THERMO PROCESS SYSTEMS INC.
Secured Promissory Note
Waltham, Massachusetts
$28,000,000 As of January 29, 1995
For value received, THERMO PROCESS SYSTEMS INC., a Delaware
corporation (the "Company"), hereby promises to pay to the order
of Nord Est S.A., or assigns (hereinafter referred to as the
"Payee"), the principal sum of twenty-eight million dollars
($28,000,000) or such part thereof as then remains unpaid,
without interest, except as set forth below, and net of any
withholding obligation that may apply under applicable law. The
principal amount hereof shall be payable $13,935,000 on February
15, 1998 and $14,065,000 on May 15, 1998. Principal and
interest, if any, shall be payable in lawful money of the United
States of America, in immediately available funds, at the
principal office of the Payee or at such other place as the Payee
may designate from time to time in writing to the Company. This
Note may be prepaid at any time or from time to time, in whole or
in part, without any premium or penalty.
This Note is the Note referred to in that certain Stock
Purchase and Sale Agreement effective as of the date hereof among
Payee, the Company and certain members of the management of Elson
T. Killam Associates Inc., a New Jersey corporation (the
"Agreement"), and is secured by the deposit of U.S. Treasury
securities as provided for in that certain Pledge Agreement
effective as of the date hereof between the Company and the
Payee.
The then unpaid principal amount of this Note shall be and
become immediately due and payable without notice or demand, at
the option of the Payee, upon the occurrence of any of the
following events (an "Event of Default"):
(a) the failure of the Company to pay when due the
principal amount hereof;
(b) any representation or warranty made to the Payee
by the Company in the Agreement shall prove to have been
false or misleading in any material respect as of the date
hereof;
(c) the failure of the Company to pay its debts as
they become due, the insolvency of the Company, the filing
against the Company of any petition under the U.S.
Bankruptcy Code (or the filing of any similar petition under
the insolvency law of any jurisdiction) which filing is not
PAGE
dismissed within 60 days thereafter, the filing by the
Company of any petition under the U.S. Bankruptcy Code (or
the filing by the Company of any similar petition under the
insolvency law of any jurisdiction), or the making by the
Company of an assignment or trust mortgage for the benefit
of creditors or the appointment of a receiver, custodian or
similar agent with respect to, or the taking by any such
person of possession of, any property of the Company;
(d) the sale by the Company of all or substantially
all of its assets (other than to Thermo Electron Corporation
("Thermo Electron") or to a subsidiary of Thermo Electron in
a transaction in which Thermo Electron guarantees the
payment of this Note);
(e) the merger or consolidation of the Company with or
into any other corporation (other than Thermo Electron or a
subsidiary of Thermo Electron) in a transaction in which the
Company is not the surviving entity;
(f) the issuance of any writ of attachment, by trustee
process or otherwise, or any restraining order or injunction
not removed, repealed or dismissed within 60 days of
issuance, against or affecting the person or property of the
Company or any liability or obligation of the Company to the
holder hereof; and
(f) the suspension of the transaction of the usual
business of the Company.
Any amount that remains unpaid when due under this Note
shall bear interest, from and after such due date through the
date on which such amount is paid, at a rate per annum equal to
the rate of interest announced from time to time by The First
National Bank of Boston at its head office in Boston,
Massachusetts as its "base rate" plus 3%. In case any payment
herein provided for shall not be paid when due, the Company
further promises to pay all costs of collection, including all
reasonable attorneys' fees.
No delay or omission on the part of the Payee in exercising
any right hereunder shall operate as a waiver of such right or of
any other right of the Payee, nor shall any delay, omission or
waiver on any one occasion be deemed a bar to or waiver of the
same or any other right on any future occasion. The Company
hereby waives presentment, demand, notice of prepayment, protest
and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this
Note. The Company hereby assents to any indulgence and any
extension of time for payment of any indebtedness evidenced
hereby granted or permitted by the Payee. The Company waives
trial by jury and the right to interpose any counterclaim or
setoff of any kind whatsoever.
PAGE
The Company hereby irrevocably and unconditionally consents
to submit to the exclusive jurisdiction of the courts of the
State of New Jersey and of the United States of America located
in or having jurisdiction over Millburn, New Jersey, for any
actions, suits or proceedings arising out of or relating to this
Note (and agrees not to commence any action, suit or proceeding
relating thereto except in such courts), and further agrees that
service of any process, summons, notice or document in accordance
with the provisions of Section 6.1 of the Agreement shall be
effective service of process for any action, suit or proceeding
brought against the Company in any such court. The Company
hereby irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit or proceeding arising out
of this Note in the courts of the State of New Jersey or of the
United States of America located in or having jurisdiction over
Millburn, New Jersey, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
This Note shall be governed by and construed in accordance
with, the laws of the Commonwealth of Massachusetts and shall
have the effect of a sealed instrument.
THERMO PROCESS SYSTEMS INC.
By: /s/ John P. Appleton
Printed Name: John P. Appleton
Title: President
[Corporate Seal]
Attest:
/s/ Sandra L. Lambert
Sandra L. Lambert