AMENDED AND RESTATED NOTE ISSUANCE AGREEMENT
EXHIBIT
10.2
This
Amended and Restated Note Issuance Agreement (this “Agreement”)
is
dated as of the 31st day of October, 2008, and is made by and between Lime
Energy Co., a Delaware corporation (the “Company”),
Xxxxxxx X. Xxxxxxx (“Xxxxxxx”)
and
Advanced Biotherapy, Inc. (“ADVB”
and
together with Xxxxxxx, “Noteholders”).
W
I T N E
S S E T H:
WHEREAS,
the Company and the Noteholders are parties to that certain Note Issuance
Agreement dated as of August 14, 2008 (the “Existing
Agreement”),
pursuant to which the Company issued to (i) Xxxxxxx, that certain Second
Amended
and Restated Revolving
Line of Credit Note dated August 14, 2008 in the maximum principal amount
of
$14,500,000 (the “Xxxxxxx
Note”)
and
(ii) ADVB, that certain Second Amended and Restated Revolving Line of Credit
Note dated August 14, 2008 in the maximum principal amount of $1,500,000
(the
“Existing
ADVB Note”);
WHEREAS,
ADVB has agreed to loan an additional $3,000,000 to the Company to be evidenced
by that certain Third Amended and Restated Revolving
Line of Credit Note dated the date hereof made by the Company in favor of
ADVB
(the “AR
ADVB Note”
together with the Xxxxxxx Note, the “Notes”);
WHEREAS,
the AR ADVB Note is intended to replace and supersede the Existing ADVB Note;
and
WHEREAS,
the parties desire to set forth certain additional understandings among
themselves as more fully described herein.
NOW,
THEREFORE, in consideration of the premises and mutual agreements contained
herein, the parties hereby agrees as follows:
1. The
AR
ADVB Note.
Contemporaneously with the execution of this Agreement and delivery by the
Company to ADVB of the AR ADVB Note, ADVB shall deliver to the Company the
original Existing ADVB Note.
2. Security
Agreement.
On the
date hereof, the Company and the Noteholders shall enter into that certain
Amendment No. 1 to the Security Agreement dated as of the date hereof which
amends the Security Agreement dated as of August 14, 2008 (collectively,
the
“Security
Agreement”)
made
by the Company in favor of the Noteholders to secure the obligations of the
Company under the Notes.
3. Condition
to Advances.
It
shall be a condition to each advance under the Notes that no Event of Default
(as defined in the Notes) shall have occurred and be continuing. At the time
of
each request for an advance, the Company shall provide to the Noteholders
a
certificate, executed by the Chief Executive Officer or Chief Financial Officer
of the Company, stating that no Event of Default has occurred and is
continuing.
4. Manner
of Advances, Repayments, Prepayments and Payment of the Wachovia
Note.
The
Company hereby covenants and agrees that prior to drawing any advances under
the
Notes after the date of this Agreement, it shall first draw $2,200,000 against
the Notes which shall be used to pay down the entire outstanding balance
of the
Revolving Promissory Note dated June 10, 2008 between Applied Energy Management,
Inc. and Wachovia Bank, National Association in the principal amount of
$2,228,775. All future advances thereafter requested by the Company shall
be
drawn equally against the Notes until the Xxxxxxx Note is fully drawn, after
which all draws will be against the AR ADVB Note
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unless
otherwise agreed to by the Company and the Noteholders in writing. As long
as
both of the Notes remain outstanding, each repayment and prepayment thereof
by
the Company shall be divided into two payments, a payment to the Xxxxxxx
Note
and a payment to the AR ADVB Note, each such payment in an amount proportional
to the outstanding principal balance of each of the Notes.
5. Commitment
by ADVB.
ADVB
hereby covenants and agrees that it has reserved cash or other immediately
liquid assets in an amount equal to the undrawn balance under the AR ADVB
Note,
and shall at all times while the AR ADVB Note remains outstanding continue
to
reserve a sufficient amount of cash or other immediately liquid assets as
to
enable it to make advances under the AR ADVB Note.
6. Subordination
by Noteholders.
Each
Noteholder agrees to subordinate its Note and its security interests evidenced
by the Security Agreement in the event the Company arranges to have a commercial
lender provide financing to the Company for similar purposes, which
subordination must be on terms and conditions acceptable to the Noteholders
in
their reasonable discretion.
7. Information
Regarding Use of Proceeds.
Promptly following request therefore by either Noteholder, the Company shall
provide Noteholders with reasonable detail regarding the use of proceeds
with
respect to any advance made under the Notes, subject to the Company’s
obligations under Regulation F-D.
8. Xxxxxxx
Note.
All
references in the Xxxxxxx Note to the Existing Agreement shall mean and include
only this Agreement.
9. Arbitration.
In the
event of any and all disagreements and controversies arising from this Agreement
or the Notes, such disagreements and controversies shall be subject to binding
arbitration as arbitrated in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association in Chicago, Illinois
before one neutral arbitrator. Any party involved in such disagreement or
controversy may apply to the arbitrator seeking injunctive relief until the
arbitration award is rendered or the controversy is otherwise resolved. Without
waiving any remedy under this Agreement, any involved party may also seek
from
any court having jurisdiction any interim or provisional relief that is
necessary to protect the rights or property of that party, pending the
establishment of the arbitral tribunal (or pending the arbitral tribunal’s
determination of the merits of the controversy). In the event of any such
disagreement or controversy, no party shall directly or indirectly reveal,
report, publish or disclose any information relating to such disagreement
or
controversy to any person, firm or corporation not expressly authorized by
the
other party to receive such information or use such information or assist
any
other person in doing so, except to comply with actual legal obligations
of such
party, or unless such disclosure is directly related to an arbitration
proceeding as provided herein, including, but not limited to, the prosecution
or
defense of any claim in such arbitration. The costs and expenses of the
arbitration (including, without limitation, reasonable attorneys’ fees) shall be
paid by the non-prevailing party or as determined by the
arbitrator.
10. Miscellaneous.
(a) All
of
the WHEREAS clauses and other recitals at the beginning of this Agreement
are
hereby incorporated into and made part of this Agreement.
(b) This
Agreement shall be binding upon, and shall inure solely to the benefit of,
each
of the parties hereto, and each of their respective heirs, executors,
administrators, successors and permitted assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
No
Noteholder shall assign its rights under this Agreement except in connection
with an assignment under the Notes
permitted by the terms thereof.
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(c) This
Agreement amends and restates the Existing Agreement in its entirety as of
the
date hereof, and this Agreement may be amended only by written execution
by all
parties. No waiver of any provision of this Agreement shall in any event
be
effective unless the same shall be in writing and acknowledged by the party
against whom enforcement is sought, and then any such waiver shall be effective
only in the specific instance and for the specific purpose for which
given.
(d) The
descriptive headings of the several sections and paragraphs of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(e) All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than
the
State of Illinois.
(f) Wherever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement shall be prohibited by, unenforceable or invalid under any
jurisdiction, such provision shall as to such jurisdiction, be severable
and be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other
jurisdiction.
(g) This
Agreement may be executed in one or more counterparts, all of which shall
be
deemed but one and the same agreement and each of which shall be deemed an
original. Delivery by facsimile of an executed counterpart of this Agreement
shall be effective as an original executed counterpart hereof and shall be
deemed a representation that an original executed counterpart hereof will
be
delivered.
(h) THE
PARTIES HERETO, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
WITH
COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY,
ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY
RIGHTS UNDER THIS AGREEMENT.
(i) ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
AGREEMENT SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE
OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF
ILLINOIS; PROVIDED
THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE NOTEHOLDER
FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. EACH
PARTY
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS
OF
THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE
AND EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
[Signatures
on following page]
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and
year first above written.
LIME
ENERGY CO.
By:
/s/ Xxxxxxx X. Mistarz_____________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Executive Vice President and Chief Financial Officer
NOTEHOLDERS:
Xxxxxxx
X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Advanced
Biotherapy, Inc.
By:
/s/ Xxxxxxxxxxx X. Xxxxx
Xxxxxxxxxxx
X. Xxxxx, President
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