REVOLVING CREDIT NOTE
EXHIBIT
10.22
| $7,000,000 |
August 31,
2008
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FOR VALUE RECEIVED, the
undersigned, GENERAL
ENVIRONMENTAL MANAGEMENT, INC., a Nevada corporation (the “Maker”), hereby
promises to pay to CVC
CALIFORNIA, LLC, a Delaware limited liability company (“CVC”), or registered
assigns (hereinafter, collectively with CVC, referred to as the “Payee”), on August
31, 2011 (or sooner by reason of an Event of Default or other mandatory
prepayment event in accordance with the Loan Agreement hereinafter described),
the principal sum of Seven Million ($7,000,000) Dollars or, if less, the
aggregate then-outstanding principal amount of all Advances made by the Payee to
the Maker pursuant to that certain Revolving Credit and Term Loan Agreement of
even date herewith by and between CVC and the Maker (as same may be amended,
modified, supplemented and/or restated from time to time, the “Loan Agreement”),
together with interest (computed as hereinafter provided) on any and all
principal amounts outstanding hereunder from time to time from the date hereof
until payment in full hereof, at a rate per annum equal to the greater of (a)
the Prime Rate (as such term is hereinafter defined) as in effect from time to
time plus two (2%) percent, or (b) seven (7%) percent; provided, however, that during
the continuance of any Event of Default under the Loan Agreement, the interest
rate otherwise applicable hereunder shall be increased by five hundred (500)
basis points. All interest shall be computed on the daily unpaid
principal balance hereof based on a three hundred sixty (360) day year, and
shall be payable monthly in arrears on the first day of each calendar month
commencing October 1, 2008, and upon maturity or acceleration
hereof.
As used
herein, the term “Prime Rate” shall mean the “prime rate” or “base rate” of
interest publicly announced by Citibank, N.A. (or any successor thereto, or in
the event that such bank shall cease to exist and shall have no successor, any
other domestic commercial bank selected by the Payee in good faith) from time to
time, which is merely a reference rate for determining the interest rate to be
charged on loans or other financial transactions, and may or may not be the best
rate offered by such bank for commercial loans; and upon each announced change
of the Prime Rate by such bank, the interest rate hereunder shall be
correspondingly adjusted.
The Maker
shall have the right, at any time and from time to time, without premium or
penalty, to prepay all or any portion of the principal balance of this Note upon
written notice to the Payee, stating the amount of the prepayment. In
addition, the Maker shall be required to make principal payments hereunder,
without requirement of notice or demand, as and to the extent provided in
Sections 2.01(d) and 2.07 of the Loan Agreement.
Unless
the Maker shall be otherwise notified in writing by CVC, all principal and
interest hereunder are payable in lawful money of the United States of America
at the office of CVC set forth in the Loan Agreement in immediately available
funds. Payments of principal and/or interest hereunder shall be made,
at the Payee’s option, by debiting any demand deposit account(s) in the name of
the Maker at the Payee (or any agent of the Payee) or in such other reasonable
manner as may be designated by the Payee in writing to the Maker and in any
event shall be made in immediately available funds. The Maker hereby
irrevocably authorizes the Payee to so debit any and all such demand deposit
accounts.
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The Maker
hereby waives presentment, demand, dishonor, protest, notice of protest,
diligence 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 hereby further waives 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.
This Note
is the Revolving Credit Note issued pursuant to the terms of the Loan Agreement
and is secured pursuant to the provisions of certain “Security Documents”
referred to in the Loan Agreement. This Note is entitled to all of
the benefits of the Loan Agreement and said Security Documents, including
provisions governing the payment and the acceleration of maturity hereof, which
agreements and instruments are hereby incorporated by reference herein and made
a part hereof. The occurrence and continuance of an Event of Default
thereunder shall constitute a default under this Note and shall entitle the
Payee to accelerate the entire indebtedness hereunder and take such other action
as may be provided for in the Loan Agreement and/or any and all other
instruments evidencing and/or securing the indebtedness under this Note, or as
may be provided under the law.
In the
event that any holder of this Note shall, during the continuance of any Event of
Default, exercise or endeavor to exercise any of its remedies hereunder or under
the Loan Agreement or any of the Security Documents, the Maker shall pay all
costs and expenses incurred in connection therewith, including, without
limitation, reasonable attorneys’ fees, all of which costs and expenses shall be
obligations under and part of this Note; and the holder hereof may take judgment
for all such amounts in addition to all other sums due hereunder.
No
consent or waiver by the holder hereof with respect to any action or failure to
act which, without such consent or waiver, would constitute a breach of any
provision of this Note shall be valid and binding unless in writing and signed
by the Maker and by the holder hereof.
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 any
of the Security Documents or the Loan Agreement, 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 any of
the Maker’s Obligations (as such term is defined in the Loan Agreement) to the
Payee, 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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This Note
shall be governed by and construed in accordance with the laws of the State of
New York, except to the extent that such laws are superseded by Federal
enactments.
The Maker
hereby consents to the 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. 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.
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IN WITNESS WHEREOF, the Maker
has caused this Note to be executed by its duly authorized officer as of the
date first set forth above.
| GENERAL ENVIRONMENTAL MANAGEMENT, INC. | ||||
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By: |
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Xxxxxxx X. Xxxxxx
Chief Executive Officer
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