THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT, AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD,
PLEDGED, MORTGAGED, HYPOTHECATED OR OTHERWISE TRANSFERRED (1) WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING THESE SECURITIES OR (2)
UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THERMO INSTRUMENT SYSTEMS INC.
Amended and Restated Promissory Note Due February 28, 2000
Waltham, Massachusetts
August 27, 1999
For value received, Thermo Instrument Systems Inc., a Delaware corporation
(the "Company"), hereby promises to pay to Thermo Electron Corporation
(hereinafter referred to as the "Payee"), or registered assigns, on February 28,
2000, the principal sum of one hundred fifty million dollars ($150,000,000) or
such part thereof as then remains unpaid to pay interest from the date hereof on
the whole amount of said principal sum remaining from time to time unpaid at a
rate per annum equal to the Dealer Commercial Paper Rate for 30-day maturities
as reported in The Wall Street Journal on the first business day of each fiscal
month of the Company (the "DCP Rate") plus one-hundred fifty (150) basis points.
If, however, one or more of the Company's majority-owned U.S. subsidiaries (i.e.
not wholly-owned) is participating in the cash management arrangement with
Payee, then the rate payable on the Company's outstanding principal balance
shall be calculated as follows: If the aggregate amount of the Company's
majority-owned U.S. subsidiaries' cash balance under the cash management
arrangement ("Majority-Owned Excess Cash") equals or exceeds the Company's
outstanding principal balance, then the Company shall pay interest on the
aggregate unpaid principal amount hereunder at a rate per annum equal to the DCP
Rate plus fifty (50) basis points. If the aggregate amount of the Majority-Owned
Excess Cash is less than the Company's outstanding principal balance, then (A)
the Company shall pay interest at a rate per annum equal to the DCP Rate plus
fifty (50) basis points on that portion of the unpaid principal amount equal to
the Majority-Owned Excess Cash, and (B) the Company shall pay interest at a rate
per annum equal to the DCP Rate plus one hundred fifty (150) basis points on
that portion of the unpaid principal amount equal to (i) the Company's
outstanding principal balance, minus (ii) the Majority-Owned Excess Cash. Each
of the interest rates set forth in the prior sentences shall be adjusted on the
second business day of each fiscal month of the Company and shall be in effect
for the entirety of such fiscal month. Interest is payable in arrears on the
first business day of each fiscal month of the Company, until all amounts
outstanding are paid in full. Overdue principal and interest shall bear interest
at a rate per annum equal to the rate of interest published from time to time in
The Wall Street Journal as the "prime rate" plus one percent (1%). Principal and
all accrued but unpaid interest shall be repaid on February 28, 2000. Principal
and interest 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 legal holder may designate from time to time in writing to
the Company. Interest shall be computed on an actual 360-day basis. This Note
may be prepaid at any time or from time to time, in whole or in part, without
any premium or penalty. All prepayments shall be applied first to accrued
interest and then to principal.
The then unpaid principal amount of, and interest outstanding on, this
Note shall be and become immediately due and payable without notice or demand,
at the option of the holder hereof, upon the occurrence of any of the following
events:
(a) the failure of the Company to pay any amount due hereunder
within ten (10) days of the date when due;
(b) any representation, warranty or statement made or furnished to
the Payee by the Company in connection with this Note or the transaction
from which it arises shall prove to have been false or misleading in any
material respect as of the date when made or furnished;
(c) the failure of the Company to pay its debts as they become due,
the insolvency of the Company, the filing by or 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), 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;
(e) the merger or consolidation of the Company with or into any
other corporation 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 thirty (30) 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
(g) the suspension of the transaction of the usual business of the
Company.
Upon surrender of this Note for transfer or exchange, a new Note or new
Notes of the same tenor dated the date to which interest has been paid on the
surrendered Note and in an aggregate principal amount equal to the unpaid
principal amount of the Note so surrendered will be issued to, and registered in
the name of, the transferee or transferees. The Company may treat the person in
whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes.
In case any payment herein provided for shall not be paid when due, the
Company further promises to pay all cost 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 undersigned hereby assents
to any indulgence and any extension of time for payment of any indebtedness
evidenced hereby granted or permitted by the Payee.
This Note amends and restates in its entirety that certain promissory note
issued by the Company to Thermo Electron Corporation dated March 3, 1999.
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 INSTRUMENT SYSTEMS INC.
By: /s/Earl R. Lewis
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Earl R. Lewis
President and CEO
[Corporate Seal]
Attest:
/s/Sandra L. Lambert
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Sandra L. Lambert
Secretary