EXHIBIT 2.2
This Note and the indebtedness evidenced hereby
are subordinate in the manner and extent set forth in
that certain Subordination Agreement dated as of
October 10, 1997 among Thermo TerraTech Inc., Comerica
Bank and Holcroft L.L.C. to the indebtedness owed by
Holcroft L.L.C. to Comerica Bank, and each holder of
this Note, by its acceptance hereof, shall be bound by
the provisions of the Subordination Agreement.
SECURED PROMISSORY NOTE
$2,218,000.00 October 10, 1997
This Secured Promissory Note (hereinafter "this Note") is
made as of the date stated hereinabove by HOLCROFT L.L.C., a
Delaware limited liability company ("Borrower"), with a mailing
address at 12068 Market Street, Livonia, Michigan 48150, to the
order of THERMO TERRATECH INC., a Delaware corporation
("Lender"), with an office at 81 Wyman Street, Waltham,
Massachusetts 02254-9046.
I
PAYMENT
For Value Received, Borrower hereby irrevocably and
unconditionally promises to pay to the order of Lender, at
Lender's office at the address stated hereinabove or such other
place as Lender may from time to time designate in writing to
Borrower, the principal amount of TWO MILLION TWO HUNDRED
EIGHTEEN THOUSAND DOLLARS AND NO/100THS ($2,218,000.00) (the
"Loan") or so much thereof as may now or hereafter be disbursed
by Lender to or for the benefit of Borrower, together with
interest as provided hereinbelow, all in lawful money of the
United States of America, as follows:
1.1 Interest in Installments. Interest only on the unpaid
principal balance of the Loan from time to time, shall accrue at
an annual interest rate (the "Interest Rate") equal to nine and
one-quarter percent (9.25%), from and including the date hereof
until October 10, 2002 (the "Maturity Date"). Interest shall be
due and payable quarterly in arrears commencing on January 1,
1998. Interest hereunder shall be calculated on the basis of the
actual number of days elapsed during the period for which
interest is being charged hereunder, predicated on a year
consisting of three hundred and sixty-five (365) days.
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1.2 Payments. The principal balance of the Loan shall be
payable in 4 consecutive annual installments of $443,600 on each
annual anniversary of the date hereof commencing with the year
beginning October 10, 1998. The remaining principal balance, as
well as all accrued and unpaid interest, shall be due and payable
on the Maturity Date.
1.3 Method of Payment. On the date a payment is due under
Paragraphs 1.1 or 1.2 above, Borrower shall pay the amount of
such payment to Lender in immediately available funds at the
address of Lender specified above.
1.4 Application of Payments Prior to Default. All monies
paid by Borrower to Lender shall be applied in the following
order of priority: (a) first, toward payment of interest which
has accrued on the outstanding principal balance of the Loan and
which is due and payable; and (b) last, toward payment of the
outstanding principal balance of the Loan.
1.5 Prepayments. This Note may be prepaid, in whole or in
part, at any time, without premium or penalty. Any payment made
under this paragraph shall be applied as set forth in Paragraph
1.4.
1.6 Certain Waivers. The Borrower 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 Borrower
hereby assents to any extension of time for payment of any
indebtedness evidenced hereby granted or permitted by the Lender.
The Borrower hereby waives the right to a jury trial and waives
the right to exercise any counterclaim or setoff of any kind
whatsoever.
II
SECURITY, DEFAULTS, AND REMEDIES
2.1 Security for Payment. Payment of this Note is secured
by a Security Agreement dated of even date herewith between
Borrower and Lender (the "Security Agreement") (this Note, the
Security Agreement and all other documents and instruments
executed in connection with the Note or the Security Agreement
hereinafter are referred to as the "Loan Documents").
2.2 Events of Default. Any event of default shall exist
upon the occurrence of any of the following events (an "Event of
Default"):
(a) The failure of the Borrower to pay any sum due and
payable hereunder, including without limitation, interest or
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principal or both and either as an installment or on the
Maturity Date;
(b) The failure of the Borrower to observe or perform
any of its agreements, obligations, warranties or
representations in that certain Asset Purchase Agreement of
even date herewith between the Borrower and the Lender (the
"Purchase Agreement") or in any agreement with the Lender or
with any other person or organization for borrowed money,
including all obligations to Comerica Bank;
(c) Any warranty, representation, or statement made or
furnished to the Lender by or on behalf of the Borrower in
the Purchase Agreement proves to have been false in any
material respect when made;
(d) The liquidation, termination of existence,
dissolution, insolvency or business failure of the Borrower,
or the appointment of a receiver or custodian for the
Borrower or any part of its property if such appointment is
not terminated or dismissed within 30 days;
(e) The sale by the Borrower of all or substantially
all of its assets;
(f) The merger or consolidation of the Borrower with
or into any other corporation in a transaction in which the
Borrower is not the surviving entity;
(g) The institution against the Borrower of any
proceedings under the United States Bankruptcy Code or any
other federal or state bankruptcy, reorganization,
receivership, insolvency or other similar law affecting the
rights of creditors, generally, which proceeding is not
dismissed within 30 days after filing of such proceeding;
(h) The institution by the Borrower of any proceedings
under the United States Bankruptcy Code or any other federal
or state bankruptcy, reorganization, receivership,
insolvency or other similar law affecting the rights of
creditors generally or the making by the Borrower of a
composition or an assignment or trust mortgage for the
benefit of creditors; or
(i) The suspension of the transaction of the usual
business of the Borrower.
2.3 Acceleration of Maturity. At any time during the
existence of any Event of Default (other than Events of Default
under Paragraphs 2.2(b) or (c) above), and at the option of
Lender, the entire unpaid principal balance under this Note,
together with interest accrued thereon and all other sums due
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from Borrower hereunder or under any of the other Loan Documents,
shall become immediately due and payable without notice or
demand. If an Event of Default occurs under Paragraphs 2.2(b) or
(c) above, Lender shall provide Borrower notice of such Event of
Default and Borrower shall have ten (10) days after receipt of
such notice to cure such Event of Default. If such Event of
Default is not cured, the entire unpaid principal balance under
this Note, together with interest accrued thereon and all other
sums due from Borrower hereunder or under any of the other Loan
Documents shall become immediately due and payable. After the
occurrence and during the continuance of an Event of Default
which has not been cured, the principal balance together with
accrued and unpaid interest of this Note shall bear interest at
the Interest Rate plus two and one half percent (2.50%). After
the occurrence and during the continuance of an Event of Default,
Borrower shall be liable for all costs of collection, including
reasonable attorneys' fees.
2.4 Nature of Remedies. Lender's remedies under this Note
and all of the other Loan Documents shall be cumulative and
concurrent and may be pursued singly, successively, or together
against Borrower and any other "Obligors" (as that term is
hereinafter defined), the Collateral (as defined in the Security
Agreement), and any other security described in the Loan
Documents or any portion or combination of such security, and
Lender may resort to every other right or remedy available at law
or in equity without first exhausting the rights and remedies
contained herein, all in Lender's sole discretion. Failure of
Lender, for any period of time or on more than one occasion, to
exercise its option to accelerate the Maturity Date shall not
constitute a waiver of the right to exercise the same at any time
during the continued existence of the Event of Default or in the
event of any subsequent Event of Default. Lender shall not by
any other omission or act be deemed to waive any of its rights or
remedies hereunder unless such waiver is in writing and signed by
Lender, and then only to the extent specifically set forth
therein. A waiver in connection with one event shall not be
construed as continuing or as a bar to or as a waiver of any
right or remedy in connection with a subsequent event.
III
OTHER MATTERS
3.1 Notices. Any notices, consents or other communications
required to be sent or given hereunder shall in every case be in
writing and shall be deemed properly served if (a) delivered
personally, (b) sent by registered or certified mail, in all such
cases with first class postage prepaid, return receipt requested,
(c) delivered by a recognized overnight courier service or (d)
sent by facsimile transmission to Borrower at (313) 591-6443, or
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to Lender at (781) 622-1283. The date of service of such notice
shall be (a) the date such notice is personally delivered, (b)
three days after the day of mailing if sent by certified or
registered mail, (c) one day after date of delivery to the
overnight courier if sent by overnight courier or (d) when
receipt of such transmission is acknowledged, if sent by
facsimile transmission. All such notices and other
communications to a party shall be addressed to such party at the
address set forth on the initial page hereof or to such other
address as such party may designate for itself in a notice to the
other party given in accordance with this section.
3.2 Governing Law. THIS NOTE AND THE TRANSACTIONS
EVIDENCED HEREBY SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
INTERNAL LAWS OF THE STATE OF MICHIGAN, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS, AS THE SAME MAY FROM TIME TO
TIME BE IN EFFECT, INCLUDING, WITHOUT LIMITATION, THE UNIFORM
COMMERCIAL CODE AS IN EFFECT IN SUCH STATE.
3.3 Interpretation. The headings of sections and
paragraphs in this Note are for convenience only and shall not be
construed to limit or define the content, scope, or intent of the
provisions hereof. As used in this Note, the singular shall
include the plural, and masculine, feminine, and neuter pronouns
shall be fully interchangeable, where the context so requires.
If any provision of this Note, or any paragraph, sentence,
clause, phrase, or word, or the application thereof, in any
circumstances, is adjudicated to be invalid, the validity of the
remainder of this Note shall be construed as if such invalid part
were never included herein. Time is of the essence of this Note.
3.4 Subsequent Holders. Upon any endorsement, assignment,
or other transfer of this Note by Lender or by operation of law,
the term "Lender," as used herein, shall mean the endorsee,
assignee, or other transferee or successor to Lender then
becoming the holder of this Note.
3.5 Subsequent Obligors. This Note and all provisions
hereof shall be binding on all persons claiming under or through
Borrower. The terms "Borrower" and "Obligors," as used herein,
shall include the respective successors, assigns, legal and
personal representatives, executors, administrators, devisees,
legatees, and heirs of Borrower and any other Obligors.
[signature page follows]
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In Witness Whereof, Borrower has caused this Note to be
executed as of the date first written hereinabove.
HOLCROFT L.L.C.
By: Holcroft Technologies L.P.,
Sole Member of Holcroft L.L.C.
By: Holcroft Management, Inc.,
General Partner of Holcroft
Technologies L.P.
By: /s/ Scott M. Murray
Name: Scott M. Murray
Title:President