending on the corresponding day in the next
calendar Month or, if that is not a Business Day, on the
next Business Day unless that falls in another calendar
Month in which case it shall end on the preceding Business
Day, save that where a period starts on the last Business
Day in a Month or there is no corresponding day in the Month
in which the period ends, that period shall end on the last
Business Day in the later Month;
"Outstanding Amount" means, in relation to a Bank Guarantee
at any time, the maximum
actual and contingent liability of the Bank under that Bank
Guarantee at that time;
"Regulation U or X" shall mean Regulation U or X
respectively of the Board of Governors of the Federal
Reserve System, as in effect from time to time, and any
regulation successor thereto;
"Sterling" and "#" means lawful currency of the United
Kingdom;
"Subsidiary" shall mean a subsidiary undertaking within the
meaning of Section 736 of the
Companies Act 1985;
" Tax" shall mean, with respect to any person or entity, any
federal, state or foreign tax, assessment, customs duties,
or other governmental charge, levy or assessment (including
any withholding tax) upon such person or entity or upon such
person's or entity's assets, revenues, income or profits
(other than United Kingdom income taxes imposed upon the
Bank);
"U.S. Dollar", "Dollar" and "I" shall mean lawful money of
the United States of America.
16.2 Reference to any statutory provision includes any amended or
re-enacted version of such provision with effect from the
date on which it comes into force.
16.3 Save as otherwise expressly provided herein, references in
this Agreement to this Agreement or any other document
include reference to this Agreement or such other document
as varied, supplemented and/or replaced as agreed between
the parties hereto or as permitted hereby or to which the
Bank shall have consented from time to time.
16.4 References to Clauses, sub-clauses, paragraphs, Schedules
and annexures are to be construed as references to Clauses,
sub-clauses, paragraphs, Schedules and annexures of this
Agreement unless otherwise stated.
PAGE
16.5 Clause headings are for convenience only and shall not
affect the construction hereof.
17. Governing Law and Jurisdiction
------------------------------
17.1 This Facility Letter shall be governed by and construed in
accordance with English law.
17.2 The Parent and its Material Subsidiaries agree that any
legal action or proceedings arising out of or in connection
with this Facility Letter may be brought in the High Court
of Justice in England and irrevocably submit to the
jurisdiction of that Court, provided that this submission to
jurisdiction shall not (and shall not be construed so as to)
limit the Bank's right to take proceedings in whatever
jurisdiction shall seem fit to the Bank,
18. Acceptance
----------
Prior to the Facility being utilised, the Parent shall
provide the Bank with the following:-
(a) the enclosed duplicate of this letter duly signed on each
Borrower's and the Parent's behalf as evidence of
acceptance of the terms and conditions stated herein;
(b) a certified true copy of a resolution of the Parent's
Board of Directors: -
(i) accepting the Facility on the terms and conditions
stated herein,
(ii) authorising a specified person, or persons, to
sign and return to the Bank the duplicate of this
letter, and
(iii) authorising the Bank to accept instructions and
confirmation in connection with the Facility signed
in accordance with the Bank's signing mandate current
from time to time, and to accept instructions in
connection with drawings under the Facility by
telephone from any person specifically authorised to
give such telephone instructions,
(c) confirmed specimens of the signatures of those officers
referred to in (b)(ii) above; and
(d) the Guarantee referred to in clause 6 duly executed by
the Parent and in the form required by the Bank; and
(e) an opinion of the legal counsel to the Parent addressed
to the Bank in a form reasonably satisfactory to the
Bank and which opinion includes confirmation that the
PAGE
Parent is legally empowered to accept and enter into the
terms and conditions of this letter and the related
guarantee.
Yours faithfully
For and on behalf of
Barclays Bank PLC
/s/ Jonathan L Gray
Jonathan L Gray
Relationship Director - North America
Large Corporate Banking
Accepted on the terms and conditions stated herein.
For and on behalf of
THERMO ELECTRON CORPORATION
/s/ Jonathan W. Painter
by..............................................................
........
date.................10/2/95....................................
..............
PAGE
SCHEDULE 1
----------
FORM OF DEED OF ACCESSION
-------------------------
THIS DEED is made on 19
BETWEEN
(1) [ ] ("the Borrower");
(2) THERMO ELECTRON CORPORATION ("the Parent") on behalf of
itself and each of the other Borrowers (as defined in the
Facilities Letter); and
(3) BARCLAYS BANK PLC ("the Bank").
WHEREAS this Deed is supplemental to the facilities letter dated
[ ], 1995 and made
between the Parent and the Bank ("the Facilities Letter").
NOW THIS DEED WITNESSETH:-
1. Accession of Borrower
---------------------
In consideration of the Bank agreeing to the Borrower
becoming an additional Borrower pursuant to Clause 3 of
the Facilities Letter and by the execution of this Deed
the Borrower agrees to observe and be bound by the terms
and provisions of the Facilities Letter insofar as they
apply to the Borrower as if it were an original party to
the Facilities Letter.
2. Interpretation
--------------
This Deed shall be read as one with the Facilities Letter
so that any reference therein to "this Agreement",
"hereunder" and similar expressions shall include and be
deemed to include this Deed.
3. Conditions precedent
--------------------
The obligations of the Bank hereunder are subject to the
condition that the Bank is satisfied that all appropriate
conditions precedent have been fulfilled by the Borrower
pursuant to Clause 3 of the Facilities Letter.
PAGE
IN WITNESS whereof the parties hereto have caused this Deed to be
duly executed on the date first
written above.
EXECUTED AS A DEED by
[THE BORROWER]
in the presence of:-
EXECUTED AS A DEED by
THERMO ELECTRON CORPORATION
in the presence of:-
SCHEDULE 2
----------
Form of request for allocation of the Facility
----------------------------------------------
FROM: Thermo Electron Corporation
TO: Barclays Bank PLC
Dear Sirs,
Facility Letter dated [ ] made between Thermo Electron
----------------------- ------------------------------
Corporation (the "Parent") and
------------------------------
Barclays Bank PLC (the "Bank") (the "Facility")
-----------------------------------------------
We refer to the above Facility Letter. Terms and expressions
defined in the Facility Letter shall have
the same meaning when used in this request.
Pursuant to clause 3.2 of the Facility Letter, we hereby make the
following request(s) for an allocation
of [a] tranche(s) of the Facility: -
Name of Subsidiary Amount of Tranche
------------------ -----------------
Option(s)
---------
Requested Requested
--------- ---------
We confirm that:-
(1) each of the representations and warranties contained in
sub-clause 13.1 of the Facility Letter is true and
accurate if made on the date hereof with reference to the
facts and circumstances now existing;
(2) on the date on which the tranche(s) requested above will
be utilised there will exist no breach of the terms of the
PAGE
Facility Letter;
(3) the above-named Subsidiary has executed and provided to
the Bank a deed of accession in the form stipulated by
clause 3.1 of the Facility Letter.
Yours faithfully
THERMO ELECTRON CORPORATION
SCHEDULE A
----------
Sterling Money Market Loan
--------------------------
The Sterling Money Market Loan may be drawn in one or more
amounts, each drawing to be a minimum amount of #500,000 and
multiples of #100,000 thereafter for periods of 30,60 or 90 days
at the Borrower's option or other mutually agreed period but no
drawing shall be made for an interest period with a maturity date
of more than three months beyond the expiry date detailed in
clause 2.2 of the letter.
When wishing to draw under the Sterling Money Market Loan, the
Borrower should telephone the account holding branch of the Bank
on or shortly before the day on which funds are required stating
the amount of the drawing, the period required and giving
instructions for payment of the funds. In the event these
instructions do not stipulate that the funds must be credited to
the Borrower's current account with the account holding Branch
such instructions must be confirmed by letter to the account
holding Branch at the earliest opportunity.
The rate of interest on each drawing will include the Bank's
margin of 0.45% per annum added to the cost of funds to the Bank
(such cost of funds to be conclusively determined by the Bank and
shall include any associated costs resulting from requirements of
the Bank of England or other governmental authorities or
agencies, whether having the force of law or otherwise, affecting
the conduct of the Bank's business) for the period of the
drawing. Interest will be payable without deduction at six
monthly intervals if appropriate and at the maturity of each
drawing, and calculated on the basis of actual days elapsed over
a 365 day year.
Each drawing, together with interest thereon, will be repaid on
PAGE
its maturity date by debit to the Borrower's current account at
the account holding branch.
SCHEDULE B
----------
Sterling Overdraft
------------------
The Sterling Overdraft will be available on the Borrower's
current account at the Branch with interest charged at a rate of
1% per annum over the Bank's Base Rate current from time to time.
Interest, together with other charges will be debited to the
Borrower's current account at the Branch quarterly in arrears in
March, June, September and December each year or at such other
times as may be determined by the Bank, and such interest will be
calculated on the basis of actual days elapsed over a 365 day
year.
PAGE
SCHEDULE C
----------
Currency Money Market Loan
--------------------------
This option relates to a short term loan in any currency (other
than sterling) which is freely transferable and convertible into
sterling and is available to the Bank in the relevant amount for
the relevant period in the normal course of business on the
London Inter-Bank market. The Bank shall be sole arbitor of the
availability of such currencies.
The short term currency loans may be drawn in one or more
amounts, each drawing to be a minimum amount of the currency
equivalent of US$500,000. Larger drawings shall be in amounts
which are mutually agreeable and drawings shall be for periods up
to a maximum of six months at the Borrower's option or other
mutually agreed periods but no drawing should be made for an
interest period with a maturity date of more than three months
beyond the expiry date detailed in clause 2.2 of the letter.
When drawings are to be made, the Borrower should telephone the
account holding branch of the Bank two business days before the
business day on which funds are required stating the amount of
the drawing, the period required and giving instructions for
payment of the funds. In the event these instructions do not
stipulate that the funds must be credited to the Borrower's
PAGE
current account with the Branch, such instructions must be
confirmed by letter to the Branch at the earliest opportunity.
The interest rate on each drawing will include the Bank's margin
of 0.45% per annum added to the cost of funds to the Bank (such
cost of funds to be conclusively determined by the Bank) which
will be dependent upon the conditions prevailing in the relevant
London financial markets for the period of the drawing. Interest
will be payable without deduction at six monthly intervals, if
appropriate, and at the maturity of each drawing, and calculated
on the basis of actual days elapsed over a 360 day year.
Each drawing, together with interest thereon, will be repaid on
its maturity date in the currency in which such drawing is
outstanding in immediately available freely convertible and
transferable funds without any set-off or counterclaim and free
of any deduction or withholding on any ground, to such bank or
branch of the Bank as the Bank may specify. In the event of the
Borrower being compelled by law to make any such deduction or
withholding, the Borrower will pay to the Bank such additional
amount(s) as are required to ensure that the Bank receives and
retains a net amount equal to the full amount which it would have
received if no such deduction or withholding had been made.
For the purposes of this letter a "business day" shall mean a day
----
on which the relevant London financial markets are open for
dealings in eurocurrency deposits between banks and, in addition,
so far as concerns a day on which a payment falls to be made
hereunder, a day on which banks in the relevant principal
financial centre (as determined by the Bank) for the relevant
currency are open for dealings in such currency. Should any
requirements under this letter fall due on a date which is not a
business day, then such date shall be extended to the next
business day.
SCHEDULE D
----------
Foreign Currency Overdraft
--------------------------
The Foreign Currency overdraft will made available in any
currency (other than sterling) as previously agreed by and
arranged with the Bank, and which currency is freely transferable
and available to the Bank in the normal course of business.
The Foreign Currency Overdraft will be available on the
Borrower's foreign currency account at the account holding branch
with interest charged at 1% per annum over the bank's call loan
PAGE
rate current from time to time. Interest together with other
charges will be debited to the Borrower's foreign currency
account at the account holding branch quarterly in arrears in
March, June, September and December each year or at such times as
may be determined by the Bank, and such interest will be
calculated on the basis of actual days elapsed over a 360 day
year.
SCHEDULE E
----------
Revolving Acceptance Credit
---------------------------
To enable drawings to be made under the Revolving Acceptance
Credit (the "Credit"), the Borrower should either:
PAGE
(I) forward bills to the Branch to be in the Branch's hands at
least four business days before the funds are required.
Bills should be drawn by the Borrower on Barclays Bank PLC, Head
Office, 54 Lombard Street, London EC3P 3AH for fixed periods of
30,60 or 90 days except that no period may be selected which
would mature more than 90 days after the expiry date detailed in
clause 2 of this letter. If the selected maturity date is a
non-business day, bills should be drawn to mature on the
following business day. Individual bills should be drawn in
amounts of #50,000 and should be made to the Bank's order and
claused "Drawn against purchases of electronic security
systems" or
(ii) forward a supply of bills to the Branch drawn as in (i)
above, except that the dates will be left blank. The branch
will arrange for the supply of bills to be held by the
Bank's Global Treasury Services Office in London ("GTS"),
and for the dates to be completed in accordance with the
Borrower's oral instructions when drawings are required.
When wishing to draw under the Credit, the Borrower should
telephone the Bank's dealers at GTS on 071 696 2496 before 12.00
noon on the day on which funds are required, stating the amount
required and the period, and agreeing the discount rate quoted.
The Bank will accept the bills and will, at its option, either
(i) discount the bills itself in which case the rate of discount
will be the then current offer rate as quoted by the Bank for
such bills in the London Discount Market, or (ii) offer the bills
for discount as agent on the Borrower's behalf in the London
Discount Market at the discount rate prevailing in such market at
the time when discount is effected. The proceeds after discount
and acceptance commission will be credited to the Borrower's
current account at the Branch.
Acceptance commission payable at the time of acceptance will be
charged at the rate of 0.5% per annum on the face value of each
draft presented and will be deducted from the proceeds after
discount.
The Bank will debit the Borrower's current account with the face
value of each draft upon its maturity date. The Credit is
revolving, however, and it will be open to the Borrower within
the validity and terms of the Facility to present further bills
in accordance with this clause.
By its acceptance of the Facility, the Borrower undertakes that
during the validity of the Credit it will ensure that there are
sufficient purchases to cover the amounts drawn during the period
for which such bills are drawn and which are not the subject of
other financing arrangements. The Borrower will provide a
certificate to this effect, signed by an official authorised to
draw bills, if requested by the Bank in writing.
PAGE
The acceptance of a bill shall give rise to a debt from the
Borrower to the Bank equal to the face value of such bill, which
debt shall be due for payment on the maturity of such bill.
SCHEDULE F
----------
Bonds, Guarantees and Indemnities
---------------------------------
The Bank is prepared to consider issuing guarantees, bonds and
indemnities on behalf of the Borrower in respect of normally
accepted and commercial transactions, subject to prior agreement
with the Bank and receipt of the necessary counter indemnities.
Pricing will be as follows:
expiry less than 1 year : 0.500% per annum
one to three years : 0.625% per annum
three to five years : 0.750% per annum
Other, including guarantees
with non-standard wording or
without a fixed expiry date : 1.000% per annum
PAGE
SCHEDULE G
----------
Letters of Credit
-----------------
The Bank is prepared to open Documentary Letters of Credit on
instructions from the Borrower to provide for the purchase of
commodities as may be agreed by the bank from time to time. All
Documentary Letters of Credit are issued subject to the terms and
conditions set out in the Bank's standard form for opening
Documentary Letters of Credit and are also subject to the
"Uniform Customs and Practice for Documentary Credits (1983
Revision)", or any subsequent revision as issued by the
International Chamber of Commerce. Pricing will be decided on a
case by case basis.
PAGE
SCHEDULE H
----------
ANCILLARY FACILITIES
--------------------
Negotiation of Sterling/Foreign Currency Cheques and Bills of
-------------------------------------------------------------
Exchange Payable Abroad
-----------------------
The Bank will purchase, with recourse, suitable foreign currency
and sterling cheques payable abroad and/or approved foreign
currency or sterling bills of exchange payable abroad. The
suitability of those cheques and bills of exchange which the Bank
is prepared to purchase is entirely at the discretion of the
Bank, and is subject to the Uniform Rules of the Collection of
Commercial Paper (1978 Revision). Pricing will be decided on a
case by case basis.
SFET
----
The Bank is prepared to consider marking a Spot and Forward
Exchange Transaction (SFET) Facility.
The SFET facility covers the maximum liability of the Borrower to
the Bank outstanding at any time under contracts of not more than
12 months duration for the forward purchase or sale of foreign
currency for delivery at a future date and spot purchase or
sale-of foreign currencies, but excludes purchases or sales where
the Bank is required irrevocably to pay away funds prior to
receiving firm confirmation of incoming cover.
When wishing to utilise the SFET facility the Borrower should
telephone the account holding branch. All payment and delivery
instructions are to be advised to and processed by the account
holding branch and confirmed by letter at the earliest
opportunity.
Bankers Automated Clearing Services Limited (BACS)
--------------------------------------------------
The Bank is prepared to make available a BACS facility to
accommodate
the Company's requirements for automated payments or receipts.
Daylight Exposure Limit (DEL)
-----------------------------
The Bank is prepared to make available a DEL to cover the
aggregate of the face value of the funds which the Bank is
required to pay away by CHAPS prior to receiving incoming funds
to cover these payments on the same day.
Branch Originated BACS Facility (BOBS)
--------------------------------------
The Bank is prepared to make available a BOBS facility to
accommodate the Company's requirements for automated payments or
receipts when originated by the account holding branch.
PAGE
The Directors
Thermo Electron Corporation
81 Wyman Street
Waltham,
M.A. 02254-9046
U.S.A.
25th July 1997
Dear Sirs
We refer to the letter (the _Letter_) dated July 1995 and
subsequently varied by the letters dated 10th April 1996
and 1st July 1996 from Barclays Bank PLC (the _Bank_)
setting out the terms and conditions of a $100,000,000 (one
hundred million United States Dollars) or currency
equivalent aggregate short term facilities (the _Facility_)
provided to Thermo Electron Corporation (the _Borrower_).
We are pleased to vary the terms and conditions of the
Facility Letter as follows:-
1. Availability : In the absence of demand or cancellation
by the Bank the Facility is available for utilisation
until 24th July 1998 and no liability or liabilities
incurred may extend more than three months beyond the
above mentioned expiry date.
2. Amount : the amount of the Facility is hereby amended to
$150,000,000 (one hundred and fifty million United States
Dollars).
3. Fees : The Borrower shall pay to the Bank the following
fees :
i) an arrangement fee of #150,000 upon acceptance of this
letter ; and
ii) a fee calculated at the rate of 0.10 per cent per
annum payable quarterly in
arrears on the total amounts utilised under the
Facility, during the continuation of
the Facility.
4. Set-Off : we hereby amend clause 10, line 4, by deleting
the words _(upon 5 Business Days written notice to such
Borrower and the Parent)_.
5. Schedule A - Sterling Money Market Loan : The Bank's
margin is hereby amended to 0.40% per annum.
6. Schedule C - Currency Money Market Loan : The Bank's
margin is hereby amended to 0.40% per annum.
PAGE
7. Schedule F - Bonds, Guarantees and Indemnities :
Commission at a rate of 0.45% per annum will be charged
regardless of expiry, subject to a minimum of #100.
All other terms and conditions will remain unchanged.
Acceptance of the amended terms and conditions shall be
signified by the Borrower returning to the Bank :-
a) the enclosed duplicate of this letter duly signed on the
Borrower's behalf as evidence of acceptance of the
amended terms and conditions stated herein, and
b) a certified true copy of a resolution of the Borrower's
Board of Directors:-
i) accepting the amended terms and conditions stated
herein, and
ii) authorising a specified person, or persons, to
endorse and return to the
Bank the duplicate of this letter.
Yours faithfully,
for and on behalf of
BARCLAYS BANK PLC
/s/ Jonathan L Gray
Jonathan L Gray
Relationship Director - North America
Large Corporate Banking
Accepted as of the above date on the terms and conditions
stated herein, pursuant to a resolution of the Board of
Directors (a certified true copy of which is attached
hereto).
for and on behalf of
Thermo Electron Corporation
/s/ Kenneth J. Apicerno
Assistant Treasurer