exv10w84



 



Exhibit 10.84



THIS DOCUMENT PREPARED

BY AND WHEN RECORDED

MAIL TO:


Jeffrey A. Hechtman, Esq.

Horwood Marcus & Berk Chtd.

180 North LaSalle Street

Suite 3700

Chicago, Illinois 60601


AMENDED AND RESTATED MORTGAGE,

ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT



     THIS MORTGAGE is made as of the 30th day of September, 2003 by ELECTRIC
CITY CORP., a Delaware corporation (“Mortgagor”) with a mailing address of 1280
Landmeier Road, Elk Grove Village, Illinois, and AMERICAN CHARTERED BANK, an
Illinois state banking association, with a mailing address of 1119 East Higgins
Road, Schaumburg, Illinois 60173, Attn: William D. Provan (“Bank”).


     A. Bank has agreed to make available to Electric City Corp., a Delaware
corporation and its subsidiary, Great Lakes Controlled Energy Corporation, a
Delaware corporation (“Great Lakes”), a mortgage loan in the principal amount
of $640,000.00 evidenced by that certain Mortgage Note dated as of the date
hereof (the “Note”).


     B. TO SECURE to Bank the repayment of the indebtedness evidenced by the
Note, with interest thereon; the payment of all charges provided herein and all
other sums, with interest thereon, advanced in accordance herewith to protect
the security of this Mortgage; and the performance of the covenants and
agreements contained herein and in the Note and any other loan documents, all
future advances and all other indebtedness of Mortgagors and Great Lakes to
Bank, whether now or hereafter existing (collectively, the “Secured
Indebtedness”); and also in consideration of Ten Dollars ($10.00), the receipt
and sufficiency of which is hereby acknowledged, Mortgagor does hereby convey,
grant, mortgage and warrant to Bank and its successors and assigns, forever, in
all and singular with MORTGAGE COVENANTS, the real estate (“Real Estate”)
located in the County of Cook, State of Illinois commonly known as 1280
Landmeier Road, Elk Grove Village, Illinois and legally described on Exhibit A
attached hereto, subject only to covenants, conditions, easements and
restrictions set forth on Exhibit B, if any (“Permitted Encumbrances”).


     C. TOGETHER WITH all buildings, structures, improvements, tenements,
fixtures, easements, mineral, oil and gas rights, water rights, appurtenances
thereunto belonging, title or reversion in any parcels, strips, streets and
alleys adjoining the Real Estate, any land or vaults lying within any street,
thoroughfare, or alley adjoining the Real Estate, and any privileges, licenses,
and



 







 



 franchises pertaining thereunto, all of the foregoing now or hereafter
acquired, all leasehold estates and all rents, issues, and profits thereof, for
so long and during all such times as Mortgagor, its successors and assigns may
be entitled thereto, all the estate, interest, right, title or other claim or
demand which Mortgagor now has or may hereafter have or acquire with respect
to: (i) proceeds of insurance in effect with respect to the Property (as
hereinafter defined) and (ii) any and all awards, claims for damages,
settlements and other compensation made for or consequent upon the taking by
condemnation, eminent domain or any like proceeding, or by any proceeding or
purchase in lieu thereof, of the whole or any part of the Property, including,
without limitation, any awards and compensation resulting from a change of
grade of streets and awards and compensation for severance damages (which are
pledged primarily and on a parity with the Real Estate and not secondarily),
and all apparatus, equipment or articles now or hereafter located thereon used
to supply heat, gas, air conditioning, water, light, power, refrigeration
(whether single units or centrally controlled), and ventilation, and any other
apparatus, equipment or articles used or useful in the operation of the
property including all additions, substitutions and replacements thereof. All
of the foregoing are declared to be a part of the Real Estate whether
physically attached or not, and it is agreed that all similar apparatus,
equipment, articles and fixtures hereafter placed on the Real Estate by
Mortgagor or its successors or assigns shall be considered as constituting part
of the Real Estate. (All of the foregoing, together with the Real Estate are
hereinafter referred to as the “Property”.)


             To have and to hold the Property unto the Bank, its successors and assigns
forever, for the purposes and uses set forth herein, free from all rights and
benefits under any Homestead Exemption laws of the state in which the Property
is located, which rights and benefits Mortgagor does hereby expressly release
and waive.


             Mortgagor and Bank covenant and agree as follows:


     1. Payment of Principal and Interest. Mortgagor will promptly pay or cause to
be paid when due all Secured Indebtedness.


     2. Payment
of Taxes. Mortgagor shall pay all general and special real estate
and property taxes and assessments on the Property when due. Mortgagor will,
upon written request, furnish to Bank duplicate receipts therefor within thirty
(30) days following the date of payment. Mortgagor shall pay in full “under
protest” any tax or assessment which Mortgagor may desire to contest, in the
manner provided by law.


             2.1 Tax Deposits. Upon the occurrence of an Event of Default (as defined
herein), Mortgagor will deposit with the Bank commencing on the first day of
each month following such request or Event of Default and continuing on the
first day of each month thereafter, a sum equal to all real estate taxes and
assessments (general and special) next due upon or for the Property (the amount
of such taxes next due to be based upon the Bank’s reasonable estimate as to
the amount of taxes and assessments to be levied and assessed) reduced by the
amount, if any, then on deposit with the Bank divided by the number of months
to elapse before one (1) month prior to the date when such taxes and
assessments will become due and payable. Such deposits are to be held without
any allowance for interest to Mortgagor and are to be used for the payment of
taxes and assessments (general and special) on the Property next due and
payable when they become due.



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     If the deposited funds are insufficient to pay any such taxes or assessments
(general or special) when the same become due and payable, the Mortgagor shall,
within ten (10) days after demand therefore from the Bank, deposit such
additional funds as may be necessary to pay such taxes and assessments (general
and special) in full. If the funds so deposited exceed the amount required to
pay such taxes and assessments (general and special) for any year, the excess
will be applied to a subsequent deposit or deposits. The deposits need not be
kept separate and apart from any other funds of the Bank.


     3. Application of Payments. All payments received by Bank under this
Mortgage, the Note and all other documents given to Bank to further evidence,
secure or guarantee the Secured Indebtedness (collectively, as amended,
modified, extended or renewed, the “Loan Documents”) will be applied by Bank
first to payments required from Mortgagor to Bank under Paragraph 2, then to
any sums advanced by Bank pursuant to Paragraph 8 to protect the security of
this Mortgage, then to interest payable on the Note which may be due, and then
to principal payable on the Note (and if principal is due in installments,
application shall be to such installments in the order of their maturity,
except that any prepayments may be applied to installments in inverse order of
maturity). Any applications to principal of proceeds from insurance policies,
as provided in Paragraph 6, or of condemnation awards, as provided in Paragraph
10, will not extend or postpone the due date of any monthly installments of
principal or interest, or change the amount of such installments or of the
other charges or payments provided in the Note or other Loan Documents.


     4. Permitted Encumbrances. Mortgagor will not, without the prior written
consent of Bank, incur any additional indebtedness or create or permit to be
created or to remain, any mortgage, pledge, lien, lease, hypothecation,
encumbrance or charge on, or conditional sale or other title retention
agreement, with respect to the Property or any part thereof or income
therefrom, other than the other Loan Documents and the permitted encumbrances
listed in the Chicago Title Insurance Title Policy Number 1401 008025556.


     5. Mechanics’
Liens; Other Liens. Mortgagor will not suffer or permit any
mechanics’ lien claims to be filed or otherwise asserted against the Property,
and will promptly discharge the same if any claims for lien or any proceedings
for the enforcement thereof are filed or commenced. Except for the Permitted
Encumbrances, Mortgagor will not cause, create, suffer or otherwise permit to
exist, any lien security interest, or other encumbrance against the Property or
the other Collateral (as hereinafter defined).


     6. Insurance.


             6.1 Definitions. For purposes of this Paragraph 6:


     “Premises” means all land, improvements and fixtures.


     “Real Estate” means only the land.


             6.2 Requirements. Mortgagor, at its sole cost and expense, shall insure
and keep insured the Premises against such perils and hazards, and in such
amounts and with such limits, as Bank may from time to time require, and, in
any event, including but not limited to:


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	 	(a)
	 	Insurance of the Premises against loss or damage
by fire or other casualty on an “all-risk” form, including
demolition and increased cost of construction, debris removal
and pollution clean-up in the full replacement cost of the
Premises (including increased cost of law and ordinance
coverage), without deduction for foundations and footings (and
without co-insurance).




	 	(b)
	 	Insurance against loss or damage by flood or mud
slide in compliance with the Flood Disaster Protection Act of
1973, as amended from time to time, if the Premises are
situated in an area designated as a special flood hazard area,
in amounts equal to the full replacement value of the
Premises.




	 	(c)
	 	Insurance on the Premises against loss or damage
from an accident to and/or caused by boilers and machinery,
including but not limited to: heating apparatus, pressure
vessels, pressure pipes, electrical or air conditioning
equipment on a blanket comprehensive coverage form, in such
amount as Mortgagor shall deem advisable and as approved by
Bank. Additional provisions providing coverage for removal of
contaminated equipment and/or hazardous or toxic substances
contained within such equipment to approved disposal sites
shall be considered and obtained if required by Bank.




	 	(d)
	 	Commercial general liability insurance covering
Mortgagor ownership of and operations at the Premises
including personal injury; employee benefits liability;
products and completed operations liability; blanket
contractual liability; advertising liability; automobile
liability including owned, non-owned or hired vehicles; garage
liability and garage keeper’s legal liability; and having a
limit of not less than $2,000,000.00 on a per occurrence
basis.




	 	(e)
	 	At all times when renovations are occurring at
the Premises, Contractor’s Liability Insurance to a limit of
not less than $2,000,000.00 on a per occurrence basis covering
the Contractor’s construction operations at the Premises with
the Mortgagor and the Bank as additional insureds.




	 	(f)
	 	Such other insurance as may be reasonably requested by Bank.




	 	6.3
	 	Policy Requirements. All insurance shall:




	 	(a)
	 	be carried in companies with a Best’s rating of
A/X or better, or otherwise acceptable to Bank;




	 	(b)
	 	in form and content acceptable to Bank;




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	 	(c)
	 	provide thirty (30) days’ advance written notice
to Bank before any cancellation, adverse material modification
or notice of non-renewal;




	 	(d)
	 	to the extent limits are not otherwise specified
herein, contain deductibles which are in amounts acceptable to
Bank; and




	 	(e)
	 	provide that no claims shall be paid thereunder
without ten (10) days advance written notice to Bank.




                   6.3.1 All physical damage policies and renewals shall contain a standard
mortgage clause naming the Bank as mortgagee, which clause must expressly state
that any breach of any condition or warranty by Mortgagor will not prejudice
the rights of Bank under such insurance. All liability policies and renewals
shall name the Bank as an additional insured. No additional parties may appear
in the mortgage clause without Bank’s prior written consent. All deductibles
shall be in amounts acceptable to Bank. In the event of the foreclosure of
this Mortgage or any other transfer of title to the Premises in full or partial
satisfaction of the Secured Indebtedness, all right, title and interest of
Mortgagor in and to all insurance policies and renewals thereof then in force
will pass to the purchaser or grantee.


            6.4 Delivery of Policies. Any notice pertaining to insurance and required
pursuant to this Paragraph 6 shall be given in the manner provided in Paragraph
15. The insurance shall be evidenced by the original policy or a true and
certified copy of the original policy, or in the case of liability insurance,
by evidence of insurance on an Acord 27 form. Mortgagor shall deliver
originals of all policies and renewals, marked “paid”, (or evidence
satisfactory to Bank of the continuing coverage) to Bank at least 15 days
before the expiration of existing policies and, in any event, Mortgagor shall
deliver originals of such policies or certificates to Bank at least 15 days
before the expiration of existing policies. If Bank has not received
satisfactory evidence of such renewal or substitute insurance in the time frame
herein specified, Bank will have the right, but not the obligation, to purchase
such insurance for Bank’s interest only. Any amounts disbursed by Bank pursuant
to this Paragraph will be a part of the Secured Indebtedness and will bear
interest at the default interest rate provided in the Note (“Default Rate”).
Nothing contained in this Paragraph 6 will require Bank to incur any expense or
take any action hereunder, and inaction by Bank will never be considered a
waiver of any right accruing to Bank on account of this Paragraph 6.


            6.5 Separate Insurance. Mortgagor may not carry any separate insurance on the
Premises concurrent in kind or form with any insurance required hereunder or
contributing in the event of loss without Bank’s prior written consent, and any
policy must have attached standard non-contributing mortgagee clause, with loss
payable to Bank, and must otherwise meet all other requirements set forth
herein.


            6.6 Compliance Certificate. At Bank’s option, but not more often than
annually, Mortgagor will provide Bank with a report from an independent
insurance consultant of regional or national prominence, acceptable to Bank,
certifying that Mortgagor’s insurance is in compliance with this Paragraph 6.


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            6.7 Notice of Casualty. Mortgagor will give immediate notice of any loss to
Bank. In case of loss covered by any policies, and provided no Event of
Default exists under this Mortgage, the Note or the other Loan Documents,
Mortgagor is authorized to adjust, collect and settle all claims upon notice to
Bank and receipt of Bank’s consent, such consent not to be unreasonably
withheld. If an Event of Default exists, or Bank does not consent to
Mortgagor’s proposed adjustment, collection or settlement of the claim, or 30
days have expired from the date of notice to the Bank, Bank is authorized to
adjust, collect and settle the claim and, in such case, Mortgagor covenants to
sign upon demand, or Bank may sign or endorse on Mortgagor’s behalf, all
necessary proofs of loss, receipts, releases and other papers required by the
insurance companies to be signed by Mortgagor. Mortgagor hereby irrevocably
appoints Bank as its attorney-in-fact for the purposes set forth in the
preceding sentence. Bank may deduct from such insurance proceeds any expenses
incurred by Bank in the collection and settlement thereof, including, but not
limited to, attorneys’ and adjusters’ fees and charges.


            6.8 Application of Proceeds. If all or any part of the Premises are damaged or
destroyed by fire or other casualty or are damaged or taken through the
exercise of the power of eminent domain or other cause described in Paragraph
10, Mortgagor will promptly and with all due diligence restore and repair the
Premises in accordance with the provisions of this Paragraph 6.8. If there is
an Event of Default existing under this Mortgage or the other Loan Documents or
if the damage to the Premises totals $250,000.00 or more to repair, then at
Bank’s election, to be exercised by written notice to Mortgagor within 30 days
following Bank’s unrestricted receipt in cash or the equivalent thereof of the
net insurance proceeds of the policies required to be maintained by Mortgagor
hereunder, award or other compensation (collectively, the “Proceeds”), the
entire amount of the Proceeds will either be:


	 	(a)
	 	applied to the Secured Indebtedness in the order
and manner as Bank may elect (subject to the requirements of
the Loan Documents) or




	 	(b)
	 	made available to Mortgagor on the terms and
conditions set forth in this Paragraph to finance the cost of
restoration or repair. Bank may require that all plans and
specifications for such restoration or repair be submitted to
and approved by Bank in writing prior to commencement of the
work.




                   6.8.1 If the damage to the Premises totals less than $250,000 to repair,
then the entire amount of the Proceeds will be made available to Mortgagor on
the terms and conditions set forth in this Paragraph to finance the cost of
restoration or repair. Bank may require that all plans and specifications for
such restoration or repair be submitted to and approved by Bank in writing
prior to commencement of the work.


                   6.8.2. If the amount of the Proceeds to be made available to Mortgagor
pursuant to this Paragraph is less than the cost of the restoration or repair
as estimated by Bank at any time prior to completion thereof, Mortgagor will
cause to be deposited with Bank the amount of such deficiency within thirty
(30) days of Bank’s written request therefor (but in no event later than the
commencement of the work) and Mortgagor’s deposited funds shall be disbursed
prior to the Proceeds. If Mortgagor is required to deposit funds under this
Paragraph, the deposit of such funds is a condition precedent to Bank’s
obligation to disburse the Proceeds held by Bank hereunder and



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in the event Mortgagor fails to deposit such deficiency within said thirty (30)
days, Bank may apply the Proceeds to the Secured Indebtedness. The amount of
the Proceeds which is to be made available to Mortgagor, together with any
deposits made by Mortgagor will be held by Bank to be disbursed from time to
time to pay the cost of repair or restoration, at Bank’s option, to Mortgagor
or directly to contractors, subcontractors, material suppliers and other
persons entitled to payment in accordance with and subject to the conditions to
disbursement as Bank may impose to assure that the work is fully completed in a
good and workmanlike manner and paid for and that no liens or claims arise by
reason thereof.


                   6.8.3 Bank may require (a) evidence of the estimated cost of completion of
the restoration or repair satisfactory to Bank and (b) architect’s
certificates, waivers of lien, contractors’ sworn statements, title insurance
endorsements, plats of survey and other evidence of cost, payment and
performance acceptable to Bank. If Bank requires mechanics’ and materialmen’s
lien waivers in advance of making disbursements, such waivers will be deposited
with an escrow trustee acceptable to Bank pursuant to a construction loan
escrow agreement satisfactory to Bank. No payment made prior to final
completion of the repair or restoration may exceed ninety percent (90%) of the
value of the work performed from time to time. Bank may commingle any of the
funds held by it with its other general funds. Bank is not obligated to pay
interest in respect of the funds held by it and Mortgagor is not entitled to a
credit against any of the Secured Indebtedness except and to the extent the
funds are applied thereto pursuant to this Paragraph. Without limitation of
the foregoing, Bank has the right at all times to apply the funds to cure an
Event of Default or to perform any obligations of Mortgagor under the Loan
Documents.


            6.9 Insurance Deposits. Upon the occurrence of an Event of Default, for the
purpose of providing funds with which to pay premiums when due on all policies
of liability, fire and other hazard insurance covering the Premises, Mortgagor
will deposit with the Bank on the first day of each month a sum equal to the
Bank’s estimate of the premiums that will next become due and payable on such
policies reduced by the amount, if any, then on deposit with the Bank divided
by the number of months to elapse before one (1) month prior to the date when
such premiums become due and payable. No interest may be allowed to Mortgagor
on account of any deposit made hereunder and the deposit need not be kept
separate and apart from any other funds of the Bank.


     7. Use, Preservation and Maintenance of Property. Mortgagor will not commit
waste or permit impairment or deterioration of the Property. Mortgagor will
not allow store, treat or dispose of Hazardous Material (as defined in
Paragraph 27), nor permit the same to exist or be stored, treated or disposed
of, from or upon the Property. Mortgagor will promptly restore or rebuild any
buildings or improvements now or hereafter on the Property which may become
damaged or destroyed. Mortgagor will comply with all requirements of law or
municipal ordinances with respect to the use, operation, and maintenance of the
Property, including all environmental, health and safety laws and regulations,
and will make no material alterations in the Property, except as required by
law, without the prior written consent of Bank. Mortgagor will not grant or
permit any easements, licenses, covenants or declarations of use against the
Property.


     8. Protection of Bank’s Security. If Mortgagor fails to perform any of the
covenants and agreements contained in this Mortgage, the Note or the other Loan
Documents, or if any action or proceeding is threatened or commenced which
materially affects Bank’s interest in the Property,



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then Bank, at Bank’s option, upon notice to Mortgagor, may make such
appearances, disburse such sums, including attorneys’ fees, and take such
action as it deems expedient or necessary to protect Bank’s interest,
including: (a) making repairs; (b) paying, settling, or discharging tax liens,
mechanics’ or other liens; (c) procuring insurance; and (d) renting, operating
and managing the Property and paying operating costs and expenses, including
management fees, of every kind and nature in connection therewith, so that the
Property shall be operational and usable for its intended purposes. Bank, in
making such payments, may do so in accordance with any bill, statement, or
estimate procured from the appropriate public office without inquiry into the
accuracy of same or into the validity thereof.


                   8.1. Any amounts disbursed by Bank pursuant to this Paragraph 8 will be part of
the Secured Indebtedness and will bear interest at the Default Rate. Nothing
contained in this Paragraph 8 will require Bank to incur any expense or take
any action hereunder, and inaction by Bank will never be considered a waiver of
any right accruing to Bank.


     9. Inspection of Property and Books and Records/Mortgagor Accounts. Mortgagor
will permit Bank and its representatives and agents to inspect the Property
from time to time during normal business hours and as frequently as Bank
requests. Mortgagor must keep and maintain full and correct books and records
showing in detail the income and expenses of the Property. From time to time,
Mortgagor will permit Bank or its agents to examine and copy such books and
records at its offices or at the address identified above.


     Mortgagor 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 Mortgagor 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.


     10. Condemnation. The proceeds of any award or claim for damages, direct or
consequential, in connection with any condemnation or other taking of the
Property, or part thereof, or for conveyance in lieu of condemnation, are
hereby assigned and must be paid directly to Bank. Mortgagor hereby grants a
security interest to Bank in and to such proceeds. Bank is authorized to
collect such proceeds and, at Bank’s sole option and discretion, to apply said
proceeds either to restoration or repair of the Property or in payment of the
Secured Indebtedness. In the event the Property is restored, Bank may pay the
condemnation proceeds in accordance with its customary loan payment procedures,
and may charge its customary fee for such services.


     11. Mortgagor Not Released; Forbearance by Bank Not a Waiver; Remedies
Cumulative. Extension or other modification granted by Bank to any successor
in interest of Mortgagor of the time for payment of all or any part of the
Secured Indebtedness will not operate to release, in any manner, the liability
of the Mortgagor. Any forbearance or inaction by Bank in exercising any right
or remedy hereunder, or otherwise afforded by applicable law, will not be a
waiver of or preclude the exercise of any such right or remedy. Any acts
performed by Bank to protect the security of this Mortgage, as authorized by
Paragraph 8 or otherwise, will not be a waiver of Bank’s right to accelerate
the maturity of the Secured Indebtedness. All remedies



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provided in this Mortgage are distinct and cumulative to any other right or
remedy under this Mortgage or afforded by law or equity, and may be exercised
concurrently, independently or successively. No consent or waiver by Bank to
or of any breach or default by Mortgagor will be deemed a consent or waiver to
or of any other breach or default.


     12. Successors and Assigns Bound. The covenants and agreements contained
herein shall bind, and the rights hereunder shall inure to, the respective
heirs, executors, legal representatives, successors and assigns of Bank and
Mortgagor.


     13. Tax on Secured Indebtedness or Mortgage. In the event of the passage,
after the date of this Mortgage, of any law deducting from the value of land
for the purposes of taxation, any lien thereon, or imposing upon Bank the
obligation to pay the whole, or any part, of the taxes or assessments or
charges or liens required to be paid by Mortgagor, or changing in any way the
laws relating to the taxation of mortgages or debts as to affect the Mortgage
or the Secured Indebtedness, the entire unpaid balance of the Secured
Indebtedness will, at the option of Bank, after 10 days written notice to
Mortgagor, become due and payable; provided, however, that if, in the opinion
of Bank’s counsel, it is lawful for Mortgagor to pay such taxes, assessments or
charges, or to reimburse Bank therefore, then there will be no such
acceleration of the time for payment of the unpaid balance of the Secured
Indebtedness if a mutually satisfactory agreement for reimbursement, in
writing, is executed by Mortgagor and delivered to Bank within the period.


     14. Strict Performance. Any failure by Bank to insist upon strict performance
by Mortgagor of any of the terms and provisions of this Mortgage or of the
other Loan Documents will not be deemed to be a waiver of any of the terms or
provisions of this Mortgage or of the other Loan Documents and Bank will have
the right thereafter to insist upon strict performance by Mortgagor.


     15. Notice. Except for any notice required under applicable law to be given in
another manner, all communications provided for herein must be in writing and
will be deemed to have been given or made when delivered personally, three (3)
days after deposited in the United States mail (certified mail, postage
prepaid) or one day after deposited with a nationally recognized overnight
courier (delivery prepaid), or upon receipt of a confirmation of a facsimile
transmission, addressed as follows:



	 	 	 	 	 
	 	 	
To Bank:
	 	American Chartered Bank
	 	 	 	 	William D. Provan
	 	 	 	 	1199 East Higgins Road
	 	 	 	 	Schaumburg, Illinois 60173
	 	 	 	 	Facsimile Number: 847-517-2848
	 	 	 	 	 
	 	 	
With a copy to:
	 	Horwood Marcus & Berk Chartered
	 	 	 	 	Jeffrey A. Hechtman, Esq.
	 	 	 	 	180 North LaSalle Street, Suite 3700
	 	 	 	 	Chicago, Illinois 60601
	 	 	 	 	Facsimile Number: 312-606-3232





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To Mortgagor:
	 	Electric City Corp.
	 	 	 	 	Jeff Mistarz, CFO
	 	 	 	 	1280 Landmeier Road
	 	 	 	 	Elk Grove Village, Illinois 60007
	 	 	 	 	Facsimile Number: 847-437-4969
	 	 	 	 	 
	 	 	
With a copy to:
	 	Schwartz Cooper Greenberger & Krauss
	 	 	 	 	Andrew H. Connor, Esq.
	 	 	 	 	180 North LaSalle Street
	 	 	 	 	Suite 2700
	 	 	 	 	Chicago, Illinois 60601
	 	 	 	 	Facsimile Number: 312-782-8416





     16. Governing Law; Venue; Invalidity of Certain Provisions.


     (a) The validity, enforcement and interpretation of this Mortgage
will be governed by and construed in accordance with the laws of the
State of Illinois, without reference to the 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.
Mortgagor hereby irrevocably submits generally and unconditionally to the
exclusive jurisdiction of any local court, or any United States federal
court, sitting in the State of Illinois over any suit, action or
proceeding arising out of or relating to this Mortgage. Mortgagor hereby
irrevocably waives, to the fullest extent permitted by law, any objection
that Mortgagor 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.
Mortgagor hereby agrees and consents that, in addition to any methods of
service of process provided for under applicable law, all services of
process in any such suit, action or proceeding in any local court, or any
United States federal court, sitting in the State of Illinois, may be
made by certified or registered mail, return receipt requested, directed
to Mortgagor at its address stated herein, and service so made shall be
complete five (5) business days after the same shall have been so mailed.
Nothing herein will affect the right of Bank to serve process in any
manner permitted by law or limit the right of Bank to bring proceedings
against Mortgagor in any other court or jurisdiction. This Mortgage will
be construed and enforced according to the laws of the State of Illinois.



     (b) The whole or partial invalidity, illegality or unenforceability
of any provision hereof at any time, whether under the terms of then
applicable law or otherwise, shall not affect (i) in the case of partial
invalidity, illegality or unenforceability, the validity, legality or
enforceability of the provision at that time except to the extent of the
partial invalidity, illegality or unenforceability; or (ii) the validity,
legality or enforceability of the provision at any other time or of any
other provision hereof at that or any other time.



     17. Prohibitions on Transfer of the Property or of an Interest in Mortgagor.
It is an Event of Default (as hereinafter defined) if Mortgagor creates,
effects or consents to or suffers or permits any conveyance, sale (including an
installment sale), assignment, transfer, lien, pledge, hypothecate, mortgage,
security interest, or other encumbrance or alienation, whether by operation



10







 



of law, voluntarily or otherwise, of the Property or any part of or interest in
the Property other than a Permitted Encumbrance, without the prior written
consent of Bank (referred to as a “Prohibited Transfer”).


     18. Event of Default. Each of the following constitutes an event of default
(“Event of Default”) under this Mortgage:


     (a) Mortgagor’s failure to pay any installment of principal or
interest or any other amount required under the Note, this Mortgage or
any other Loan Document when due and payable, whether at maturity or by
acceleration or otherwise; or



     (b) Mortgagor’s failure to perform or observe any other covenant,
agreement, representation, warranty or other provision contained in the
Note, this Mortgage (other than an Event of Default described elsewhere
in this Paragraph 18) or the other Loan Documents, and such failure
continues for more than 10 days following written notice thereof given by
Bank to Mortgagor, unless the Event of Default is not capable of being
cured within 10 days, Mortgagor commences to cure the Event of Default
within said 10 days and thereafter Mortgagor diligently prosecutes the
cure of the Event of Default, in which event Mortgagor will have
additional time as is reasonably necessary, not to exceed 10 days, to
cure such Event of Default; provided, however, that the 10 day cure
period does not apply to the other subparagraphs of this Paragraph 18; or



     (c) the occurrence of any breach of any representation or warranty
contained in this Mortgage or any other Loan Document; or



     (d) the occurrence of a Prohibited Transfer; or



     (e) the entry by a court having jurisdiction of a decree or order
for relief in respect of Mortgagor in any involuntary case brought under
any bankruptcy, insolvency, debtor relief, or similar law; or if
Mortgagor, or any person in control of Mortgagor: (i) files a voluntary
petition in bankruptcy, insolvency, debtor relief or for arrangement,
reorganization or other relief under the Federal Bankruptcy Act or any
similar state or federal law; (ii) consents to or suffers the appointment
of or taking possession by a receiver, liquidator, or trustee (or similar
official) of the Mortgagor or for any part of the Property or any
substantial part of the Mortgagor’s other property; (iii) makes any
assignment for the benefit of Mortgagor’s creditors; or (iv) fails
generally to pay Mortgagor’s debts as they become due; or



     (f) the attachment, seizure, or levy of all or a substantial part of
Mortgagor’s assets; or



     (g) the dissolution or termination of existence of Mortgagor,
voluntarily or involuntarily, or the amendment or modification in any
respect of the corporate documents of Mortgagor that would or may
adversely affect Mortgagor’s performance of its obligations under the
Note, this Mortgage or the other Loan Documents; or



11







 


     (h) the occurrence of an “Event of Default” under any of the other
Loan Documents.



     19. Acceleration; Remedies. Upon the occurrence of an Event of Default, Bank
may declare all sums secured by this Mortgage and the other Loan Documents to
be immediately due and payable without further demand and may foreclose this
Mortgage by judicial proceeding. Bank will be entitled to collect in such
proceeding all expenses of foreclosure, including, but not limited to,
attorneys’ fees and costs including abstracts and title reports, all of which
will become a part of the Secured Indebtedness and immediately due and payable,
with interest at the Default Rate. The proceeds of any foreclosure sale of the
Property will be applied first to all costs, expenses and fees incident to the
foreclosure proceedings, then as set forth in Paragraph 3 of this Mortgage and
last, to Mortgagor.


     20. Assignment of Leases and Rents. In order to further secure payment of the
Secured Indebtedness and the observance, performance and discharge of the
Obligations, Mortgagor hereby absolutely and irrevocably assigns and transfers
to Bank and grants Bank a security interest in all of Mortgagor’s right, title
and interest in and to the Leases listed on Exhibit C and all present and
future leases affecting the Property (collectively, “Leases”) and all rents,
income, receipts, revenues, issues, avails and profits from or arising out of
the Property (collectively, “Rents”), subject only to the Permitted
Encumbrances. Mortgagor hereby appoints Bank its true and lawful
attorney-in-fact, with the right, at Bank’s option at any time, to demand,
receive and enforce payment, to give receipts, releases and satisfactions, and
to sue, either in Mortgagor’s or Bank’s name, for all Rents. Notwithstanding
the foregoing assignment of Leases and Rents, so long as no Event of Default
has occurred which remains uncured, Mortgagor has license to collect Rents
(such license to be deemed revoked upon the occurrence of an Event of Default)
provided that the existence or exercise of such right of Mortgagor does not
operate to subordinate this assignment to any subsequent assignment, in whole
or in part, by Mortgagor, and any subsequent assignment by Mortgagor shall be
subject to the rights of the Bank hereunder. This Assignment may not be deemed
or construed to constitute Bank as a mortgagee in possession nor obligate Bank
to take any action or to incur expenses or perform or discharge any obligation,
duty or liability. Exercise of any rights under this Paragraph and the
application of the Rents to the Secured Indebtedness shall not cure or waive
any Event of Default.


     If Mortgagor, as Lessor, neglects or refuses to perform and keep all of
the covenants and agreements contained in the Lease or Leases, then Bank may
perform and comply with any such Lease covenants and agreements. All related
costs and expenses incurred by the Bank will become a part of the Secured
Indebtedness and will be due and payable upon demand by Bank with interest
thereon accruing thereafter at the Default Rate.


     21. Appointment of Receiver. Upon acceleration under Paragraph 19 or
abandonment of the Property, and without further notice to Mortgagor, Bank will
be entitled to have a receiver appointed by a court to enter upon, take
possession of and manage the Property and to collect the Rents including those
past due. The receiver will have the power to collect the Rents from the time
of acceleration through the pendency of any foreclosure proceeding and during
the full statutory period of redemption, if any. All Rents collected by the
receiver will be applied as the appointing court may direct and, in the absence
of such direction, first to payment of the costs and expenses of



12







 



the management of the Property and collection of rents, including, but not
limited to, receiver’s fees, premiums on receiver’s bonds and attorneys’ fees,
and then as provided in Paragraph 3. The receiver will be liable to account
only for those Rents actually received.


     22. Release. Upon payment of all Secured Indebtedness, Bank will release this
Mortgage upon payment by Mortgagor of all costs and fees to release same, if
any. Mortgagor will be responsible for recording the release, including all
related costs of recordation.


     23. Security Agreement. Without limiting any other provisions of this
Mortgage, this Mortgage constitutes a Security Agreement under the Illinois
Uniform Commercial Code, 810 ILCS 5/1-101 et seq., as in effect from time to
time (herein called the “Code”) with respect to all fixtures and all
replacements, substitutions, accessions, extensions, additions, improvements,
betterments and renewals to any of the foregoing, and all proceeds thereof, now
or hereafter located on the Property as set forth in the description of the
Property above (as those terms are defined in the Code), including, but not
limited to, the air-conditioning, heating, gas, water, power, light, and
ventilation systems which are presently located at the Property, and with
respect to all funds and other sums which may be deposited with Bank pursuant
hereto (all for the purposes of this paragraph called “Collateral”), and
Mortgagor hereby grants to Bank a security interest in the Collateral. All of
the terms, provisions, conditions and agreements contained in this Mortgage
pertain and apply to the Collateral as fully and to the same extent as to any
other property comprising the Property. This Mortgage is a self-operative
security agreement but Mortgagor agrees to execute and deliver on demand
security agreements, financing statements, control agreements and other
instruments as Bank may request in order to perfect its security interest or to
impose the lien hereof more specifically upon any of such property and
authorizes Bank to execute and file the same on behalf of Mortgagor. Bank will
have all the rights and remedies in addition to those specified herein of a
secured party under the Code. Any Code requirement for reasonable notice shall
be met if such notice is delivered as provided herein at least 10 days prior to
the time of any sale, disposition, or other event or matter giving rise to the
notice (which period of time and method of notice is agreed to be commercially
reasonable).


     24. Collateral Protection Act. Pursuant to the requirements of the Illinois
Collateral Protection Act, Mortgagor is hereby notified as follows:


     Unless the Mortgagor provides the Bank with evidence of the insurance
coverage required by this Mortgage or any of the other Loan Documents, Bank may
purchase insurance at Mortgagor’s expense to protect Bank’s interest in the
Property or any other collateral for the Secured Indebtedness. This insurance
may, but need not protect Mortgagor’s interests. The coverage the Bank
purchases may not pay any claim that Mortgagor makes or any claim that is made
against Mortgagor in connection with the Property or any other collateral for
the Secured Indebtedness. Mortgagor may later cancel any insurance purchased
by Bank but only after providing Bank with evidence that Mortgagor has obtained
insurance as required by this Mortgage. If Bank purchases insurance for the
Property or any other collateral for the Secured Indebtedness, Mortgagor will
be responsible for the costs of that insurance, including interest in any other
charges that Bank may lawfully impose in connection with the placement of the
insurance, until the effective date of the cancellation or expiration of the
insurance. The costs of the insurance may be added to the total



13







 



outstanding indebtedness. The costs of the insurance may be more than the cost
of insurance that Mortgagor may be able to obtain on its own.


     25. Additional Advances. This Mortgage is given, to secure not only presently
existing Secured Indebtedness under the Loan Documents, but also future
advances, whether such advances are obligatory or to be made at the option of
the Bank or otherwise, as are made within two (2) years from the date hereof,
to the same extent as if such future advances were made on the date of the
execution of this Mortgage, although there may be no advance made at the time
of execution of this Mortgage and although there may be no indebtedness secured
hereby outstanding at the time any advance is made. The lien of this Mortgage
will be valid as to the Secured Indebtedness, including future advances, from
the time of its filing for record in the recorder’s office of the county in
which the Property is located. The total amount of indebtedness secured hereby
may increase or decrease from time to time, but the total unpaid principal
balance of indebtedness secured hereby (including disbursements that the Bank
may, but is not obligated to, make under this Mortgage, the Loan Documents, or
any other document with respect thereto) at any one time outstanding may be
substantially less but shall not exceed $640,000.00, plus interest thereon, and
any disbursements made for payment of taxes, special assessments, or insurance
on the Property and interest on such disbursements, and all disbursements by
Bank pursuant to 735 ILCS 5/15-1302(b)(5) (all such Secured Indebtedness being
hereinafter referred to as the maximum amount secured hereby). This Mortgage
will be valid and have priority to the extent of the maximum amount secured
hereby over all subsequent liens and encumbrances, including statutory liens,
excepting solely taxes and assessments levied on the Property given priority by
law.


     26. Business Loan. Mortgagor hereby represents and warrants
that:


             (a) the proceeds of this 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) this loan constitutes a “business loan” within the purview of that
Section;


             (c) this loan is a transaction exempt from the Truth in Lending Act, 15
U.SC? 1601, et seq.; and


             (d) the proceeds of the Secured Indebtedness 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.


     27. Environmental Compliance.


             27.1 Definitions. For purposes of this Paragraph:


             (a) “Premises” means the Real Estate including improvements presently and
hereafter situated thereon or thereunder, construction material used in such
improvements, surface and subsurface soil and water, areas leased to tenants,
and all business, uses and operations thereon.


14







 


             (b) “Environmental Laws” means (i) any present or future federal statute,
law, code, rule, regulation, ordinance, order, standard, permit, license,
guidance document or requirement (including consent decrees, judicial decisions
and administrative orders) together with all related amendments, implementing
regulations and reauthorizations, pertaining to the protection, preservation,
conservation or regulation of the environment, including, but not limited to:
the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601 et seq. (“CERCLA”); the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq. (“RCRA”); the Toxic Substances Control Act,
15 U.S.C. Section 2601 et seq. (“TOSCA”); the Clean Air Act, 42 U.S.C. Section
7401 et seq.; and the Clean Water Act, 33 U.S.C. Section 1251 et seq.; and (ii)
any present or future state or local statute, law, code, rule, regulation,
ordinance, order, standard, permit, license or requirement (including consent
decrees, judicial decisions and administrative orders) together with all
related amendments, implementing regulations and reauthorizations, pertaining
to the protection, preservation, conservation or regulation of the environment.


             (c) “Hazardous Material” means (but shall not include materials and
supplies stored and used in compliance with Environmental Laws):


                             (i) “hazardous substances” as defined by CERCLA;


                             (ii) “hazardous wastes”, as defined by RCRA;


                             (iii) “hazardous substances”, as defined by the Clean Water Act;


                             (iv) any item which is banned or otherwise regulated pursuant to TOSCA;


                             (v) any item which is regulated by the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. 136 et seq.;


                             (vi) any item which triggers any thresholds regulated by or invoking any
provision of the Emergency Planning and Community Right-To-Know Act, 42 U.S.C.
11001 et seq.;


                             (vii) any hazardous, dangerous or toxic chemical, material, waste,
pollutant, contaminant or substance (“pollutant”) within the meaning of any
Environmental Law prohibiting, limiting or otherwise regulating the use,
exposure, release, emission, discharge, generation, manufacture, sale,
transport, handling, storage, treatment, reuse, presence, disposal or recycling
of such pollutant;


                             (viii) any petroleum, crude oil or fraction thereof;


                             (ix) any radioactive material, including any source, special nuclear or
by-product material as defined at 42 U.S.C. Section 2011 et seq., and
amendments thereto and reauthorizations thereof;


15







 


                             (x) asbestos-containing materials in any form or condition; and


                             (xi) polychlorinated biphenyls (“PCBs”) in any form or condition.


             (d) “Environmental Actions” means:


                             (i) any notice of violation, complaint, claim, citation, demand, inquiry,
report, action, assertion of potential responsibility, lien, encumbrance, or
proceeding regarding the Premises, whether formal or informal, absolute or
contingent, matured or unmatured, brought or issued by any governmental unit,
agency, or body, or any person or entity respecting: (a) Environmental Laws;
(b) the environmental condition of the Premises, or any portion thereof, or any
property near the Premises, including actual or alleged damage or injury to
humans, public health, wildlife, biota, air, surface or subsurface soil or
water, or other natural resources; or (c) the use, exposure, release,
emission, discharge, generation, manufacture, sale, transport, handling,
storage, treatment, reuse, presence, disposal or recycling of Hazardous
Material either on the Premises or off-site.


                             (ii) any violation or claim of violation by Mortgagor of any Environmental
Laws whether or not involving the Premises;


                             (iii) any lien for damages caused by, or the recovery of any costs
incurred by any person or governmental entity for the investigation,
remediation or cleanup of any release or threatened release of Hazardous
Material; or


                             (iv) the destruction or loss of use of property, or the injury, illness or
death of any officer, director, employee, agent, representative, tenant or
invitee of Mortgagor or any other person alleged to be or possibly to be,
arising from or caused by the environmental condition of the Premises or the
release, emission or discharge of Hazardous Materials from the Premises.


             27.2 Representations and Warranties. Mortgagor hereby represents and warrants
to Bank that:


             (a) Compliance. To the best of Mortgagor’s knowledge based on all
appropriate and thorough inquiry and except as described in Exhibit D hereto,
the Premises and Mortgagor have been and are currently in compliance with all
Environmental Laws. There have been, to the best of Mortgagor’s knowledge
based on all appropriate and thorough inquiry, no past, and there are no
pending or threatened, Environmental Actions to which Mortgagor is a party or
which relate to the Premises. All required governmental permits and licenses
are in effect, and Mortgagor is in compliance therewith. Mortgagor has not
received any notice of any Environmental Action respecting Mortgagor, the
Premises or any off-site facility to which has been sent any Hazardous Material
for off-site treatment, recycling, reclamation, reuse, handling, storage, sale
or disposal.


             (b) Absence of Hazardous Material. No use, exposure, release, emission,
discharge, generation, manufacture, sale, handling, reuse, presence, storage,
treatment, transport, recycling or disposal of Hazardous Material has, to the
best of Mortgagor’s knowledge based on all



16







 



appropriate and thorough inquiry, occurred or is occurring on or from the
Premises except in compliance with Environmental Laws and as described in
Exhibit E hereto (“Disclosed Material”). The term “released” may include, but
is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the
environment (including the abandonment or discarding of barrels, containers and
other receptacles containing any Hazardous Material). To the best of
Mortgagor’s knowledge based on all appropriate and thorough inquiry, all
Hazardous Material used, treated, stored, transported to or from, generated or
handled on the Premises has been disposed of on or off the Premises in a lawful
manner. To the best of Mortgagor’s knowledge based on all appropriate and
thorough inquiry, no environmental, public health or safety hazards currently
exist with respect to the Premises. To the best of Mortgagor’s knowledge based
on all appropriate and thorough inquiry, no underground storage tanks
(including, but not limited to, petroleum or heating oil storage tanks) are
present on or under the Premises, or have been on or under the Property except
as has been disclosed in writing to Bank (“Disclosed Tanks”).


             27.3 Mortgagor’s Covenants. Mortgagor hereby covenants and agrees with Bank as
follows:


             (a) Compliance. The Premises and Mortgagor comply with all Environmental
Laws. All required governmental permits and licenses will be obtained and
maintained, and Mortgagor will comply with them. All Hazardous Material on the
Premises will be disposed of in a lawful manner without giving rise to
liability under any Environmental Laws. Mortgagor will satisfy all
requirements of applicable Environmental Laws for the registration, operation,
maintenance, closure and removal of all underground storage tanks on the
Premises, if any. Without limiting the foregoing, all Hazardous Material will
be handled in compliance with all applicable Environmental Laws.


             (b) Absence of Hazardous Material. Other than Disclosed Material, no
Hazardous Material will be introduced to or used, exposed, released, emitted,
discharged, generated, manufactured, sold, transported, handled, stored,
treated, reused, presented, disposed of or recycled on the Premises without 30
days’ prior written notice to Bank.


             (c) Environmental Actions and Right to Consent. Mortgagor will
immediately notify Bank of all Environmental Actions and provide copies of all
written notices, complaints, correspondence and other documents relating
thereto within two (2) business days of receipt, and Mortgagor will keep Bank
informed of all responses thereto. Mortgagor will promptly cure and have
dismissed with prejudice all Environmental Actions in a manner satisfactory to
Bank and Mortgagor will keep the Premises free of any encumbrance arising from
any judgment, liability or lien imposed pursuant to any Environmental Actions.
Notwithstanding the foregoing sentence, Mortgagor may, diligently, in good
faith and by appropriate legal proceedings, contest such proceedings provided:
(1) Mortgagor first furnishes to Bank such deposits or other collateral as
Bank, in its sole discretion, deems sufficient to fully protect Bank’s
interests; (2) such contest will have the effect of preventing any threatened
or pending sale or forfeiture of all or any portion of the Premises or the loss
or impairment of Bank’s lien and security interests in and to the Premises; and
(3) such contest will not cause Bank to incur any liability, in Bank’s sole
judgment. Mortgagor will



17







 



permit Bank, at Bank’s option, to appear in and to be represented in any such
contest and will pay upon demand all expenses incurred by Bank in so doing,
including attorneys’ fees.


             (d) Future Environmental Audits. Mortgagor will provide such information
and certifications which Bank may reasonably request from time to time to
monitor Mortgagor’s compliance with this Article for the sole purpose of
protecting Bank’s security interest. To protect its security interest, Bank
will have the right, but not the obligation, at any time upon reasonable prior
notice and without unreasonable interference with any tenant’s business to
enter upon the Premises, take samples, review Mortgagor’s books and records,
interview Mortgagor’s employees and officers, and conduct such other activities
as Bank, at its sole discretion, deems appropriate. Mortgagor will cooperate
fully in the conduct of such an audit. If Bank decides to conduct such an
audit because of: (1) an Environmental Action; (2) Bank’s considering taking
possession of or title to the Premises after an Event of Default by Mortgagor;
(3) a material change in the use of the Premises, which in Bank’s opinion,
increases the risk to its security interest due to an Environmental Action; or
(4) the introduction of Hazardous Material other than Disclosed Material to the
Premises other than as permitted by this Mortgage; then Mortgagor will pay upon
demand all costs and expenses connected with such audit, which, until paid,
will become additional indebtedness secured by the Loan Documents and will bear
interest at the Default Rate. Nothing in this Article may give or be construed
as giving Bank the right to direct or control Mortgagor’s actions in complying
with Environmental Laws.


             (e) Event of Default and Opportunity to Cure. If Mortgagor fails to
comply with any of its covenants contained in this Section 27 within 30 days
after notice by Bank to Mortgagor, Bank may, at its option, declare an Event of
Default. If, however, the noncompliance cannot, in Bank’s reasonable
determination, be corrected within the 30-day period, and if Mortgagor has
promptly commenced and diligently pursues action to cure such noncompliance to
Bank’s reasonable satisfaction, then Mortgagor will have such additional time
as is reasonably necessary to correct such noncompliance, provided Mortgagor
continues to diligently pursue corrective action, but in no event more than a
total of 60 days after the initial notice of noncompliance by Bank.


             (f) Governmental Actions. There are no pending or threatened: (1)
actions or proceedings from any governmental agency or any other entity
regarding the condition or use of the Property, or regarding any environmental,
health or safety law; or (2) “superliens” or similar governmental actions or
proceedings that could impair the value of the Property, or the priority of the
lien of this Mortgage or any of the other Loan Documents (collectively
“Environmental Proceedings”). Mortgagor will promptly notify Bank of any
notices, or other knowledge obtained by Mortgagor hereafter of any pending or
threatened Environmental Proceedings, and Mortgagor will promptly cure and have
dismissed with prejudice any such Environmental Proceedings to the satisfaction
of Bank.


             (g) Fees; Costs. Any fees, costs and expenses imposed upon or incurred by
Bank on account of any breach of this Section 27 will be immediately due and
payable by Mortgagor to Bank upon demand, and will (together with interest
thereon at the Default Rate accruing from the date such fees, costs and
expenses are so imposed upon or incurred by Bank) become part of the Secured
Indebtedness. Mortgagor will keep, save and protect, defend,



18







 



indemnify and hold Bank harmless from and against any and all claims, loss,
cost, damage, liability or expense, including reasonable attorneys’ fees,
sustained or incurred by Bank by reason of any Environmental Proceedings or the
breach or default by Mortgagor of any representation, warranty or covenant
contained in this Paragraph.


             27.4 Bank’s Right to Rely. Bank is entitled to rely upon Mortgagor’s
representations, warranties and covenants contained in this Article despite any
independent investigations by Bank or its consultants. The Mortgagor will take
all necessary actions to determine for itself, and to remain aware of, the
environmental condition of the Premises. Mortgagor will have no right to rely
upon any independent environmental investigations or findings made by Bank or
its consultants unless otherwise stated in writing therein and agreed to in
writing by Bank.


             27.5 Indemnification. The term “Bank’s Environmental Liability” will mean any
and all losses, liabilities, obligations, penalties, claims, fines, demands,
litigation, defenses, costs, judgments, suits, proceedings, damages (including
consequential, punitive and exemplary damages), disbursements or expenses of
any kind or nature whatsoever (including reasonable attorneys’ fees at trial
and appellate levels and experts’ fees and disbursements and expenses incurred
in investigating, defending against, settling or prosecuting any suit,
litigation, claim or proceeding) which may at any time be either directly or
indirectly imposed upon, incurred by or asserted or awarded against Bank or any
of Bank’s parent and subsidiary corporations and their affiliates,
shareholders, directors, officers, employees, and agents (collectively Bank’s
“Affiliates”) in connection with or arising from:


             (a) any Hazardous Material used, exposed, emitted, released, discharged,
generated, manufactured, sold, transported, handled, stored, treated, reused,
presented, disposed of or recycled on, in or under all or any portion of the
Premises, or any surrounding areas;


             (b) any misrepresentation, inaccuracy or breach of any warranty, covenant
or agreement contained or referred to in this Section 27;


             (c) any violation, liability or claim of violation or liability, under any
Environmental Laws;


             (d) the imposition of any lien for damages caused by, or the recovery of
any costs incurred for the cleanup of, any release or threatened release of
Hazardous Material; or


             (e) any Environmental Actions.


                     27.5.1.1 Mortgagor shall indemnify, defend (at trial and appellate levels
and with counsel, experts and consultants acceptable to Bank and at Mortgagor’s
sole cost) and hold Bank and its Affiliates free and harmless from and against
Bank’s Environmental Liability (collectively, “Mortgagor’s Indemnification
Obligations”). Mortgagor’s Indemnification Obligations shall survive in
perpetuity with respect to any Bank’s Environmental Liability.


19







 


                     27.5.1.2 Mortgagor and its successors and assigns hereby waive, release
and agree not to make any claim or bring any cost recovery action against Bank
under or with respect to any Environmental Laws. Mortgagor’s obligation to Bank
under this indemnity shall likewise be without regard to fault on the part of
Mortgagor or Bank with respect to the violation or condition which results in
liability to Bank.


     28. Compliance with Illinois Mortgage Foreclosure Law. If any provision in
this Mortgage is inconsistent with any provision of the Illinois Mortgage
Foreclosure Law (735 ILCS 5/15-1101 et. seq. of the Illinois Compiled Statutes)
(the “Act”) the provisions of the Act will take precedence over the Mortgage
provisions, but will not invalidate or render unenforceable any other Mortgage
provision that can be construed in a manner consistent with the Act. If any
Mortgage provision grants to Bank any rights or remedies upon Mortgagor’s
default which are more limited than the rights that would otherwise be vested
in Bank under the Act in the absence of the provision, Bank will be vested with
the rights granted in the Act to the full extent permitted by law. Without
limiting the generality of the foregoing, all expenses incurred by Bank to the
extent reimbursable under Sections 15-1510 and 15-1512 of the Act, whether
incurred before or after any decree or judgment of foreclosure, and whether or
not enumerated in Paragraph 19 of this Mortgage, will be added to the Secured
Indebtedness secured by this Mortgage or by the judgment of foreclosure.


     29. Interpretation. This Mortgage will be construed pursuant to the laws of
the State of Illinois. The headings of sections and paragraphs in this
Mortgage are for convenience only and may not be construed in any way to limit
or define the content, scope, or intent of the provisions. The use of singular
and plural nouns, and masculine, feminine, and neuter pronouns, are fully
interchangeable, where the context so requires. If any provision of this
Mortgage, or any paragraph, sentence, clause, phrase or word, or the
application thereof, in any circumstances, is adjudicated to be invalid, the
validity of the remainder of this Mortgage will be construed as if such invalid
part were never included. Time is of the essence of the payment and
performance of this Mortgage. This Mortgage may be executed in counterparts
which, when taken together, shall constitute a whole.


     30. Waiver of Right of Redemption. To the full extent permitted by law,
Mortgagor hereby covenants and agrees that it will not at any time insist upon
or plead, or in any manner whatsoever claim or take any advantage of, any stay,
exemption or extension law or any so-called “Moratorium Law” now or at any time
hereafter in force, nor claim, take or insist upon any benefit or advantage of
or from any law now or hereafter in force providing for the valuation or
appraisement of the Property, or any part thereof, prior to any sale or sales
thereof to be made pursuant to any provisions herein contained, or to any
decree, judgment or order of any court of competent jurisdiction; or after such
sale or sales claim or exercise any rights under any statute now or hereafter
in force to redeem the property so sold, or any part thereof, or relating to
the marshalling thereof, upon foreclosure sale or other enforcement hereof. To
the full extent permitted by law, Mortgagor hereby expressly waives any and all
rights of redemption, on its own behalf, on behalf of all persons claiming or
having an interest (direct or indirect) by, through or under Mortgagor and on
behalf of each and every person acquiring any interest in or title to the
Property subsequent to the date hereof, it being the intent hereof that any and
all such right of redemption of Mortgagor, and of all other persons, are and
will be deemed to be hereby waived to the full extent



20







 



permitted by applicable law. To the full extent permitted by law, Mortgagor
agrees that it will not, by involving or utilizing any applicable law or laws
or otherwise, hinder, delay or impede the exercise of any right, power or
remedy herein or otherwise granted or delegated to Bank, but will suffer and
permit the exercise of every such right, power and remedy as though no such law
or laws have been or will have been made or enacted. To the full extent
permitted by law, Mortgagor hereby agrees that no action for the enforcement of
the lien or any provision hereof will be subject to any defense which would not
be good and valid in an action at law upon the Note.


     31. Tangible Net Worth. Commencing as of the date hereof and for each calendar
quarter thereafter, Mortgagor’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” shall mean the sum of
the excess of total assets of Mortgagor over total liabilities of Mortgagor.
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 Mortgagor or Affiliates of Mortgagor.


     32. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY LAW, MORTGAGOR DOES
HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS OF THE BANK UNDER THIS MORTGAGE, THE NOTE, OR ANY
OF THE LOAN DOCUMENTS, OR RELATING THERETO OR ARISING THEREFROM AND AGREES THAT
ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.


21







 


     IN WITNESS WHEREOF, Mortgagor has executed this Mortgage.



	 	 	 	 
	 	
ELECTRIC CITY CORP., a Delaware corporation
	 
	 	By:

Name:

Its:	 	
/s/ Jeffrey Mistarz



Jeffrey Mistarz



Chief Financial Officer








22







 



			
	STATE OF ILLINOIS

COUNTY OF COOK	 	
)

) SS.

)





     I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that                                         , personally
known to me to be the                                          of Electric City Corp., a Delaware
corporation, appeared before me this day in person and acknowledged that as
such duly authorized member of the company, he signed and delivered the said
instrument as his free and voluntary act, and as the free and voluntary act and
deed of said corporation, for the uses and purposes therein set forth.


     Given under my hand and official seal this                day of September, 2003.



	 	 	 	 
	 	

Notary Public	 
	 	 	 
	 	My commission expires:	 	 
	 	 	 	















 


EXHIBIT A



LOT 9 IN GULLO INTERNATIONAL CONTEMPORARY PARK, BEING A RESUBDIVISION OF LOT
230 IN HIGGINS INDUSTRIAL PARK UNIT 165, BEING A SUBDIVISION IN THE SE 1/4 OF
SECTION 27, TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN
(EXCEPTING THEREFROM THE NORTH 220.00 FEET OF THE EAST 420.00 FEET) IN COOK
COUNTY, ILLINOIS.











 


EXHIBIT B



PERMITTED ENCUMBRANCES



	1.
	 	GENERAL REAL ESTATE TAXES FOR THE SECOND INSTALLMENT OF THE
YEAR 2003.




	2.
	 	COVENANTS AND RESTRICTIONS (BUT OMITTING ANY SUCH COVENANT OR
RESTRICTION BASED ON RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAL
STATUS OR NATIONAL ORIGIN UNLESS AND ONLY TO THE EXTENT THAT SAID
COVENANT (A) IS EXEMPT UNDER CHAPTER 42, SECTION 3607 OF THE UNITED
STATES CODE OR (B) RELATES TO HANDICAP BUT DOES NOT DISCRIMINATE
AGAINST HANDICAPPED PERSONS), RELATING TO BUILDING TYPE, LOADING
DOCKS, OFF-STREET AUTOMOBILE PARKING, CONSTRUCTION, LANDSCAPING,
WATER TOWERS, WATER TANK, STAND PIPES, PENTHOUSES, ELEVATORS AND
SIMILAR EQUIPMENT, EASEMENTS, STORAGE YARDS FOR EQUIPMENT, THAT THE
LAND SHALL NOT BE USED AS A DUMPING GROUND AND HEIGHT OF FENCES,
WALL, SHRUBS, PLANTS OR TREES, LOCATION OF BUILDINGS, SIDEWALKS AND
HEIGHT OF EQUIPMENT CONTAINED IN THE DEED RECORDED AUGUST 6, 1980 AS
DOCUMENT NO. 25538654, WHICH DOES NOT CONTAIN A REVERSIONARY OR
FORFEITURE CLAUSE.




	3.
	 	BUILDING LINE OVER THE NORTH 25 FEET, SOUTHWESTERLY 25 FEET
AND WESTERLY 25 FEET OF LOT 230, AS SHOWN ON THE PLAT OF SUBDIVISION
RECORDED DECEMBER 16, 1974 AS DOCUMENT 22937292.




	4.
	 	EASEMENT OVER THE NORTH 25 FEET, THE WESTERLY 25 FEET AND THE
SOUTHWESTERLY 25 FEET OF LOT 230 FOR UNDERGROUND PUBLIC UTILITIES,
SEWER, WATER AND DRAINAGE PURPOSES, AS SHOWN ON THE PLAT OF
SUBDIVISION RECORDED DECEMBER 16, 1974 AS DOCUMENT 22937292.




	5.
	 	EASEMENT IN FAVOR OF NORTHERN ILLINOIS GAS COMPANY, THE
ILLINOIS BELL TELEPHONE COMPANY AND THE COMMONWEALTH EDISON COMPANY,
AND ITS/THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, TO INSTALL, OPERATE
AND MAINTAIN ALL EQUIPMENT NECESSARY FOR THE PURPOSE OF SERVING THE
LAND AND OTHER PROPERTY, TOGETHER WITH THE RIGHT OF ACCESS TO SAID
EQUIPMENT, AND THE PROVISIONS RELATING THERETO CONTAINED IN THE PLAT
RECORDED/FILED AS DOCUMENT NO. 22937292,












 


	 
	 	AFFECTING THE NORTH 25 FEET, THE WESTERLY 25 FEET, THE
SOUTHWESTERLY 25 FEET AND THE EAST 10 FEET OF LOT 230.




	6.
	 	25 FOOT BUILDING LINE AS SHOWN ON THE PLAT OF GULLO
INTERNATIONAL CONTEMPORARY PARK SUBDIVISION RECORDED MAY 16, 1984 AS
DOCUMENT 27088665, OVER THE SOUTHERLY LINE OF THE LAND.




	7.
	 	EASEMENT FOR UNDERGROUND PUBLIC UTILITIES, SEWER, WATER,
DRAINAGE AND CABLE TV, AS SHOWN ON THE PLAT OF SUBDIVISION AFORESAID
RECORDED AS DOCUMENT 27088665, OVER THE SOUTHERLY 25 FEET AND THE
NORTH 10 FEET OF THE LAND.




	8.
	 	EASEMENT IN FAVOR OF THE ILLINOIS BELL TELEPHONE COMPANY, THE
COMMONWEALTH EDISON COMPANY AND NORTHERN ILLINOIS GAS COMPANY, AND
ITS/THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, TO INSTALL, OPERATE AND
MAINTAIN ALL EQUIPMENT NECESSARY FOR THE PURPOSE OF SERVING THE LAND
AND OTHER PROPERTY, TOGETHER WITH THE RIGHT OF ACCESS TO SAID
EQUIPMENT, AND THE PROVISIONS RELATING THERETO CONTAINED IN THE PLAT
RECORDED/FILED AS DOCUMENT NO. 27088665, AFFECTING THE SOUTHERLY 25
FEET AND THE NORTH 10 FEET OF THE LAND.












 


EXHIBIT C



IDENTIFIED LEASES



None.










 


EXHIBIT D



COMPLIANCE EXCEPTIONS



     All matters set forth in that certain Phase I Environmental Site
Assessment performed by STS Consultants dated April 24, 2002.










 


EXHIBIT E



DISCLOSED MATERIALS



     All matters set forth in that certain Phase I Environmental Site
Assessment performed by STS Consultants dated April 24, 2002.