ex10-33.htm


    
      

      

    

    Exhibit
10.33

     

    
      
        	$5,600,000	
                 August 17,
      2009

              


      

       

      PURCHASE
MONEY NOTE

       

      FOR VALUE
RECEIVED, the undersigned, MTS ACQUISITION COMPANY, INC., a California
corporation (the “Maker”),
hereby promises to pay to GENERAL ENVIRONMENTAL MANAGEMENT, INC., a Delaware
corporation (“GEM”),
or registered assigns (hereinafter, collectively with GEM, the “Payee”),
the sum of Five Million Six Hundred Thousand ($5,600,000) Dollars (the “Principal”),
with interest thereon, on the terms and conditions set forth
herein.

       

      Payments
of principal of, interest on and any other amounts with respect to this Purchase
Money Note (this “Note”)
are to be made in lawful money of the United States of America.

       

      1.           Payments.

       

      (a)           Interest.  This
Note shall bear interest (“Interest”)
on Principal amounts outstanding from time to time from the date hereof at the
rate of eight (8%) percent per annum; provided,
however,
that during the continuance of any Event of Default (as such term is hereinafter
defined), the interest rate hereunder shall be thirteen (13%) percent per
annum.  All Interest shall be computed on the daily unpaid Principal
balance of this Note based on a three hundred sixty (360) day
year.

       

      (b)           Payments.  On
the first day of each calendar month commencing September 1, 2009 through and
including August 1, 2010, accrued Interest on the outstanding Principal shall be
due and payable.  Thereafter, Principal and Interest under this Note
shall be payable in thirty-six (36) consecutive equal monthly installments of
Principal and Interest of $174,321.50 each, with the first installment due and
payable on September 1, 2010, and with subsequent installments due and payable
on the first day of each calendar month thereafter through and including August
1, 2013.  To the extent that Principal hereunder shall at any time
bear interest at the default rate provided in paragraph 1(a) above, then,
simultaneously with the next scheduled payment of Principal and Interest, or
upon acceleration of this Note, there shall be due and payable the additional
accrued Interest arising by reason of the increase in the applicable interest
rate hereunder.

       

      (c)           Non-Business
Day.  If
any scheduled payment date as aforesaid is not a business day in the State of
California or the State of Florida, then the payment to be made on such
scheduled payment date shall be due and payable on the next succeeding business
day, with additional interest on any Principal amount so delayed for the period
of such delay.  As used in this Note, the term “business day” shall
mean any day that is not a Saturday, Sunday or legal holiday in the State of
California.

       

      2.           Prepayment.

       

      (a)           Optional
Prepayment of Principal.  All
or any portion of the unpaid Principal balance of this Note, together with all
accrued and unpaid Interest on the Principal amount being prepaid, may at the
Maker’s option be prepaid in whole or in part, without premium or penalty, at
any time or from time to time, upon five (5) business days’ prior written notice
to the Payee.

       

      
        
          
          

        

        
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      (b)           Mandatory
Prepayments of Principal.  The
entire Principal balance of this Note, and all accrued and unpaid Interest
hereunder, (i) shall be required to be prepaid upon the consummation of any Sale
(as such term is defined in the Revolving Credit Agreement described in
paragraph 3 below), and (ii) may be required to be prepaid during the existence
of any Event of Default.

       

      (c)           Application
of Payments.  Any
and all prepayments hereunder shall be applied first to unpaid accrued Interest
on the Principal amount being prepaid and then to Principal, and the remaining
installments hereunder shall be recalculated so as to provide for equal monthly
payments of Principal and Interest on the scheduled payment dates through the
reminder of the stated payment term pursuant to paragraph 1(b)
above.

       

      3.           Events
of Default.  The
failure of the Maker to make any payment when due hereunder and the continuance
of such default for five (5) business days after such payment was first due and
payable, or the existence of any event, circumstance or condition which
constitutes or would constitute an Event of Default under the Revolving Credit
Agreement of even date herewith by and between GEM and the Maker (regardless of
whether such Revolving Credit Agreement has theretofore expired or been
terminated) shall constitute an Event of Default under this Note and shall
entitle the Payee to accelerate the entire indebtedness hereunder and take such
other action as may be provided in any and all other instruments evidencing
and/or securing the indebtedness under this Note, or as may be provided under
the law.

       

      4.           Collateral.  This
Note and the Maker’s obligations hereunder are secured by liens upon
substantially all of the now-owned and hereafter-acquired assets and properties
of the Maker, pursuant to a Collateral Agreement of even date herewith by and
between GEM, the Maker and Back Nine LLC, and such further security documents as
may be executed and delivered pursuant to such Collateral
Agreement.

       

      5.           Assignment.  This
Note shall be binding upon and shall inure to the benefit of the respective
successors and permitted assigns of the parties hereto, provided that (a) the
Maker may not assign any of its rights or obligations hereunder without the
prior written consent of the Payee, and (b) in the event of any assignment of
this Note by the Payee, the Payee shall give written notice of such assignment
to the Maker.  This Note is not a bearer instrument, and shall only be
payable to its registered holder, and the Maker hereby appoints the Payee as the
Maker’s agent to maintain the register in which the registered holders of this
Note shall be recorded.

       

      6.           Waiver
and Amendment.  No
waiver of a right in any instance shall constitute a continuing waiver of
successive rights, and any one waiver shall govern only the particular matters
waived.  Neither any provision of this Note nor any performance
hereunder may be amended or waived except pursuant to an agreement in writing
signed by the party against whom enforcement thereof is
sought.  Except as otherwise expressly provided in this Note, the
Maker hereby waives, to the extent not prohibited by applicable law, diligence,
demand, presentment for payment, protest, dishonor, nonpayment, default, notice
of any and all of the foregoing, and any other notice or action otherwise
required to be given or taken under the law in connection with the delivery,
acceptance, performance, default, enforcement or collection of this Note, and
expressly agrees that this Note, or any payment hereunder, may be extended,
modified or subordinated (by forbearance or otherwise) from time to time,
without in any way affecting the liability of the Maker.  The Maker
further waives, to the extent not prohibited by applicable law, the benefit of
any exemption under the homestead exemption laws, if any, or any other
exemption, appraisal or insolvency laws, and consents that the Payee may release
or surrender, exchange or substitute any personal property or other collateral
security now held or which may hereafter be held as security for the payment of
this Note.

       

      
        
          
          

        

        
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      7.           Governing
Law.  This
Note shall be construed in accordance with and governed by the
laws of the State of New York, except to the extent superseded by Federal
enactments.

       

      8.           Consent
to Jurisdiction; Waiver of Jury Trial.  The
Maker hereby consents to the non-exclusive jurisdiction of all courts of the
State of New York and the United States District Court for the Southern District
of New York, as well as to the jurisdiction of all courts from which an appeal
may be taken from such courts, for the purpose of any suit, action or other
proceeding arising out of or with respect to this Note, and waives any
objections to such jurisdiction and venue on grounds of forum
non
conveniens
or other such basis.  The Maker hereby waives the right to interpose
any counterclaims (other than compulsory counterclaims) in any action brought by
the Payee hereunder, provided that this waiver shall not preclude the Maker from
pursuing any such claims by means of separate proceedings.  THE MAKER
HEREBY EXPRESSLY WAIVES ANY AND ALL OBJECTIONS WHICH IT MAY HAVE AS TO VENUE IN
ANY OF SUCH COURTS, AND ALSO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY SUCH
SUIT, ACTION OR PROCEEDING.  The Payee may file a copy of this Note as
evidence of the foregoing waiver of right to jury trial.

       

      9.           Usury
Savings Clause.  All
agreements between the Maker and the Payee are hereby expressly limited to
provide that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Payee for the use, forbearance
or detention of the indebtedness evidenced hereby exceed the maximum amount
which the Payee is permitted to receive under applicable law.  If,
from any circumstances whatsoever, fulfillment of any provision hereof or of the
Loan Agreement or any Loan Document thereunder, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by law, then, ipso facto, the obligation to be fulfilled shall
automatically be reduced to the limit of such validity, and if from any
circumstance the Payee shall ever receive as interest an amount which would
exceed the highest lawful rate, such amount which would be excessive interest
shall be applied to the reduction of the principal balance of this Note, and not
to the payment of interest hereunder.  To the extent permitted by
applicable law, all sums paid or agreed to be paid for the use, forbearance or
detention of the indebtedness evidenced by this Note shall be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full, to the end that the rate or amount of interest on account
of such indebtedness does not exceed any applicable usury ceiling.  As
used herein, the term “applicable law” shall mean the law in effect as of the
date hereof, provided, however, that in the event there is a change in the law
which results in a higher permissible rate of interest, then this Note shall be
governed by such new law as of its effective date.  This provision
shall control every other provision of all agreements between the Maker and the
Payee.

       

      
        
          
          

        

        
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      10.           Collection
Costs.  In
the event that the Payee shall place this Note in the hands of an attorney for
collection during the continuance of any Event of Default, the Maker shall
further be liable to the Payee for all reasonable out-of-pocket costs and
expenses (including reasonable attorneys’ fees) which may be incurred by the
Payee in enforcing this Note, all of which costs and expenses shall be
obligations under and part of this Note; and the Payee may take judgment for all
such amounts in addition to all other sums due hereunder.

       

      11.           Notices.  Any
notice given under this Note to the Maker or to the Payee shall be given in
accordance with Section 9.06 of the Revolving Credit Agreement described in
paragraph 3 above.

       

      IN
WITNESS WHEREOF, the Maker has executed this Note on the date first above
written.

       

       

      
        
          
            
              	 	 	 	
                      MTS
      ACQUISITION COMPANY, INC.

                    	 
	 	 	 	 	 
	
                       

                    	 	 	
                      By:

                    	 
	
                       

                    	 	 	
                      Name 

                    	 
	
                       

                    	 	 	
                      Title