Exhibit 10.25
Loan No. ▇▇▇-▇▇▇▇-▇▇▇
PROMISSORY NOTE
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$45,000,000.00 December 19, 2001
FOR VALUE RECEIVED, TERADYNE, INC., a Massachusetts corporation
("BORROWER"), promises to pay to the order of GENERAL ELECTRIC CAPITAL BUSINESS
ASSET FUNDING CORPORATION ("GE CAPITAL") at GE CAPITAL's office at ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Middle Market
Risk/Operations, or at such other address as the holder hereof may from time to
time designate in writing, the principal sum of FORTY-FIVE MILLION AND NO/100
DOLLARS ($45,000,000.00) together with interest from the date the proceeds of
the loan (the "Loan") evidenced by this Promissory Note (this "Note") are
initially disbursed until maturity on the principal balance from time to time
remaining unpaid hereon at the rate of 7.5% per annum (computed on the basis of
a 360-day year of twelve (12) consecutive thirty (30)-day months) in
installments as follows: (i) interest only in advance at the rate of $9,375.00
per day shall be due and payable on the date the proceeds of the Loan are
initially disbursed to or for the benefit of BORROWER (including, without
limitation, disbursement into an escrow for the benefit of BORROWER) for the
period beginning on the date of such disbursement and ending on December 31,
2001; (ii) fifty-nine (59) installments of principal and interest in the amount
of $362,516.94 each shall be payable commencing on February 1, 2002, and
continuing on the first day of each and every succeeding month until and
including December 1, 2006, and (iii) on January 1, 2007 (the "Maturity Date"),
all then unpaid principal and interest hereon shall be due and payable.
If any payment shall not be paid when due (excluding the payment due on
the Maturity Date or upon acceleration) and shall remain unpaid for ten (10)
days, BORROWER shall pay an additional charge equal to five percent (5.00%) of
the delinquent payment or the highest additional charge permitted by law,
whichever is less.
BORROWER recognizes that its default in making the payments as provided
for in this Note, or in the Deed of Trust securing this Note or in any of the
other documents executed or delivered in connection with the Loan, when due, or
by otherwise causing an event of default to occur under this Note, under the
Deed of Trust or under any document executed or delivered in connection with the
Loan, will require GE CAPITAL to incur additional expense in servicing the Loan,
in loss to GE CAPITAL of the use of the money due and in frustration to GE
CAPITAL in meeting its other financial and loan commitments and that damages
caused thereby would be extremely difficult and impractical to ascertain.
▇▇▇▇▇▇▇▇ agrees that an amount equal to such additional charge is a reasonable
estimate of the damage to GE CAPITAL in the event of late payment or any such
default regardless of whether or not there has been an acceleration of the Loan.
If for any reason any court of competent jurisdiction should determine that the
additional charge provided for above is unenforceable, such additional charge
shall be in an amount equal to the highest additional charge allowed by such
court pursuant to law.
Upon not less than thirty (30) days advance written notice to GE
CAPITAL and upon payment of the Prepayment Premium, BORROWER shall have the
right to prepay all, but not
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less than all, of the outstanding balance of this Note on any regularly
scheduled principal and interest payment date. The Prepayment Premium shall be
the sum of the Base Premium and the Variable Premium. The "Base Premium" shall
be determined by multiplying the principal amount to be repaid by the applicable
Base Premium Factor set forth below. The "Variable Premium" determined by (i)
calculating the decrease (expressed in basis points) in the current weekly
average yield of Five (5)-year Treasury Constant Maturities (as published in
Federal Reserve Statistical Release H.15 [519]) (the "Index") from Friday,
November 16, 2001, to the Friday immediately preceding the week in which the
prepayment is made, (ii) dividing the decrease by 100, (iii) multiplying the
result by the following described applicable premium factor (the "Premium
Factor"), and (iv) multiplying the product by the principal balance to be
prepaid. If the Index is unchanged or has increased from Friday, November 16,
2001, to the Friday immediately preceding the prepayment date, no Variable
Premium shall be due. The Premium Factor shall be the amount shown on the
following chart for the month in which prepayment occurs:
Number of Months Base Variable
---------------- ---- --------
Remaining Years Premium Factor Premium Factor
--------- ----- -------------- --------------
60 - 49 (5) .05 .044
48 - 37 (4) .04 .037
36 - 25 (3) .03 .030
24 - 13 (2) .02 .022
12 - 1 (1) .01 .014
If the Federal Reserve Board ceases to publish the Index, then the
decrease in the weekly average yield of five (5)-year U.S. Treasury Constant
Maturities will be determined from another comparable source designated by GE
CAPITAL.
If GE CAPITAL at any time accelerates this Note after an Event of
Default (defined below), then BORROWER shall be obligated to pay the Prepayment
Premium in accordance with the foregoing schedule. The Prepayment Premium shall
not be payable with respect to condemnation awards or insurance proceeds from
fire or other casualty which GE CAPITAL applies to prepayment, nor with respect
to ▇▇▇▇▇▇▇▇'s prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred and remains
uncured. BORROWER expressly acknowledges that (A) the Prepayment Premium is not
a penalty but is intended solely to compensate GE CAPITAL for the loss of its
bargain and the reimbursement of internal expenses and administrative fees and
expenses incurred by GE CAPITAL, (B) such Prepayment Premium, as such Prepayment
Premium may be imposed pursuant to the terms of this Note and of the Deed of
Trust, is reasonable in amount, (C) the Prepayment Premium, as such Prepayment
Premium may be imposed pursuant to the terms of this Note and of the Deed of
Trust, shall be paid without prejudice to the right of GE CAPITAL to collect any
other amounts provided to be paid under this Note or under the Deed of Trust or
any other document executed or delivered in connection with the Loan, (D) any
tender of payment prior to the payment date therefor as set forth in this Note
for any reason whatsoever of all or any part of the indebtedness evidenced by
this Note shall include such Prepayment Premium, (E) GE CAPITAL shall be
entitled to bid all or a portion of such Prepayment Premium at any foreclosure
sale under the Deed of Trust, (F) if BORROWER defaults under this Note, under
the Deed of Trust or under any of the documents executed or delivered in
connection with the Loan, GE CAPITAL shall be entitled to actual damages for the
detriment caused thereby, but
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that it is extremely difficult and impractical to ascertain the extent of such
damages and that such Prepayment Premium is a reasonable estimate of such
damages, and (G) nothing contained in this Note, in the Deed of Trust, or in any
of the other documents executed or delivered in connection with the Loan, shall
be deemed to mean that BORROWER has any right to pay all or any part of the
indebtedness evidenced by this Note prior to the payment date thereof as set
forth in this Note except for the privilege expressly reserved to so prepay as
set forth in this Note.
BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT GE CAPITAL WOULD NOT LEND
TO BORROWER THE LOAN WITHOUT BORROWER'S AGREEMENT, AS SET FORTH ABOVE, TO PAY GE
CAPITAL THE PREPAYMENT PREMIUM, INCLUDING WITHOUT LIMITATION UPON A DEFAULT
ARISING FROM THE CONVEYANCE OF ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY
ENCUMBERED BY THE DEED OF TRUST, AND ▇▇▇▇▇▇▇▇ HAS CAUSED THOSE PERSONS SIGNING
THIS NOTE ON ▇▇▇▇▇▇▇▇'S BEHALF TO SEPARATELY SIGN THE AGREEMENT CONTAINED IN THE
TWO PRECEDING PARAGRAPHS AND THIS PARAGRAPH, IN COMPLIANCE WITH SECTION 2954.10
OF THE CALIFORNIA CIVIL CODE, BY PLACING THEIR SIGNATURES BELOW:
BORROWER:
TERADYNE, INC.,
a Massachusetts corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: V.P. and Treasurer
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The Loan is secured, in part, by five (5) certain Commercial Deeds of
Trust, Security Agreements, Assignments of Leases and Rents and Fixture Filings
(collectively, the "Deed of Trust") covering the real property and other assets
(the "Property") described therein, and by certain other documents executed and
delivered in connection with the Loan (the Deed of Trust and such other
documents are collectively called the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Deed of Trust:
a. Failure of BORROWER to make any payment of principal,
interest, or any Prepayment Premium due under this Note when due, and such
failure shall continue for a period of ten (10) days after written notice is
given to BORROWER by GE CAPITAL specifying such failure (provided that no notice
shall be given of any failure by BORROWER to pay all amounts which become due
hereunder on the Maturity Date); or
b. Failure of BORROWER within the time required by the
Deed of Trust to make any payment for taxes, insurance or for reserves for such
payments, or any other payment necessary to prevent the filing of any lien, and
such failure shall continue for a period of ten (10) days after written notice
is given to BORROWER by GE CAPITAL specifying such failure; or
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c. Failure of BORROWER to observe or perform any
obligations of BORROWER to GE CAPITAL on or with respect to any transactions,
debts, undertakings or agreements other than the transaction evidenced by this
Note; or
d. The Property or any part or interest in the Property
is transferred in any manner whatsoever without the prior written consent of GE
CAPITAL; or
e. If any lease agreement covering any portion of the
Property is executed by Borrower without GE CAPITAL's prior written consent; or
f. Filing by BORROWER of a voluntary petition in
bankruptcy or filing by BORROWER of any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, or similar relief for itself under any present or future federal,
state or other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors, or the seeking or consenting to by BORROWER of the
appointment of any trustee, receiver, custodian, conservator or liquidator for
BORROWER, any part of the Property, or any of the income or rents of the
Property, or the making by BORROWER of any general assignment for the benefit of
creditors, or the inability of or failure of BORROWER to pay its debts generally
as they become due, or the insolvency on a balance sheet basis of BORROWER, or
the imposition of a lien upon the Property which is not discharged in the manner
permitted by the Deed of Trust, or the giving of notice by ▇▇▇▇▇▇▇▇ to any
governmental body of insolvency or suspension of operations; or
g. Filing of a petition against BORROWER seeking any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debts, or the appointment
of any trustee, receiver, custodian, conservator or liquidator of BORROWER, of
any part of the Property or of any of the income or rents of the Property,
unless such petition shall be dismissed within ninety (90) days after such
filing, but in any event prior to the entry of an order, judgment or decree
approving such petition; or
h. The commencement of any proceeding for the
dissolution or termination of BORROWER voluntarily, involuntarily, or by
operation of law, if the same is not dismissed within ninety (90) days after the
date on which it is commenced; or
i. Failure of BORROWER to observe or perform any other
obligation under the Deed of Trust or any of the Loan Documents when such
observance or performance is due, and such failure shall continue beyond the
applicable cure period set forth in the Deed of Trust or the Loan Documents, or
if the default cannot be cured within such applicable cure period, if BORROWER
fails within such time to commence and pursue curative action with reasonable
diligence or fails at any time after expiration of such applicable cure period
to continue with reasonable diligence all necessary curative actions. No notice
of default and no opportunity to cure shall be required if during the prior
twelve (12) months GE CAPITAL has already sent a notice to BORROWER concerning
default in performance of the same obligation.
Upon the occurrence of any Event of Default, GE CAPITAL shall have the
option to declare the entire amount of principal and interest due under this
Note immediately due and payable without additional notice or demand, and GE
CAPITAL may exercise any of its rights
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under this Note, under the Deed of Trust and under the Loan Documents. If the
entire unpaid principal balance of this Note is not paid on the Maturity Date,
whether the Maturity Date occurs by acceleration as described in the immediately
preceding sentence or otherwise, the outstanding principal balance of this Note
shall thereafter bear interest at the rate of five percent (5.00%) per annum
above the prime interest rate in effect from time to time as published by the
Wall Street Journal (or any successor thereto), or fifteen percent (15.00%) per
annum, whichever is higher, provided that such interest rate shall not exceed
the maximum interest rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall be
the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection,
▇▇▇▇▇▇▇▇ agrees to pay reasonable attorneys' fees and costs incurred by GE
CAPITAL in connection therewith, and in the event suit or action is instituted
to enforce or interpret this Note (including without limitation efforts to
modify or vacate any automatic stay or injunction), the prevailing party shall
be entitled to recover all expenses reasonably incurred at, before or after
trial and on appeal, whether or not taxable as costs, or in any bankruptcy
proceeding, or in connection with post-judgment collection efforts, including,
without limitation, attorneys' fees, witness fees (expert and otherwise),
deposition costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the State of California applicable to contracts made and to be performed
therein (excluding choice-of-law principles). BORROWER hereby irrevocably
submits to the jurisdiction of any state or federal court sitting in California
in any action or proceeding brought to enforce or otherwise arising out of or
relating to this Note, and hereby waives any objection to venue in any such
court and any claim that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to the Maturity Date, all in the
events, on the terms, and in the manner provided for in the Deed of Trust.
BORROWER and all sureties, endorsers, guarantors and other parties now
or hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
Note; (ii) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that GE CAPITAL shall not be
required to first institute suit or exhaust its remedies hereon against BORROWER
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement by GE CAPITAL with any person now or hereafter liable
for the payment of this Note, even if BORROWER is not a party to such agreement.
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All agreements between BORROWER and GE CAPITAL, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the Maturity Date of
this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to GE CAPITAL exceed the maximum amount permissible
under the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to GE CAPITAL in excess of the maximum amount permissible
under applicable law, the interest payable to GE CAPITAL shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance GE
CAPITAL shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the reduction of the
principal of this Note and not to the payment of interest, or if such excessive
amount of interest exceeds the unpaid balance of principal of this Note, such
excess shall be refunded to BORROWER. All interest paid or agreed to be paid to
GE CAPITAL shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full period (including any
renewal or extension) until payment in full of the principal so that the
interest accruing under this Note for such full period shall not exceed the
maximum amount permissible under applicable law. GE CAPITAL expressly disavows
any intent to contract for, charge or receive interest in an amount which
exceeds the maximum amount permissible under applicable law. This paragraph
shall control all agreements between BORROWER and GE CAPITAL.
[SIGNATURE PAGE FOLLOWS]
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IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS NOTE
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN
WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES
NOT CONTAINED IN THIS NOTE MAY BE LEGALLY ENFORCED. YOU MAY
CHANGE THE TERMS OF THIS NOTE ONLY BY ANOTHER WRITTEN
AGREEMENT.
BORROWER:
TERADYNE, INC.,
a Massachusetts corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: V.P. and Treasurer
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