Exhibit 10.4
AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
The Master Repurchase Agreement dated as of August 10, 1994 between
Thermo Electron Corporation, a Delaware corporation ("Seller"), and
ThermoSpectra Corporation, a Delaware corporation (the "Buyer"), is
hereby amended and restated in its entirety as follows on and as of
December 28, 1996.
1. Applicability
From time to time Buyer and Seller may enter into transactions in
which Seller agrees to transfer to Buyer certain securities and/or
financial instruments ("Securities") against the transfer of funds by
Buyer, with a simultaneous agreement by Buyer to transfer to Seller such
Securities on demand, against the transfer of funds by Seller. Each such
transaction shall be referred to herein as a "Transaction" and shall be
governed by this Agreement, unless otherwise agreed in writing.
2. Definitions
(a) "Act of Insolvency", with respect to either party (i) the
commencement by such party as debtor of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or
similar law, or such party seeking the appointment of a receiver,
trustee, custodian or similar official for such party or any substantial
part of its property; or (ii) the commencement of any such case or
proceeding against such party, or another seeking such an appointment,
which (A) is consented to or not timely contested by such party, (B)
results in the entry of an order for relief, such an appointment or the
entry of an order having a similar effect, or (C) is not dismissed within
15 days; or (iii) the making by a party of a general assignment for the
benefit of creditors; or (iv) the admission in writing by a party of such
party's inability to pay such party's debts as they become due;
(b) "Additional Purchased Securities", Securities provided by
Seller to Buyer pursuant to Paragraph 4(a) hereof;
(c) "Income", with respect to any Security at any time, any
principal thereof then payable and all interest, dividends or other
distributions thereon;
(d) "Market Value", with respect to any Securities as of any date,
the price for such Securities on such date obtained from a generally
recognized source agreed to by the parties or the most recent closing bid
quotation from such a source, plus accrued Income to the extent not
included therein (other than any Income transferred to Seller pursuant to
Paragraph 6 hereof) as of such date (unless contrary to market practice
for such Securities);
(e) "Other Buyers", third parties that have entered into an
agreement with Seller that is substantially similar to this Agreement;
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(f) "Pricing Rate", a rate equal to the Commercial Paper Composite
rate for 90-day maturities provided by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated (or, if such rate is not available, a substantially
equivalent rate agreed to by Buyer and Seller) plus 25 basis points,
which rate shall be adjusted on the first business day of each fiscal
quarter and shall be in effect for the entirety such fiscal quarter;
(g) "Purchase Price", the price at which Purchased Securities are
transferred by Seller to Buyer;
(h) "Purchased Securities", the Securities transferred by Seller to
Buyer in a Transaction hereunder, and any Securities substituted therefor
in accordance with Paragraph 9 hereof. The term "Purchased Securities"
with respect to any Transaction at any time also shall include Additional
Purchase Securities transferred pursuant to Paragraph 4(a) and shall
exclude Securities returned pursuant to Paragraph 4(b);
(i) "Repurchase Collateral Account", a book account maintained by
Seller containing, among other Securities, the Purchased Securities; and
(j) "Repurchase Price", for any Purchased Security, an amount equal
to the Purchase Price paid by Buyer to Seller for such Purchased
Security.
3. Transactions
(a) A Transaction may be initiated by Buyer upon the transfer of
the Purchase Price to Seller's account. Upon such transfer, Seller shall
transfer to Buyer Purchased Securities having a Market Value equal to
103% of the Purchase Price.
(b) Purchased Securities shall be held in custody for Buyer by
Seller in the Repurchase Collateral Account. Seller shall indicate on
its books for such account Buyer's ownership of the Purchased Securities.
Upon reasonable request from Buyer, Seller shall provide Buyer with a
complete list of Purchased Securities owned by Buyer.
(c) Upon demand by Buyer or Seller, Seller shall repurchase from
Buyer, and Buyer shall sell to Seller, for the Repurchase Price all or
any part of the Purchased Securities then owned by Buyer.
4. Margin Maintenance
(a) If at any time the aggregate Market Value of all Purchased
Securities then owned by Buyer is less than 103% of the aggregate
Repurchase Price for such Purchased Securities, then Seller shall
transfer to Buyer additional Securities ("Additional Purchased
Securities"), so that the aggregate Market Value of such Purchased
Securities, including any such Additional Purchased Securities, will
thereupon equal or exceed 103% of such aggregate Repurchase Price.
(b) If at any time the aggregate Market Value of all Purchased
Securities then owned by Buyer exceeds 103% of the aggregate Repurchase
Price for such Purchased Securities, then Seller may transfer Purchased
Securities to Seller, so that the aggregate Market Value of such
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Purchased Securities will thereupon not exceed 103% of such aggregate
Repurchase Price.
5. Interest Payments
If during any fiscal month Buyer owned Purchased Securities, then on
the first day of the next following fiscal month Seller shall pay to
Buyer an amount equal to the sum of the aggregate Repurchase Prices of
the Purchased Securities owned by Buyer at the close of each day during
the preceding fiscal month divided by the number of days in such month
and the product multiplied by the Pricing Rate times the number of days
in such month divided by 360.
6. Income Payments and Voting Rights
Where a particular Transaction's term extends over an Income payment
date on the Purchased Securities subject to that Transaction, Buyer
shall, on the date such Income is payable, transfer to Seller an amount
equal to such Income payment or payments with respect to any Purchased
Securities subject to such Transaction. Seller shall retain all voting
rights with respect to Purchased Securities sold to Buyer under this
Agreement.
7. Security Interest
Although the parties intend that all Transactions hereunder be sales
and purchases and not loans, in the event any such Transactions are
deemed to be loans, Seller shall be deemed to have pledged to Buyer as
security for the performance by Seller of its obligations under each such
Transaction and this Agreement, and shall be deemed to have granted to
Buyer a security interest in, all of the Purchased Securities with
respect to all Transactions hereunder and all proceeds thereof.
8. Payment and Transfer
Unless otherwise mutually agreed, all transfers of funds hereunder
shall be in immediately available funds. As used herein with respect to
Securities, "transfer" is intended to have the same meaning as when used
in Section 8-313 of the Massachusetts Uniform Commercial Code or, where
applicable, in any federal regulation governing transfers of the
Securities.
9. Substitution
Buyer hereby grants Seller the authority to manage, in Seller's sole
discretion, the Purchased Securities held in custody for Buyer by Seller
in the Repurchase Collateral Account. Buyer expressly agrees that Seller
may (i) substitute other Securities for any Purchased Securities and (ii)
commingle Purchased Securities with other Securities held in the
Repurchase Collateral Account. Substitutions shall be made by transfer
to Buyer of such other Securities and transfer to Seller of the Purchased
Securities for which substitution is being made. After substitution, the
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substituted Securities shall be deemed to be Purchased Securities.
Securities which are substituted for Purchased Securities shall have a
Market Value at the time of substitution equal to or greater than the
Market Value of the Purchase Securities for which such Securities were
substituted.
10. Representations
Each of Buyer and Seller represents and warrants to the other that
(i) it is duly authorized to execute and deliver this Agreement, to enter
into the Transactions contemplated hereunder and to perform its
obligations hereunder and has taken all necessary action to authorize
such execution, delivery and performance, (ii) the person signing this
Agreement on its behalf is duly authorized to do so on its behalf, (iii)
it has obtained all authorizations of any governmental body required in
connection with this Agreement and the Transactions hereunder and such
authorizations are in full force and effect and (iv) the execution,
delivery and performance of this Agreement and the Transactions hereunder
will not violate any law, ordinance, charter, by-law or rule applicable
to it or any agreement by which it is bound or by which any of its assets
are affected. On the date for any Transaction Buyer and Seller shall
each be deemed to repeat all the foregoing representations made by it.
11. Events of Default
In the event that (i) Seller fails to repurchase or Buyer fails to
transfer Purchased Securities upon demand for repurchase from either
Buyer or Seller, (ii) Seller or Buyer fails, after one business day's
notice, to comply with Paragraph 4 hereof, (iii) Buyer fails to make
payment to Seller pursuant to Paragraph 6 hereof, (iv) Seller fails to
comply with Paragraph 5 hereof, (v) an Act of Insolvency occurs with
respect to Seller or Buyer, (vi) any representation made by Seller or
Buyer shall have been incorrect or untrue in any material respect when
made or repeated or deemed to have been made or repeated, or (vii) Seller
or Buyer shall admit to the other its inability to, or its intention not
to, perform any of its obligations hereunder (each an "Event of
Default"):
(a) At the option of the nondefaulting party, exercised by written
notice to the defaulting party (which option shall be deemed to have been
exercised, even if no notice is given, immediately upon the occurrence of
any Act of Insolvency), Seller shall become obligated to repurchase, and
Buyer shall become obligated to sell, all Purchased Securities then owned
by Buyer for the Repurchase Price of such Purchased Securities.
(b) If Seller is the defaulting party and Buyer exercises or is
deemed to have exercised the option referred to in subparagraph (a) of
this Paragraph, (i) the Seller's obligations hereunder to repurchase all
Purchased Securities in such Transactions shall thereupon become
immediately due and payable, (ii) all Income paid after such exercise or
deemed exercise shall be retained by Buyer and applied to the aggregate
unpaid Repurchase Prices owed by Seller, and (iii) Seller shall
immediately deliver to Buyer any Purchased Securities subject to such
Transactions then in Seller's possession.
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(c) In all Transactions in which Buyer is the defaulting party,
upon tender by Seller of payment of the aggregate Repurchase Prices for
all such Transactions, Buyer's right, title and interest in all Purchased
Securities subject to such Transactions shall be deemed transferred to
Seller, and Buyer shall deliver all such Purchased Securities to Seller.
(d) After one business day's notice to the defaulting party (which
notice need not be given if an Act of Insolvency shall have occurred, and
which may be the notice given under subparagraph (a) of this Paragraph or
the notice referred to in clause (ii) of the first sentence of this
Paragraph), the nondefaulting party may:
(i) as to Transactions in which Seller is the defaulting
party, (A) immediately sell, in a recognized market at such price or
prices as Buyer may reasonably deem satisfactory, any or all Purchased
Securities subject to such Transactions and apply the proceeds thereof to
the aggregate unpaid Repurchase Prices and any other amounts owing by
Seller hereunder or (B) in its sole discretion elect, in lieu of selling
all or a portion of such Purchased Securities, to give Seller credit for
such Purchased Securities in an amount equal to the price therefor on
such date, obtained from a generally recognized source or the most recent
closing bid quotation from such a source, against the aggregate unpaid
Repurchase Prices and any other amounts owing by Seller hereunder; and
(ii) as to Transactions in which Buyer is the defaulting
party, (A) purchase securities ("Replacement Securities") of the same
class and amount as any Purchased Securities that are not delivered by
Buyer to Seller as required hereunder or (B) in its sole discretion
elect, in lieu of purchasing Replacement Securities, to be deemed to have
purchased Replacement Securities at the price therefor on such date,
obtained from a generally recognized source or the most recent closing
bid quotation from such a source.
(e) As to Transactions in which Buyer is the defaulting party,
Buyer shall be liable to Seller (i) with respect to Purchased Securities
(other than Additional Purchased Securities), for any excess of the price
paid (or deemed paid) by Seller for Replacement Securities therefor over
the Repurchase Price for such Purchased Securities and (ii) with respect
to Additional Purchased Securities, for the price paid (or deemed paid)
by Seller for the Replacement Securities therefor.
(g) The defaulting party shall be liable to the nondefaulting party
for the amount of all reasonable legal or other expenses incurred by the
nondefaulting party in connection with or as a consequence of an Event of
Default.
(h) The nondefaulting party shall have, in addition to its rights
hereunder, any rights otherwise available to it under any other agreement
or applicable law.
12. Single Agreement
Buyer and Seller acknowledge that, and have entered hereinto and
will enter into each Transaction hereunder in consideration of and in
reliance upon the fact that, all Transactions hereunder constitute a
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single business and contractual relationship and have been made in
consideration of each other. Accordingly, each of Buyer and Seller
agrees (i) to perform all of its obligations in respect of each
Transaction hereunder, and that a default in the performance of any such
obligations shall constitute a default by it in respect of all
Transactions hereunder, (ii) that each of them shall be entitled to set
off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions
hereunder and (iii) that payments, deliveries and other transfers made by
either of them in respect of any Transaction shall be deemed to have been
made in consideration of payments, deliveries and other transfers in
respect of any other Transactions hereunder, and the obligations to make
any such payments, deliveries and other transfers may be applied against
each other and netted.
13. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between the
parties containing general terms and conditions for repurchase
transactions. Each provision and agreement and agreement herein shall be
treated as separate and independent from any other provision or agreement
herein and shall be enforceable notwithstanding the unenforceability of
any such other provision or agreement.
14. Non-assignability; Termination
The rights and obligations of the parties under this Agreement and
under any Transactions shall not be assigned by either party without the
prior written consent of the other party. Subject to the foregoing, this
Agreement and any Transactions shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
This Agreement may be canceled by either party upon giving written notice
to the other, except that this Agreement shall, notwithstanding such
notice, remain applicable to any Transactions then outstanding.
15. Governing Law
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts without giving effect to the conflict of law principles
thereof.
16. No Waivers, Etc.
No express or implied waiver of any Event of Default by either party
shall constitute a waiver of any other Event of Default and no exercise
of any remedy hereunder by any party shall constitute a wavier of its
right to exercise any other remedy hereunder. No modification or waiver
of any provision of this Agreement and no consent by any party to a
departure herefrom shall be effective unless and until such shall be in
writing and duly executed by both of the parties hereto.
17. Intent
(a) The parties recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of the
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United States Code, as amended (except insofar as the type of Securities
subject to such Transaction or the term of such Transaction would render
such definition inapplicable), and a "securities contract" as that term
is defined in Section 741 of Title 11 of the United States Code, as
amended.
(b) It is understood that either party's right to liquidate
Securities delivered to it in connection with Transactions hereunder or
to exercise any other remedies pursuant to Paragraph 11 hereof, is a
contractual right to liquidate such Transaction as described in Sections
555 and 559 of Title 11 of the United States Code, as amended.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
December 28, 1996.
THERMO ELECTRON CORPORATION THERMOSPECTRA CORPORATION
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
Title:Treasurer Title:President