THIRD AMENDED AND RESTATED MORTGAGE NOTE
Exhibit 10.2
THIRD AMENDED AND RESTATED MORTGAGE NOTE
WHEREAS, the undersigned, LIME ENERGY CO., a Delaware corporation (formerly known as Electric
City Corp.) (“Borrower”), executed and delivered to the order AMERICAN CHARTERED BANK, an Illinois
state banking association (“Bank”), that certain Second Amended and Restated Mortgage Note, dated
December 28, 2006, in the original principal amount of $526,000.00 (the “Prior Note”); and
WHEREAS, Borrower has requested, and Bank has agreed, to amend and restate the Prior Note in
its entirety to extend the Maturity Date on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Prior Note is
hereby amended and restated in its entirety as follows:
| $490,000.00 | December 17, 0000 | |
| Xxxxxxx, Xxxxxxxx |
FOR VALUE RECEIVED, the undersigned, LIME ENERGY CO., a Delaware corporation (“Borrower”),
hereby promises to pay to the order of AMERICAN CHARTERED BANK, an Illinois state banking
association (“Bank”), in immediately available funds, on February 1, 2010, or such earlier maturity
date as provided for herein, the principal sum of $490,000.00 (the “Loan”), as follows:
ARTICLE I
1.1 Repayment of Principal and Interest. Borrower shall make equal consecutive
monthly principal installments of $3,000.00, plus monthly payments of all accrued and unpaid
interest. The monthly principal and interest payments shall be due on the first day of each month
(commencing January 1, 2008) until February 1, 2010 (“Maturity Date”). A final payment of all
outstanding principal and all accrued and unpaid interest shall be due and payable on February 1,
2010, unless such maturity date is accelerated in accordance with the terms hereof.
1.2 Interest Rate. The outstanding principal balance of this Note shall bear interest
a per annum rate equal to the “Prime Rate” (as hereinafter defined) plus .50% (“Mortgage Interest
Rate”). Interest on the outstanding principal amount hereunder shall be computed on the basis of
the actual number of days elapsed on the basis of a year of 360 days at the Mortgage Interest Rate
from time to time in effect.
As used herein, the term “Prime Rate” shall mean the rate which, at any time and from time to
time, shall be the rate of interest then most recently announced by the Bank as its prime rate,
which is not intended to be the Bank’s lowest or most favorable rate of interest at any one time.
The effective date of any change in the Prime Rate shall be the date the rate is changed by the
Bank.
The Bank shall not be obligated to give notice of any change in the Prime Rate. Interest on the unpaid
principal balance of the Loan shall be payable, in arrears, beginning on January 1, 2006, and
continuing of the last day of each month thereafter, and on the Maturity Date.
1.3 Prepayment. Borrower shall be permitted to make prepayment of the indebtedness
evidenced by this Note, in whole or in part, from time to time as the Borrower may desire without
penalty or premium.
ARTICLE II
2.1 Security for Payment; Loan Documents. This Note is secured by that certain
Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of May 29, 2002, securing
the property commonly known as 0000 Xxxxxxxxx Xxxx, Xxx Xxxxx Xxxxxxx, Xxxxxxxx, as amended by that
certain Amended and Restated Mortgage, Assignment of Leases and Rents, and Security Agreement dated
September 30, 2003 and recorded as Document #0410732101, that certain Second Amended and Restated
Mortgage, Assignment of Leases and Rents, and Security Agreement dated December 31, 2004 and
recorded as Document #0501002435, that certain Third Modification to Mortgage recorded on January
10, 2006 as Document #0601043120, and that certain Fourth Modification to Mortgage recorded on
January 11, 2007 as Document #0000000000 (collectively, the “Mortgage”), and the other Loan
Documents (as defined in the Mortgage). Reference is hereby made to the Mortgage and the other
Loan Documents, which are incorporated herein by this reference as fully and with the same effect
as if set forth herein at length.
2.2 Event of Default. Borrower, without notice or demand of any kind, shall be in
default hereunder if:
(a) any amount payable on this Note or on any other liability or obligation of the Borrower to
the Bank, howsoever created, arising or evidenced, and howsoever owned, held or acquired, whether
now or hereafter existing, whether now due or to become due, whether direct or indirect, or
absolute or contingent, and whether several, joint or joint and several, including, without
limitation any guaranty executed by the Borrower for the benefit of the Bank (all of which
liabilities and obligations, including this Note, are hereinafter called the “Obligations”) is not
paid when due; or
(b) Borrower shall otherwise fail to perform any of the promises to be performed by the
Borrower hereunder or under any other security agreement or other agreement with the Bank,
including, but not limited to the obligations set forth in Article IV herein and such failure shall
continue beyond any grace period applicable thereto; or
(c) the Borrower or any other party liable with respect to the Obligations, or any guarantor
or accommodation endorser or third party pledgor, shall make any assignment for the benefit of
creditors, or there shall be commenced any bankruptcy, receivership, insolvency, reorganization,
dissolution or liquidation proceedings by or against, or the entry of any judgment, levy,
attachment, garnishment or other process, or the filing of any lien against the Borrower or any
guarantor, or any other party liable with respect to the Obligations, or accommodation endorser or
third party pledgor for any of the Obligations, or against any of the Collateral (as defined below)
or any of the collateral under a separate security agreement signed by any one of them; or
(d) there be any deterioration or impairment of any of the Collateral hereunder or any of the
collateral under any security agreement executed by the Borrower or any other party liable with
respect to the Obligations, or any guarantor or accommodation endorser or third party pledgor for
any of the Obligations, or any decline or depreciation in the value or market price thereof
(whether actual or reasonably anticipated), which causes said Collateral or collateral in the sole
opinion of the Bank acting in good faith, to become unsatisfactory as to value or character, or
which causes the Bank to reasonably believe that it is insecure and that the likelihood for
repayment of the Obligations is or will soon be impaired, time being of the essence; or
(e) if this Note is secured by an additional or separate security agreement, then, the
occurrence of any default thereunder; or
(f) there is a discontinuance by any guarantor of any guaranty of Obligations hereunder; or
the determination by the Bank that a material adverse change has occurred in the financial
condition of the Borrower from the condition set forth in the most recent financial statement of
the Borrower furnished to the Bank, or from the financial condition of the Borrower most recently
disclosed to the Bank in any manner; or
(g) any oral or written warranty, representation, certificate or statement of the Borrower to
the Bank is untrue in any material respect; or
(h) the failure to do any act necessary to preserve and maintain the value and collectability
of the Collateral; or
(i) failure of the Borrower after request by the Bank to furnish financial information or to
permit inspection by the Bank of the Borrower’s books and records; or
(j) any guarantor of this Note or of any of the other Obligations shall contest the validity
of such guaranty.
2.3 Acceleration of Maturity. At any time after the occurrence of any Event of
Default which is continuing, Bank has the option, without demand or notice, to declare the unpaid
principal of this Note, together with all accrued interest and other sums evidenced by or secured
by the Mortgage or any other of the Loan Documents, at once due and payable to the extent permitted
by law; to foreclose the Mortgage and the liens or security interests securing the payment of this
Note; and to exercise any and all other rights and remedies available at law or in equity or under
the Mortgage or any of the other Loan Documents.
2.4 Remedies. No delay on the part of the Bank in exercising any right under this
Note, the Loan Documents or other undertaking securing or affecting this Note, shall operate as a
waiver of such right or any other right under this Note, nor shall any omission in exercising any
right on the part of the Bank under this Note operate as a waiver of any other right.
2.5 Default Interest Rate. While any Event of Default exists, interest on the unpaid
principal balance of the Loan from time to time will accrue at an annual rate (“Default Rate”)
equal to the Mortgage Interest Rate plus 3.0%, and Borrower shall pay such interest upon demand, or
if no such demand is made, then at the times installments of interest and/or principal are due as
provided herein.
2.6 Costs. Borrower shall pay all costs and expenses of Bank, including reasonable
attorneys’ fees and costs incurred by the Bank in enforcing this Note.
ARTICLE III
3.1 Notices. Any notice, demand, request or other communication which any party may
be required or may desire to give will be deemed to have been given if made in accordance with the
terms of the Mortgage.
3.2 Governing Law. The validity, enforcement and interpretation of this Note shall
for all purposes be governed by and construed in accordance with the laws of the State of Illinois,
without regard to its conflicts of law principles, and applicable United States federal law, and is
intended to be performed in accordance with, and only to the extent permitted by, such laws.
Borrower hereby irrevocably submit generally and unconditionally for Borrower and in respect of
Borrower’s property to the jurisdiction of any local court, or any United States federal court,
sitting in Xxxx County, State of Illinois, over any suit, action or proceeding arising out of or
relating to this Note or the Loan. Borrower hereby irrevocably waive, to the fullest extent
permitted by law, any objection that Borrower may now or hereafter have to the laying of venue in
any such court and any claim that any such court is an inconvenient forum. Nothing herein shall
affect the right of Bank to serve process in any manner permitted by law or limit the right of Bank
to bring proceedings against Borrower in any other court or jurisdiction.
3.3 Waivers. Borrower and each Obligor waive any and all presentment, demand, notice
of dishonor, protest, and all other notices and demands in connection with the enforcement of the
Bank’s rights hereunder. No default shall be waived by the Bank except in writing. No delay on
the part of the Bank in the exercise of any right or remedy shall operate as a waiver thereof, and
no single or partial exercise by the Bank of any right of remedy shall operate as a waiver thereof,
and no single or partial exercise by the Bank of any right or remedy shall preclude other or
further exercise thereof, or the exercise of any other right or remedy. This Note: (i) is valid,
binding and enforceable in accordance with its provisions, and no conditions exist to the legal
effectiveness of this Note; (ii) contains the entire agreement between the Borrower and the Bank;
(iii) taken with the Mortgage and the other Loan Documents, is the final expression of their
intentions; and (iv) supersedes all negotiations, representations, warranties, commitments, offers,
contracts (of any kind or nature, whether oral or written) prior to or contemporaneous with the
execution hereof. Other than as set forth in the Mortgage and the other Loan Documents, no prior
or contemporaneous representations, warranties, understanding, offers or agreements of any kind or
nature, whether oral or written, have been made by the Bank or relied upon by the Borrower in
connection with the execution hereof. No modification, discharge, termination or waiver of any of
the provisions hereof shall be binding upon the Bank, except as expressly set forth in a writing
duly signed and delivered on behalf of the Bank.
3.4 Construction. The validity and construction of this Note and all matters
pertaining thereto are to be determined and construed according to the laws of the State of
Illinois, without regard to its conflicts of law principles. The captions and headings of this
Note are for convenience only shall be disregarded in construing it.
3.5 Business Loan. Borrower hereby represents that: (a) the proceeds of the Loan will
be used for the purposes specified in 815 ILCS 205/4(1)(a) or (c) of the Illinois Compiled
Statutes, as amended; (b) the Loan constitutes a “business loan” within the purview of those
Sections; and (c) the proceeds of the Loan will not be used for the purchase of registered equity
securities within the purview of Regulation “U” issued by the Board of Governors of the Federal
Reserve System.
3.6 Severability. In the event any provision (or any part of any provision) contained
in this Note shall for any reason be finally held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision (or remaining part of the affected provision) of this Note;
but this Note shall be construed as if such invalid, illegal or unenforceable provision (or part
thereof) had never been contained herein, but only to the extent it is invalid, illegal or
unenforceable.
3.7 Usury. Notwithstanding any provisions of this Note or any instrument securing
payment of the indebtedness evidenced by this Note to the contrary, it is the intent of Bank that
Bank shall never be entitled to receive, collect or apply, as interest on principal of the
indebtedness, any amount in excess of the maximum rate of interest permitted to be charged by
applicable law; and if under any circumstance whatsoever, fulfillment of any provision of this
Note, at the time performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by applicable law, then the obligation to be fulfilled shall be reduced to
the limit of such validity; and in the event Bank ever receives, collects or applies as interest
any such excess, such amount which would be excess interest will be deemed a permitted partial
prepayment of principal without penalty or premium and treated as such; and if the principal amount
secured hereby is paid in full, any remaining excess funds shall forthwith be paid to Borrower. In
determining whether or not interest of any kind payable hereunder, under any specific contingency,
exceeds the highest lawful rate, Borrower and Bank will, to the maximum extent permitted under
applicable law, (1) characterize any non-principal payment as an expense, fee or premium rather
than as interest and (2) amortize, prorate and allocate such payment so that the interest on
account of such indebtedness does not exceed the maximum amount permitted by applicable law. Bank
shall not be subject to any penalties provided by any laws for contracting for, charging or
receiving interest in excess of the maximum lawful rate.
3.8 Successors and Permitted Assigns. This Note shall inure to and bind (i) Borrower
and Borrower’s successors and permitted assigns, and (ii) Bank and Bank’s successors and assigns.
Without limitation of the foregoing, Borrower expressly acknowledge that, after the closing of the
Loan, Bank may assign and transfer all rights and interests of the Bank hereunder to an assignee to
be identified by Bank, and acknowledge and agree that, upon execution and delivery of the
assignment in relation thereto, such assignee shall hold all of the rights and interests of Bank
hereunder.
3.9 Time of Essence. Time shall be of the essence as to each and every provision of
this Note.
3.10 Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER AND BANK
HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND OR
PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE DEALING OF BORROWER AND BANK WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER AND BANK HEREBY
AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND OR PROCEEDING SHALL BE DECIDED BY A
COURT TRIAL WITHOUT A JURY AND THAT BANK OR BORROWER MAY FILE AN EXECUTED COPY OF THIS NOTE WITH
ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF BORROWER AND BANK TO THE WAIVER
OF ITS RIGHT TO TRIAL BY JURY. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER
OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTION OR PROCEEDINGS, INCLUDING CLAIMS
AGAINST PARTIES WHO ARE NOT PARTIES TO THIS NOTE. THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY BORROWER, AND BORROWER HEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR
OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY, THAT THEY HAVE
BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL SELECTED BY BORROWER OF ITS OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL.
ARTICLE IV
4.1 Security. As security for the payment of this Note and any and all other
liabilities and Obligations of the Borrower to the Bank, the Borrower does hereby pledge, assign,
transfer and deliver to the Bank and does hereby grant to the Bank a continuing security interest
in and to any property of the Borrower of any kind or description, tangible or intangible, now or
hereafter assigned, transferred or delivered to or left in or coming into the possession, control
or custody of, or in transit to, the Bank or any agent or bailee for the Bank, by or for the
account of the Borrower, whether expressly as collateral security or for any other purpose,
including, without limitation, all property left with the Bank whether held in a general or special
account or for safekeeping or otherwise, all dividends, interest, or other rights in connection
with any securities included in said property left with the bank whether held in a general or
special account or for safekeeping or otherwise, all dividends, interest, or other rights in
connection with any securities included in said property coming into the possession of the Bank in
any way and any property covered by a security agreement signed or assigned by the Borrower in
favor of the Bank, including, but not limited to the cash, accounts, inventory, negotiable
instruments, documents of title, chattel paper, certificates of deposit, securities, deposit
accounts, other cash equivalents and all other property of whatever description of the Borrower,
whether now existing or hereafter acquired, and now or hereafter in the possession or control of or
assigned to the Bank, and the products and proceeds therefrom, including the proceeds of insurance
thereon; and the additional property of the Borrower, whether now existing or hereafter arising or
acquired, together with any substitutions therefore, accessions thereto, or products and proceeds
therefrom, including the proceeds of insurance thereon, but
excluding in all events any personal property of the Borrower.
All of the aforesaid property and the products and proceeds therefrom, including the proceeds
of insurance thereon are herein collectively called the “Collateral.” The terms used
herein to identify the Collateral shall have the respective meanings assigned to such terms in the
Illinois Uniform Commercial Code, as in effect from time to time. The cancellation or surrender of
this Note, upon payment or otherwise, shall not affect the right of the Bank to retain the
Collateral for any other of the Obligations.
ARTICLE V
Borrower shall maintain all of its operating, cash management, depository, payment, lock box,
remittance and investment accounts with Bank, other than certain certificates of deposit, and shall
collectively maintain balances in such accounts as are necessary to compensate Bank for any service
charges on such accounts. Borrower shall deposit into such accounts all amounts necessary to pay
any service charges payable to Bank immediately following notice from Bank of the amount by which
such service charges exceed the balance in such accounts.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed and delivered as of the date
first stated above.
| LIME ENERGY CO., a Delaware corporation | ||||||
| By: Its: |
/s/ Xxxxxxx Xxxxxxx
|
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