NOTE ISSUANCE AGREEMENT
EXHIBIT
10.28
This
Note
Issuance Agreement (this “Agreement”)
is
dated as of the 12th day of March, 2008, and is made by and between Lime Energy
Co., a Delaware corporation (the “Company”),
and
Xxxxxxx X. Xxxxxxx (“Xxxxxxx”)
and
Advanced Biotherapy, Inc. (“ADVB” and together with Xxxxxxx, “Noteholders”).
WITNESSETH:
WHEREAS,
the Company has issued to the Noteholders that certain Revolving Line of
Credit
Note dated March 12, 2008 and due March 31, 2009, in the maximum principal
amount of $3,000,000
(the “Note”); and
WHEREAS,
the execution and delivery by the parties hereto of this Agreement is one of
the
conditions precedent to the obligation of Noteholders to make loans to the
Company under the Note; and
WHEREAS,
the parties desire to set forth certain additional understandings among
themselves relating to the obligations of the Company to Noteholders and to
certain other matters, all as more fully described herein;
NOW,
THEREFORE, in consideration of the premises and mutual agreements contained
herein,
the parties hereby agrees as follows:
1. Condition
to Advances.
It
shall be a condition to each advance under the Note that no Event of Default
(as
defined in the Note) 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.
2. Commitment
by ADVB.
ADVB
hereby covenants and agrees that it has reserved cash
or
other immediately liquid assets in the amount of $1,500,000 and shall at all
times while the 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 Note.
3. Subordination
by Noteholders.
Noteholders agree to subordinate the Note 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.
4. Information
Regarding Use of Proceeds.
Promptly following request therefore by the Noteholders, the Company shall
provide Noteholders with reasonable detail regarding the use of proceeds with
respect to any advance made under the Note, subject to the Company's obligations
under Regulation F-D.
5. Arbitration.
In the
event of any and all disagreements and controversies arising from this Agreement
or the Note, 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. Either party 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, either
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, neither 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 (excluding attorneys' fees) shall be paid by the
non-prevailing party or as determined by the arbitrator.
6. 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 Note
permitted by the terms thereof.
(c) 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 LENDER 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.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and
year first above written.
|
LIME
ENERGY CO.
By:
/s
Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Executive Vice President and Chief Financial Officer
NOTEHOLDERS:
By:
/s
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X.
Xxxxxxx
Advanced Biotherapy
Inc.
By:
Xxxxxxxxxxx
X.
Xxxxx
Xxxxxxxxxxx
X. Xxxxx,
President
|
