Unassociated Document


    
       

       

      EXHIBIT
        10.2

       

    

    
      AMENDED
        AND RESTATED NOTE ISSUANCE AGREEMENT

       

      This
        Amended and Restated Note Issuance Agreement (this “Agreement”)
        is
        dated as of the 31st day of October, 2008, and is made by and between Lime
        Energy Co., a Delaware corporation (the “Company”),
        Richard P. Kiphart (“Kiphart”)
        and
        Advanced Biotherapy, Inc. (“ADVB”
and
        together with Kiphart, “Noteholders”).

       

      W
        I T N E
        S S E T H:

       

      WHEREAS,
        the Company and the Noteholders are parties to that certain Note Issuance
        Agreement dated as of August 14, 2008 (the “Existing
        Agreement”),
        pursuant to which the Company issued to (i) Kiphart, that certain Second
        Amended
        and Restated Revolving
        Line of Credit Note dated August 14, 2008 in the maximum principal amount
        of
        $14,500,000 (the “Kiphart
        Note”)
        and
        (ii) ADVB, that certain Second Amended and Restated Revolving Line of Credit
        Note dated August 14, 2008 in the maximum principal amount of $1,500,000
        (the
“Existing
        ADVB Note”);
        

       

      WHEREAS,
        ADVB has agreed to loan an additional $3,000,000 to the Company to be evidenced
        by that certain Third Amended and Restated Revolving
        Line of Credit Note dated the date hereof made by the Company in favor of
        ADVB
        (the “AR
        ADVB Note”
        together with the Kiphart Note, the “Notes”);

       

      WHEREAS,
        the AR ADVB Note is intended to replace and supersede the Existing ADVB Note;
        and

       

      WHEREAS,
        the parties desire to set forth certain additional understandings among
        themselves as more fully described herein.

       

      NOW,
        THEREFORE, in consideration of the premises and mutual agreements contained
        herein, the parties hereby agrees as follows:

       

      1. The
        AR
        ADVB Note.
        Contemporaneously with the execution of this Agreement and delivery by the
        Company to ADVB of the AR ADVB Note, ADVB shall deliver to the Company the
        original Existing ADVB Note.

       

      2. Security
        Agreement.
        On the
        date hereof, the Company and the Noteholders shall enter into that certain
        Amendment No. 1 to the Security Agreement dated as of the date hereof which
        amends the Security Agreement dated as of August 14, 2008 (collectively,
        the
“Security
        Agreement”)
        made
        by the Company in favor of the Noteholders to secure the obligations of the
        Company under the Notes. 

       

      3. Condition
        to Advances.
        It
        shall be a condition to each advance under the Notes that no Event of Default
        (as defined in the Notes) shall have occurred and be continuing. At the time
        of
        each request for an advance, the Company shall provide to the Noteholders
        a
        certificate, executed by the Chief Executive Officer or Chief Financial Officer
        of the Company, stating that no Event of Default has occurred and is
        continuing.

       

      4. Manner
        of Advances, Repayments, Prepayments and Payment of the Wachovia
        Note.
        The
        Company hereby covenants and agrees that prior to drawing any advances under
        the
        Notes after the date of this Agreement, it shall first draw $2,200,000 against
        the Notes which shall be used to pay down the entire outstanding balance
        of the
        Revolving Promissory Note dated June 10, 2008 between Applied Energy Management,
        Inc. and Wachovia Bank, National Association in the principal amount of
        $2,228,775. All future advances thereafter requested by the Company shall
        be
        drawn equally against the Notes until the Kiphart Note is fully drawn, after
        which all draws will be against the AR ADVB Note

       

       

      
        
          
          

        

        
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      unless
        otherwise agreed to by the Company and the Noteholders in writing. As long
        as
        both of the Notes remain outstanding, each repayment and prepayment thereof
        by
        the Company shall be divided into two payments, a payment to the Kiphart
        Note
        and a payment to the AR ADVB Note, each such payment in an amount proportional
        to the outstanding principal balance of each of the Notes.

       

      5. Commitment
        by ADVB.
        ADVB
        hereby covenants and agrees that it has reserved cash or other immediately
        liquid assets in an amount equal to the undrawn balance under the AR ADVB
        Note,
        and shall at all times while the AR ADVB Note remains outstanding continue
        to
        reserve a sufficient amount of cash or other immediately liquid assets as
        to
        enable it to make advances under the AR ADVB Note.

       

      6. Subordination
        by Noteholders.
        Each
        Noteholder agrees to subordinate its Note and its security interests evidenced
        by the Security Agreement in the event the Company arranges to have a commercial
        lender provide financing to the Company for similar purposes, which
        subordination must be on terms and conditions acceptable to the Noteholders
        in
        their reasonable discretion. 

       

      7. Information
        Regarding Use of Proceeds.
        Promptly following request therefore by either Noteholder, the Company shall
        provide Noteholders with reasonable detail regarding the use of proceeds
        with
        respect to any advance made under the Notes, subject to the Company’s
        obligations under Regulation F-D.

       

      8. Kiphart
        Note.
        All
        references in the Kiphart Note to the Existing Agreement shall mean and include
        only this Agreement.

       

      9. Arbitration.
        In the
        event of any and all disagreements and controversies arising from this Agreement
        or the Notes, such disagreements and controversies shall be subject to binding
        arbitration as arbitrated in accordance with the then current Commercial
        Arbitration Rules of the American Arbitration Association in Chicago, Illinois
        before one neutral arbitrator. Any party involved in such disagreement or
        controversy may apply to the arbitrator seeking injunctive relief until the
        arbitration award is rendered or the controversy is otherwise resolved. Without
        waiving any remedy under this Agreement, any involved party may also seek
        from
        any court having jurisdiction any interim or provisional relief that is
        necessary to protect the rights or property of that party, pending the
        establishment of the arbitral tribunal (or pending the arbitral tribunal’s
        determination of the merits of the controversy). In the event of any such
        disagreement or controversy, no party shall directly or indirectly reveal,
        report, publish or disclose any information relating to such disagreement
        or
        controversy to any person, firm or corporation not expressly authorized by
        the
        other party to receive such information or use such information or assist
        any
        other person in doing so, except to comply with actual legal obligations
        of such
        party, or unless such disclosure is directly related to an arbitration
        proceeding as provided herein, including, but not limited to, the prosecution
        or
        defense of any claim in such arbitration. The costs and expenses of the
        arbitration (including, without limitation, reasonable attorneys’ fees) shall be
        paid by the non-prevailing party or as determined by the
        arbitrator.

       

      10. Miscellaneous.

       

      (a) All
        of
        the WHEREAS clauses and other recitals at the beginning of this Agreement
        are
        hereby incorporated into and made part of this Agreement.

       

      (b) This
        Agreement shall be binding upon, and shall inure solely to the benefit of,
        each
        of the parties hereto, and each of their respective heirs, executors,
        administrators, successors and permitted assigns, and no other person shall
        acquire or have any right under or by virtue of this Agreement.
        No
        Noteholder shall assign its rights under this Agreement except in connection
        with an assignment under the Notes
        permitted by the terms thereof.

       

      
        
          
          

        

        
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      (c) This
        Agreement amends and restates the Existing Agreement in its entirety as of
        the
        date hereof, and this Agreement may be amended only by written execution
        by all
        parties. No waiver of any provision of this Agreement shall in any event
        be
        effective unless the same shall be in writing and acknowledged by the party
        against whom enforcement is sought, and then any such waiver shall be effective
        only in the specific instance and for the specific purpose for which
        given.

       

      (d) The
        descriptive headings of the several sections and paragraphs of this Agreement
        are inserted for convenience only and do not constitute a part of this
        Agreement.

       

      (e) All
        questions concerning the construction, validity, enforcement and interpretation
        of this Agreement shall be governed by the internal laws of the State of
        Illinois, without giving effect to any choice of law or conflict of law
        provision or rule (whether of the State of Illinois or any other jurisdiction)
        that would cause the application of the laws of any jurisdiction other than
        the
        State of Illinois.

       

      (f) Wherever
        possible, each provision of this Agreement shall be interpreted in such manner
        as to be effective and valid under applicable law, but if any provision of
        this
        Agreement shall be prohibited by, unenforceable or invalid under any
        jurisdiction, such provision shall as to such jurisdiction, be severable
        and be
        ineffective to the extent of such prohibition or invalidity, without
        invalidating the remaining provisions of this Agreement or affecting the
        validity or enforceability of such provision in any other
        jurisdiction.

       

      (g) This
        Agreement may be executed in one or more counterparts, all of which shall
        be
        deemed but one and the same agreement and each of which shall be deemed an
        original. Delivery by facsimile of an executed counterpart of this Agreement
        shall be effective as an original executed counterpart hereof and shall be
        deemed a representation that an original executed counterpart hereof will
        be
        delivered.

       

      (h) THE
        PARTIES HERETO, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
        WITH
        COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY,
        ANY
        RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
        ANY
        RIGHTS UNDER THIS AGREEMENT.

       

      (i) ANY
        LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
        AGREEMENT SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
        STATE
        OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
        OF
        ILLINOIS; PROVIDED
        THAT
        NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE NOTEHOLDER
        FROM
        BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. EACH
        PARTY
        HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS
        OF
        THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
        DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
        ABOVE
        AND EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
        LAW,
        ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
        ANY
        SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
        THAT
        ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

       

      [Signatures
        on following page]

       

      
        
          
          

        

        
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      IN
        WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
        and
        year first above written.

       

       

      LIME
        ENERGY CO.

       

       

      By: 
        /s/ Jeffrey R. Mistarz_____________________________

      Name:
        Jeffrey R. Mistarz

      Title:
        Executive Vice President and Chief Financial Officer

       

       

      NOTEHOLDERS:

       

      Richard
        P. Kiphart

      
/s/
        Richard P. Kiphart                     


      Advanced
        Biotherapy, Inc.

       

      By: 
        /s/ Christopher W. Capps                    

      Christopher
        W. Capps, President

       

       

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