Exhibit 10.7
[GRAPHIC OMITTED]
Fixed Rate Promissory Note
(Multiple Loans)
New York, New York
May 27, 2005
For value received, the undersigned (the "Borrower") unconditionally
promises to pay to the order of JPMORGAN CHASE BANK, NATIONAL ASSOCIATION (the
"Bank"), at its office located at 270 Park Avenue, New York, New York 10017, the
principal amount of each loan made by the Bank to the Borrower and outstanding
under this Note on the maturity date(s) as evidenced by the Bank's records as
provided in the fifth paragraph hereof.
The Borrower promises to pay interest on the unpaid balance of the
principal amount of each such loan for each day outstanding at a fixed rate per
annum equal to the rate as evidenced in the Bank's records as provided in the
fifth paragraph hereof; provided that principal and (to the extent permitted by
law) interest not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest for each day overdue at a variable rate per annum
equal to: (a) the higher of: (i) the Federal Funds Rate plus 1/2 of 1% and (ii)
the Prime Rate; plus (b) 2%. "Federal Funds Rate" means, for any day, the rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions as published by the Federal Reserve Bank of New York for such day
(or for any day that is not a banking day in New York City, for the immediately
preceding banking day). "Prime Rate" means, for any day, that rate of interest
from time to time announced by the Bank at its principal office as its prime
rate, as in effect for such day in accordance with announcements by the Bank of
changes in such rate. Interest shall be calculated on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day but
excluding the last day). Interest on each loan shall be due and payable at the
maturity thereof (and quarterly, if requested by the Bank); provided, however,
that interest accruing on any amount not paid when due shall be payable upon
demand. In no case shall the interest on this Note exceed the maximum amount
which the Bank may charge or collect under applicable law.
Each loan hereunder may be prepaid in whole or in part, provided that
accrued and unpaid interest is paid on the date of such prepayment, together
with any compensation payable in accordance with the following. If there is any
payment (whether by voluntary prepayment, acceleration or otherwise) of a loan
under this Note on a date other than the scheduled maturity date set forth in
the first paragraph hereof, then the Borrower will pay the Bank on demand such
amount as will be sufficient in the reasonable opinion of the Bank to compensate
it for any loss, cost or expense which the Bank determines is attributable
thereto. Without limiting the foregoing, such compensation shall include an
amount equal to redeployment costs or expenses which the Bank determines are
attributable thereto and any costs, expenses or compensation payable to lenders
holding an interest in the loan.
All payments under this Note shall be made without set-off or
counterclaim in lawful money of the United States of America and in immediately
available funds at the Bank's principal office specified above. If any loan
evidenced by this Note becomes due and payable on a day which is not a banking
day in New York City, the maturity of such loan shall be extended to the next
succeeding banking day, and interest shall be payable for such extension on such
loan at the rate of interest specified in this Note. The Bank may (but shall not
be obligated to) debit the amount of any payment which is not made when due to
any deposit account of the Borrower with the Bank.
The date, amount, rate of interest and maturity date of each loan under
this Note and each payment of principal, loan(s) to which such principal is
applied (which Borrower may designate in writing in advance or at the time of
such payment provided Borrower is not then in default or would not thereby be in
default in which case such application shall be at the discretion of the Bank)
and the outstanding principal balance of loans shall be recorded by the Bank on
its books and, at the discretion of the Bank prior to any transfer of this Note
or at any other time, may be endorsed by the Bank on a schedule. Any such
endorsement shall be conclusive in the absence of manifest error.
If any of the following events of default shall occur and be
continuing: (a) the Borrower fails to pay any liability to the Bank under this
Note when due and payable; (b) the Borrower shall breach any material covenant
in this Note or other document delivered in connection with this Note (this Note
and any such document being a "Facility Document") or any material
representation or warranty in any Facility Document or any certificate, opinion,
financial or other statement delivered in connection with a Facility Document
shall prove to be false or inaccurate in any material respect when made; (c) the
Borrower shall fail to pay any other Indebtedness (as that term is currently
defined in the credit agreement identified in the immediately following clause)
of Borrower in aggregate principal amount in excess of $10,000,000 when due and
payable beyond any applicable grace period, or one or more judgments in the
aggregate amount of $10,000,000 or more (not fully covered by insurance as to
which the relevant insurance company has acknowledged coverage) are entered
against the Borrower which have not been vacated, discharged, satisfied, stayed
or bonded pending appeal within 30 days from the entry thereof; (d) an Event of
Default shall occur under the Five Year Credit Agreement dated as of December
17, 2004 among the Borrower and the several lenders from time to time parties
thereto (as same may be amended, supplemented, renewed or restated from time to
time) and, so long as the Bank is a party to such credit agreement, such default
shall not have been waived by the lenders party thereto, provided that if such
credit agreement is repaid, expires or terminates, or the Bank ceases to be a
party thereto, this clause shall be based upon the terms of such credit
agreement as it existed immediately prior to such event; (e) the Borrower shall
become insolvent (however evidenced) or shall seek any relief under any
bankruptcy or similar law of any jurisdiction (or any person shall seek such
relief against the Borrower, provided that if Borrower promptly contests such
proceeding, it shall not be an event of default unless (A) an order for relief
or similar adjudication is entered, or (B) such proceeding remains pending 60
days of the commencement thereof); (f) any Facility Document shall at any time
cease to be in full force and effect or its validity or enforceability shall be
disputed or contested by the Borrower or any person controlled by the Borrower;
THEN, if the Bank shall elect by notice to the Borrower, the unpaid principal
amount of this Note, together with interest and any other amounts due hereunder
shall become forthwith due and payable; provided that in the case of an event of
default under (e) above, such amounts shall automatically become due and payable
without any notice or other action by the Bank.
The Borrower waives presentment, notice of dishonor, protest and any
other formality with respect to this Note, other than notices expressly provided
for herein.
The Borrower shall reimburse the Bank on demand for all reasonable
costs, expenses and charges (including, without limitation, reasonable fees and
charges of external counsel for the Bank) in connection with the enforcement of
this Note after default.
This Note shall be binding on the Borrower and its successors and
assigns and shall inure to the benefit of the Bank and its successors and
assigns; provided that the Borrower may not delegate any obligations hereunder
without the prior written consent of the Bank.
THIS NOTE SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. THE
BORROWER CONSENTS TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF THE STATE OR
FEDERAL COURTS LOCATED IN THE CITY OF NEW YORK. SERVICE OF PROCESS BY THE BANK
IN CONNECTION WITH ANY SUCH DISPUTE SHALL BE BINDING ON THE BORROWER IF SENT TO
THE BORROWER BY REGISTERED MAIL AT THE ADDRESS SPECIFIED BELOW. THE BORROWER
WAIVES ANY RIGHT THE BORROWER MAY HAVE TO JURY TRIAL.
Address:
Thermo Electron Corporation
81 Wyman Street
Waltham, MA 02454
Attn.: Jeffrey Botte
By: /s/ Kenneth J. Apicerno
-----------------------
Name: Kenneth J. Apicerno
Title: Treasurer
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