exv10w85



 



Exhibit 10.85



MORTGAGE NOTE




	 	 	 
	$640,000.00	 	
September  , 2003

Chicago, Illinois





     FOR VALUE RECEIVED, the undersigned, ELECTRIC CITY CORP., a Delaware
corporation, and GREAT LAKES CONTROLLED ENERGY CORPORATION, a Delaware
corporation (collectively, “Borrowers”) hereby promise to pay to the order of
AMERICAN CHARTERED BANK, an Illinois state banking association (“Bank”), in
immediately available funds, on February 1, 2005, or such earlier maturity date
as provided for herein, the principal sum of $640,000.00 (the “Loan”), as
follows:


ARTICLE I



     1.1 Repayment of Principal and Interest. Borrowers shall jointly and
severally 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 October 1, 2003) until February 1, 2005 (“Maturity Date”). A
final payment of all outstanding principal and all accrued and unpaid interest
shall be due and payable on February 1, 2005, 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 October 1, 2003, and continuing of the last
day of each month thereafter, and on the Maturity Date.


     1.3 Prepayment. Borrowers shall be permitted to make prepayment of the
indebtedness evidenced by this Note, in whole or in part, from time to time as
the Borrowers may desire without penalty or premium.


ARTICLE II



     2.1 Security for Payment; Loan Documents. This Note is secured by a
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Mortgage, Assignment of Leases and Rents and Security Agreement securing the
property commonly known as 1280 Landmeier Road, Elk Grove Village, Illinois
(the “Mortgage”) and the other “Loan Documents” referred to therein. Reference
is hereby made to the Mortgage, Security Agreements 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. Borrowers, 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 Borrowers 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 Borrowers 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) Borrowers shall otherwise fail to perform any of the promises to be
performed by the Borrowers 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 Borrowers 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
Borrowers 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
Borrowers 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 Borrowers from the
condition set forth in the most recent financial statement of the Borrowers
furnished to the Bank, or from the financial condition of the Borrowers most
recently disclosed to the Bank in any manner; or


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          (g) any oral or written warranty, representation, certificate or
statement of the Borrowers 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 Borrowers after request by the Bank to furnish
financial information or to permit inspection by the Bank of the Borrowers’
books and records; or


          (j) any guarantor of this Note or of any of the other Obligations shall
contest the validity of such guaranty; or


          (k) [covered by (f) above]


     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
Borrowers 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. Borrowers 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.


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Borrowers hereby irrevocably submit generally and unconditionally for Borrowers
and in respect of Borrowers’ property to the jurisdiction of any local court,
or any United States federal court, sitting in Cook County, State of Illinois,
over any suit, action or proceeding arising out of or relating to this Note or
the Loan. Borrowers hereby irrevocably waive, to the fullest extent permitted
by law, any objection that Borrowers 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
Borrowers in any other court or jurisdiction.



     3.3 Waivers. Borrowers 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 Borrowers 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. Borrowers 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.


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     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 Borrowers. In determining whether or
not interest of any kind payable hereunder, under any specific contingency,
exceeds the highest lawful rate, Borrowers 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) Borrowers and Borrowers’ successors and permitted assigns, and (ii) Bank
and Bank’s successors and assigns. Without limitation of the foregoing,
Borrowers 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,
BORROWERS 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 BORROWERS 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, BORROWERS 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 BORROWERS MAY FILE AN EXECUTED COPY OF THIS
NOTE WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF
EACH OF BORROWERS 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 BORROWERS, AND BORROWERS HEREBY REPRESENTS


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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 BORROWERS OF THEIR 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 Borrowers to the Bank, the Borrowers
do 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
Borrowers 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 Borrowers, 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
Borrowers 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 Borrowers, or any one of
them, 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 Borrowers, whether no 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 Electric City Corp. and
proceeds as to which a security interest has been granted by Electric City
Corp. in favor of Laurus Master Fund, Ltd. (“Laurus Collateral”).


     All of the aforesaid property and the products and proceeds therefrom,
including the proceeds of insurance thereon, other than the Laurus Collateral,
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



     5.1 Tangible Net Worth. Commencing as of the date hereof and for each
calendar quarter thereafter, Borrower’s Tangible Net Worth shall not at any
time be less than the sum of One Million Seven Hundred Fifty Thousand and
00/100 Dollars ($1,750,000.00). The term “Tangible Net Worth”


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shall mean the sum of the excess of total assets of Borrower over total
liabilities of Borrower. For purposes hereof, total assets and total
liabilities shall each be determined in accordance with GAAP consistently
applied, deducting, however, from the determination of total assets, all
prepaid expenses and all assets which would be classified as intangible assets
under GAAP including, without limitation, goodwill, patents, trademarks, trade
names, copyrights, franchises and deferred charges (such as unamortized debt
discount and expense, organization costs and deferred research and development
expense) and similar assets and excluding therefrom the write-up of assets
above cost and any and all assets created by loans to shareholders, directors,
officers, employees and agents of Borrower or Affiliates of Borrower.



     5.2 Borrowers’ Accounts. Each Borrower shall maintain all of its
operating, cash management, depository, payment, lock box, remittance and
investment accounts with Bank and shall collectively maintain balances in such
accounts as are necessary to compensate Bank for any service charges on such
accounts. Each 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.


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     IN WITNESS WHEREOF, Borrowers have caused this Note to be executed and
delivered as of the date first stated above.



	 	 	 	 	 
	 	 	ELECTRIC CITY CORP., a Delaware
corporation
	 	 	 	 	 
	 	 	
By:
	 	/s/ Jeffrey Mistarz
	 	 	 	 	

	 	 	
Its:
	 	Chief Financial Officer & Treasurer
	 	 	 	 	

	 	 	 	 	 
	 	 	GREAT LAKES CONTROLLED

ENERGY CORPORATION, a Delaware

corporation
	 	 	 	 	 
	 	 	
By:
	 	/s/ Jeffrey Mistarz
	 	 	 	 	

	 	 	
Its:
	 	Treasurer
	 	 	 	 	








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