exv10w1







Exhibit 10.1




PROMISSORY NOTE




$2,115,775.00




October 31, 2008




Applied Energy Management, Inc.

16810 Kenton Drive, Suite 201

Huntersville, North Carolina 28078

(Hereinafter referred to as “Borrower”)




Wachovia Bank, National Association

Charlotte, North Carolina 28202

(Hereinafter referred to as “Bank”)




Borrower promises to pay to the order of Bank, in lawful money of the United States of America by
mailing to the address specified hereinafter or wherever else Bank may specify, the sum of Two
Million, One Hundred Fifteen Thousand, Seven Hundred Seventy-Five and No/100 Dollars
($2,115,775.00) or such sum as may be advanced and outstanding from time to time, with interest on
the unpaid principal balance at the rate and on the terms provided in this Promissory Note
(including all renewals, extensions or modifications hereof, this “Note”).



RENEWAL/MODIFICATION. This Promissory Note renews, extends and/or modifies that certain Promissory
Note dated June 10, 2008, in the original amount of $2,115,775.00, as renewed and/or extended from
time to time (the “Original Promissory Note”). This Promissory Note is not a novation.



TERMINATION OF LOAN AGREEMENT. The Loan Agreement between Bank and Borrower dated June 10, 2008, as
modified from time to time, is hereby terminated and of no further force or effect.



LINE OF CREDIT. Borrower may borrow, repay and reborrow, and, upon the request of Borrower, Bank
shall advance and readvance under this Note from time to time until the maturity hereof (each an
“Advance” and together the “Advances”), so long as the total principal balance outstanding under
this Note at any one time does not exceed the principal amount stated on the face of this Note,
subject to the limitations described in any loan agreement to which this Note is subject. Bank’s
obligation to make Advances under this Note shall terminate if As of the date of each proposed
Advance, Borrower shall be deemed to represent that each representation made in the Loan Documents
is true as of such date.



If Borrower subscribes to Bank’s cash management services and such services are applicable to this
line of credit, the terms of such service shall control the manner in which funds are transferred
between the applicable demand deposit account and the line of credit for credit or debit to the
line of credit.



USE OF PROCEEDS. Borrower shall use the proceeds of the loan(s) evidenced by this Note for the
commercial purposes of Borrower, as follows: for working capital.



SECURITY. Stephen Glick has granted or will grant Bank a security interest in the collateral
described in the Loan Documents and such other security instruments as are executed from time to
time, including, but not limited to, personal property collateral described in that certain
Security Agreement, dated June 10, 2008, as modified, restated or replaced from time to time.



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INTEREST RATE. Interest shall accrue on the unpaid principal balance of this Note from the date
hereof at the Bank’s Prime Rate, as that rate may change from time to time in accordance with
changes in the Bank’s Prime Rate (“Interest Rate”). “Bank’s Prime Rate” means that rate announced
by Bank from time to time as its prime rate and is one of several interest rate bases used by Bank.
Bank lends at rates both above and below Bank’s Prime Rate, and Borrower acknowledges that Bank’s
Prime Rate is not represented or intended to be the lowest or most favorable rate of interest
offered by Bank.



DEFAULT RATE. In addition to all other rights contained in this Note, if a Default (as defined
herein) occurs and as long as a Default continues, all outstanding Obligations, other than
Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to
time) between Borrower and Bank or its affiliates, shall bear interest at the Interest Rate plus 3%
(“Default Rate”), except if the Note is governed by the laws of the State of North Carolina and the
original principal amount is less than or equal to $300,000.00. The Default Rate shall also apply
from acceleration until the Obligations or any judgment thereon is paid in full.



INTEREST AND FEE(S) COMPUTATION (ACTUAL/360). Interest and fees, if any, shall be computed on the
basis of a 360-day year for the actual number of days in the applicable period (“Actual/360
Computation”). The Actual/360 Computation determines the annual effective interest yield by taking
the stated (nominal) rate for a year’s period and then dividing said rate by 360 to determine the
daily periodic rate to be applied for each day in the applicable period. Application of the
Actual/360 Computation produces an annualized effective rate exceeding the nominal rate.



REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly payments of accrued
interest only, commencing on November 30, 2008, and continuing on the last day of each month
thereafter until fully paid. In any event, all principal and accrued interest shall be due and
payable on October 31, 2009.



APPLICATION OF PAYMENTS. Monies received by Bank from any source for application toward payment of
the Obligations shall be applied to accrued interest and then to principal. If a Default occurs,
monies may be applied to the Obligations in any manner or order deemed appropriate by Bank.



If any payment received by Bank under this Note or other Loan Documents is rescinded, avoided or
for any reason returned by Bank because of any adverse claim or threatened action, the returned
payment shall remain payable as an obligation of all persons liable under this Note or other Loan
Documents as though such payment had not been made.



DEFINITIONS. Loan Documents. The term “Loan Documents”, as used in this Note and the other Loan
Documents, refers to all documents executed in connection with or related to the loan evidenced by
this Note and any prior notes which evidence all or any portion of the loan evidenced by this Note,
and any letters of credit issued pursuant to any loan agreement to which this Note is subject, any
applications for such letters of credit and any other documents executed in connection therewith or
related thereto, and may include, without limitation, a commitment letter that survives closing, a
loan agreement, this Note, guaranty agreements, security agreements, security instruments,
financing statements, mortgage instruments, any renewals or modifications, whenever any of the
foregoing are executed, but does not include swap agreements (as defined in 11 U.S.C. § 101, as in
effect from time to time). Obligations. The term “Obligations”, as used in this Note and the other
Loan Documents, refers to any and all indebtedness and other obligations under this Note, all other
obligations under any other Loan Document(s), and all obligations under any swap agreements (as
defined in 11 U.S.C. § 101, as in



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effect from time to time) between Borrower and Bank, or its
affiliates, whenever executed. Certain Other Terms. All terms that are used but not otherwise
defined in any of the Loan Documents shall have the definitions provided in the Uniform Commercial
Code.



LATE CHARGE. If any payments are not timely made, Borrower shall also pay to Bank a late charge
equal to 5% of each payment past due for 10 or more days. This late charge shall not apply to
payments due at maturity or by acceleration hereof.



Acceptance by Bank of any late payment without an accompanying late charge shall not be deemed a
waiver of Bank’s right to collect such late charge or to collect a late charge for any subsequent
late payment received. ATTORNEYS’ FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank’s
reasonable expenses actually incurred to enforce or collect any of the Obligations including,
without limitation, reasonable arbitration, paralegals’, attorneys’ and experts’ fees and expenses,
whether incurred without the commencement of a suit, in any trial, arbitration, or administrative
proceeding, or in any appellate or bankruptcy proceeding.



USURY. If at any time the effective interest rate under this Note would, but for this paragraph,
exceed the maximum lawful rate, the effective interest rate under this Note shall be the maximum
lawful rate, and any amount received by Bank in excess of such rate shall be applied to principal
and then to fees and expenses, or, if no such amounts are owing, returned to Borrower.



DEFAULT. If any of the following occurs, a default (“Default”) under this Note shall exist:
Nonpayment; Nonperformance. The failure of timely payment or performance of the Obligations or
Default under this Note or any other Loan Documents. False Warranty. A warranty or representation
made or deemed made in the Loan Documents or furnished Bank in connection with the loan evidenced
by this Note proves materially false, or if of a continuing nature, becomes materially false. Cross
Default. At Bank’s option, any default in payment or performance of any obligation under any other
loans, contracts or agreements of Borrower, any Subsidiary or Affiliate of Borrower, any general
partner of or the holder(s) of the majority ownership interests of Borrower with Bank or its
affiliates (“Affiliate” shall have the meaning as defined in 11 U.S.C. § 101, as in effect from
time to time, except that the term “Borrower” shall be substituted for the term “Debtor” therein;
“Subsidiary” shall mean any business in which Borrower holds, directly or indirectly, a controlling
interest). Cessation; Bankruptcy. The death of, appointment of a guardian for, dissolution of,
termination of existence of, loss of good standing status by, appointment of a receiver for,
assignment for the benefit of creditors of, or commencement of any bankruptcy or insolvency
proceeding by or against Borrower, its Subsidiaries or Affiliates, if any, or any general partner
of or the holder(s) of the majority ownership interests of Borrower, or any party to the Loan
Documents. Material Capital Structure or Business Alteration. Without prior written consent of
Bank, (i) a material alteration in the kind or type of Borrower’s business or that of Borrower’s
Subsidiaries or Affiliates, if any; (ii) the sale of substantially all of the business or assets of
Borrower, any of Borrower’s Subsidiaries or Affiliates or any guarantor, or a material portion (10%
or more) of such business or assets if such a sale is outside the ordinary course of business of
Borrower, or any of Borrower’s Subsidiaries or Affiliates or any guarantor, or more than 50% of the
outstanding stock or voting power of or in any such entity in a single transaction or a series of
transactions; (iii) the acquisition of substantially all of the business or assets or more than 50%
of the outstanding stock or voting power of any other entity; or (iv) should any Borrower or any of
Borrower’s Subsidiaries or Affiliates or any guarantor enter into any merger or consolidation.
Material Adverse Change. Bank determines in good faith, in its sole discretion, that the prospects
for payment or performance of the Obligations are impaired or there has occurred a material adverse
change in the business or prospects of Borrower, financial or otherwise.



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REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan Documents, Bank may at any
time thereafter, take the following actions: Bank Lien. Foreclose its security interest or lien
against Borrower’s deposit accounts and investment property without notice. Acceleration Upon
Default. Accelerate the maturity of this Note and, at Bank’s option, any or all other Obligations,
other than Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect from
time to time) between Borrower and Bank, or its affiliates, which shall be due in accordance with
and governed by the provisions of said swap agreements; whereupon this Note and the accelerated
Obligations shall be immediately due and payable; provided, however, if the Default is based upon a
bankruptcy or insolvency proceeding commenced by or against Borrower or any guarantor or endorser
of this Note, all Obligations (other than Obligations under any swap agreement as referenced above)
shall automatically and immediately be due and payable. Cumulative. Exercise any rights and
remedies as provided under the Note and other Loan Documents, or as provided by law or equity.



ANNUAL FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 120 days after the close of
each fiscal year, audited financial statements reflecting its operations during such fiscal year,
including, without limitation, a balance sheet, profit and loss statement and statement of cash
flows, with supporting schedules and in reasonable detail, prepared in conformity with generally
accepted accounting principles, applied on a basis consistent with that of the preceding year. If
audited statements are required, all such statements shall be examined by an independent certified
public accountant acceptable to Bank. The opinion of such independent certified public accountant
shall not be acceptable to Bank if qualified due to any limitations in scope imposed by Borrower or any other person or entity. Any other
qualification of the opinion by the accountant shall render the acceptability of the financial
statements subject to Bank’s approval.



PERIODIC FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 30 days after the end of each
fiscal quarter, unaudited management-prepared quarterly financial statements including, without
limitation, a balance sheet, profit and loss statement and statement of cash flows, with supporting
schedules; all in reasonable detail and prepared in conformity with generally accepted accounting
principles, applied on a basis consistent with that of the preceding year. Such statements shall be
certified as to their correctness by a principal financial officer of Borrower and in each case, if
audited statements are required, subject to audit and year-end adjustments.



FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information as Bank may
reasonably request from time to time, including without limitation, financial statements and
information pertaining to Borrower’s financial condition. Such information shall be true, complete,
and accurate.



FINANCIAL COVENANTS. Borrower agrees to the following provisions from the date hereof until final
payment in full of the Obligations, unless Bank shall otherwise consent in writing, using the
financial information for Borrower, its subsidiaries, affiliates and its holding or parent company,
as applicable: Deposit Relationship. Borrower shall maintain its primary depository account with
Bank.



WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and other Loan
Documents shall be valid unless in writing and signed by an officer of Bank. No waiver by Bank of
any Default shall operate as a waiver of any other Default or the same Default on a future
occasion. Neither the failure nor any delay on the part of Bank in exercising any right, power, or
remedy under this Note and other Loan Documents shall operate as a waiver thereof,



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nor shall a single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or remedy.



Except to the extent otherwise provided by the Loan Documents or prohibited by law, each Borrower
and each other person liable under this Note waives presentment, protest, notice of dishonor,
demand for payment, notice of intention to accelerate maturity, notice of acceleration of maturity,
notice of sale and all other notices of any kind. Further, each agrees that Bank may (i) extend,
modify or renew this Note or make a novation of the loan evidenced by this Note, and/or (ii) grant
releases, compromises or indulgences with respect to any collateral securing this Note, or with
respect to any Borrower or other person liable under this Note or any other Loan Documents, all
without notice to or consent of each Borrower and other such person, and without affecting the
liability of each Borrower and other such person; provided, Bank may not extend, modify or renew
this Note or make a novation of the loan evidenced by this Note without the consent of the
Borrower, or if there is more than one Borrower, without the consent of at least one Borrower; and
further provided, if there is more than one Borrower, Bank may not enter into a modification of
this Note which increases the burdens of a Borrower without the consent of that Borrower.



MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan Documents shall inure to the
benefit of and be binding upon the parties and their respective heirs, legal representatives,
successors and assigns. Bank’s interests in and rights under this Note and the other Loan Documents
are freely assignable, in whole or in part, by Bank. In addition, nothing in this Note or any of
the other Loan Documents shall prohibit Bank from pledging or assigning this Note or any of the
other Loan Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign
its rights and interest hereunder without the prior written consent of Bank, and any attempt by
Borrower to assign without Bank’s prior written consent is null and void. Any assignment shall not
release Borrower from the Obligations. Organization; Powers. Borrower represents that Borrower (i)
is (a) an adult individual and is sui juris, or (b) a corporation, general partnership,
limited partnership, limited liability company or other legal entity, duly organized, validly
existing and in good standing under the laws of its state of organization, and is authorized to do
business in each other jurisdiction wherein its ownership of property or conduct of business legally requires such organization (ii) has the power and authority to own
its properties and assets and to carry on its business as now being conducted and as now
contemplated; and (iii) has the power and authority to execute, deliver and perform, and by all
necessary action has authorized the execution, delivery and performance of, all of its obligations
under this Note and any other Loan Document to which it is a party. Compliance with Laws. Borrower
represents that Borrower and any subsidiary and affiliate of Borrower and any guarantor are in
compliance in all respects with all federal, state and local laws, rules and regulations applicable
to its properties, operations, business, and finances, including, without limitation, all
applicable federal, state and local laws and regulations intended to protect the environment; and
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), if applicable. None of
Borrower, or any subsidiary or affiliate of Borrower or any guarantor is a Sanctioned Person or has
any of its assets in a Sanctioned Country or does business in or with, or derives any of its
operating income from investments in or transactions with, Sanctioned Persons or Sanctioned
Countries in violation of economic sanctions administered by OFAC. The proceeds from the Loan will
not be used to fund any operations in, finance any investments or activities in, or make any
payments to, a Sanctioned Person or a Sanctioned Country. “OFAC” means the U.S. Department of the
Treasury’s Office of Foreign Assets Control. “Sanctioned Country” means a country subject to a
sanctions program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml, or as otherwise published from
time to time. “Sanctioned Person” means (i) a person named on the list of Specially



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Designated Nationals or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml, or as otherwise published from time
to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization
controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the extent
subject to a sanctions program administered by OFAC. Applicable Law; Conflict Between Documents.
This Note and, unless otherwise provided in any other Loan Document, the other Loan Documents shall
be governed by and interpreted in accordance with federal law and, except as preempted by federal
law, the laws of the state named in Bank’s address on the first page hereof without regard to that
state’s conflict of laws principles. If the terms of this Note should conflict with the terms of
any loan agreement or any commitment letter that survives closing, the terms of this Note shall
control. Borrower’s Accounts. Except as prohibited by law, Borrower grants Bank a security interest
in all of Borrower’s deposit accounts and investment property with Bank and any of its affiliates.
Swap Agreements. All swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to
time), if any, between Borrower and Bank or its affiliates are independent agreements governed by
the written provisions of said swap agreements, which will remain in full force and effect,
unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms
of this Note, except as otherwise expressly provided in said written swap agreements, and any
payoff statement from Bank relating to this Note shall not apply to said swap agreements except as
otherwise expressly provided in such payoff statement. Jurisdiction. Borrower irrevocably agrees to
non-exclusive personal jurisdiction in the state named in the Bank’s address on the first page
hereof. Severability. If any provision of this Note or of the other Loan Documents shall be
prohibited or invalid under applicable law, such provision shall be ineffective but only to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Note or other such document. Payments. All payments shall be
mailed to Bank at Commercial Loan Services, P. O. Box 740502, Atlanta, GA 30374-0502; or other such
address as provided by Bank in writing. Notices. Any notices to Borrower shall be sufficiently
given, if in writing and mailed or delivered to the Borrower’s address shown above or such other
address as provided hereunder, and to Bank, if in writing and mailed or delivered to Wachovia Bank,
National Association, Mail Code VA7628, P. O. Box 13327, Roanoke, VA 24040 or Wachovia Bank,
National Association, Mail Code VA7628, 7711 Plantation Road, Roanoke, VA 24019 or such other
address as Bank may specify in writing from time to time. Notices to Bank must include the mail
code. In the event that Borrower changes Borrower’s address at any time prior to the date the
Obligations are paid in full, Borrower agrees to promptly give written notice of said change of
address by registered or certified mail, return receipt requested, all charges prepaid. Plural;
Captions. All references in the Loan Documents to Borrower, guarantor, person, document or other
nouns of reference mean both the singular and plural form, as the case may be, and the term
“person” shall mean any individual, person or entity. The captions
contained in the Loan Documents are inserted for convenience only and shall not affect the meaning
or interpretation of the Loan Documents. Advances. Bank may, in its sole discretion, make other
advances which shall be deemed to be advances under this Note, even though the stated principal
amount of this Note may be exceeded as a result thereof. Posting of Payments. All payments received
during normal banking hours after 2:00 p.m. local time at the address for payments set forth above
shall be deemed received at the opening of the next banking day. Joint and Several Obligations. If
there is more than one Borrower, each is jointly and severally obligated together with all other
parties obligated for the Obligations. Fees and Taxes. Borrower shall promptly pay all documentary,
intangible recordation and/or similar taxes on this transaction whether assessed at closing or
arising from time to time. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES
HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION
PROCEEDING OR ANY CLAIM OR CONTROVERSY



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BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR
AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE
A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2)
PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO
PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY
SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION,
JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions to obtain, verify, and
record information that identifies each person who opens an account. For purposes of this section,
account shall be understood to include loan accounts. Final Agreement. This Note and the other Loan
Documents represent the final agreement between the parties and may not be contradicted by evidence
of prior, contemporaneous or subsequent agreements of the parties. There are no unwritten
agreements between the parties.



ARBITRATION. Upon demand of any party hereto, whether made before or after institution of any
judicial proceeding, any claim or controversy arising out of or relating to the Loan Documents
between parties hereto (a “Dispute”) shall be resolved by binding arbitration conducted under and
governed by the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the
American Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may include,
without limitation, tort claims, counterclaims, a dispute as to whether a matter is subject to
arbitration, or claims arising from documents executed in the future, but shall specifically
exclude claims brought as or converted to class actions. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding the foregoing, this arbitration provision does
not apply to disputes under or related to swap agreements. Special Rules. All arbitration hearings
shall be conducted in the city named in the address of Bank first stated above. A hearing shall
begin within 90 days of demand for arbitration and all hearings shall conclude within 120 days of
demand for arbitration. These time limitations may not be extended unless a party shows cause for
extension and then for no more than a total of 60 days. The expedited procedures set forth in Rule
51 et seq. of the Arbitration Rules shall be applicable to claims of less than
$1,000,000.00. Arbitrators shall be licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not waive applicable Federal or state
substantive law except as provided herein. Preservation and Limitation of Remedies. Notwithstanding
the preceding binding arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration proceeding is brought.
The parties shall have the right to proceed in any court of proper jurisdiction or by self-help to
exercise or prosecute the following remedies, as applicable: (i) all rights to foreclose against
any real or personal property or other security by exercising a power of sale or under applicable
law by judicial foreclosure including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and collection of rents, set-off, and
peaceful possession of personal property; (iii) obtaining provisional or ancillary remedies
including injunctive relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any party’s entitlement to such remedies is a
Dispute. Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY
HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE AS TO WHICH
BINDING ARBITRATION HAS BEEN DEMANDED.



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IN WITNESS WHEREOF, Borrower, on the day and year first above written, has caused this Note to be
duly executed under seal.



	 	 	 	 	 
	Applied Energy Management, Inc.

 	 	 
	By:  	/s/ John O’Rourke
 	 	 
	 	John O’Rourke, President 	 	 
	 	 	 	 
	 




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