Unassociated Document


     

     

    EXHIBIT
      10.3

     

    AMENDMENT
      NO. 1 TO SECURITY AGREEMENT

     

    This
      Amendment No.1 to Security Agreement (this
      “Amendment”) is made
      as
      of October 31, 2008, by and among Lime Energy Co., a Delaware corporation (the
      “Debtor”),
      and
      Richard P. Kiphart (“Kiphart”)
      and
      Advanced Biotherapy, Inc. (“ADVB”
and
      together with Kiphart, the “Secured
      Parties,”
and
      each, a “Secured
      Party”),
      and
      amends the Security Agreement dated as of August 14, 2008 (“Existing
      Agreement”)
      by and
      among the Debtor and the Secured Parties.

     

    Explanatory
      Statement

     

    WHEREAS,
      the Company issued to ADVB that certain Second Amended and Restated Revolving
      Line of Credit 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 “Third
      Restated ADVB Note”,
      together with the Kiphart Note, the “Notes”);

     

    WHEREAS,
      the Third Restated ADVB Note replaces and supersedes the Existing ADVB
      Note;
      and

     

    WHEREAS,
      the Debtor and the Secured Parties desire to amend the Existing Agreement as
      more specifically set forth herein.

     

    NOW,
      THEREFORE,
      based on
      the premises and agreements set forth herein, intending to be legally bound,
      the
      parties hereto agree as follows:

     

    1.    Defined
      Terms.
      All
      capitalized terms used herein shall have the same meaning ascribed to them
      in
      the Existing Agreement, unless otherwise defined herein. 

     

    2.    Representations,
      Warranties and Covenants.
      The
      Debtor represents, warrants, covenants and agrees as follows:

     

    (a) Debtor
      is
      the sole legal and beneficial owner of each item of the Collateral, having
      good
      and marketable title thereto, free and clear of any and all liens, charges,
      encumbrances, taxes and assessments other than the Permitted Liens.

     

    (b) The
      execution, delivery and performance of this Amendment does not and will not
      contravene or violate any provision of any law, rule, regulation, order, writ,
      judgment, injunction, decree, determination or award presently in effect and
      applicable to the Debtor, or result in a breach of or constitute a default
      (with
      or without the giving of notice or the lapse of time, or both) under any
      indenture or any other agreement to which the Debtor is a party, or by which
      the
      Debtor or any of the Debtor's property may be bound or affected.

     

    (c) The
      Debtor has the full corporate right and authority to enter into this Amendment
      and to perform this Amendment in accordance with the terms hereof.

     

    3. Waiver.
      Waiver
      of, or acquiescence in, any default by the Debtor, or failure of a Secured
      Party
      to insist upon strict performance by the Debtor of any warranties or agreements
      in this Agreement, shall not constitute a waiver of any subsequent or other
      default or failure.

     


    
      
        
        

      

      
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    4. Notes
      and Agreement.
      The
      term “Notes” as used in the Existing Agreement, as amended by this Amendment,
      means collectively the Kiphart Note and the Third Restated ADVB Note, without
      the need for any other modification or change thereof. The term “Agreement” as
      used in the Existing Agreement means the Existing Agreement, as amended by
      this
      Amendment, without the need for any other modification or change
      thereof. 

     

    5. Miscellaneous.

     

    (a) This
      Amendment shall bind and inure to the benefit of the respective parties hereto,
      and their legal representatives, successors and assigns.

     

    (b) This
      Amendment may be modified or amended only by a writing signed by the Debtor
      and
      each Secured Party.

     

    (c) This
      Amendment shall be governed by, and interpreted and enforced in accordance
      with,
      the laws of the State of Illinois, as applied to contracts made and to be
      performed in that state, without regard to conflicts of law
      principles.

     

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

     

    (e) Except
      as
      provided in this Amendment, the Existing Agreement remains unchanged and in
      full
      force and effect. 

     

     

    [Signatures
      on following page]

     

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF,
      the
      undersigned have executed this Amendment No. 1 to Security Agreement effective
      as of the date first set forth above.

     

    DEBTOR:

     

     

    Lime
      Energy Co.

     

     

    By: 
      /s/ Jeffrey R. Mistarz
      
        

      

    

    Name:
      Jeffrey R. Mistarz

    Title:
      Executive Vice President and Chief Financial Officer

     

     

    SECURED
      PARTIES

     

    Richard
      P. Kiphart

     

    /s/
      Richard P. Kiphart

    
      

    

     

     

    Advanced
      Biotherapy, Inc.

     

     

    By: 
      /s/ Christopher W. Capps
      
        

      

    

    Name:
      Christopher W. Capps

    Title:
      President

     

     

    
      
        
        

      

      
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    SECURITY
      AGREEMENT 

    
       

      This
        Security Agreement (this “Agreement”)
        is
        made as of August 14, 2008, by and among Lime Energy Co., a Delaware
        corporation (the “Debtor”),
        and
        Richard P. Kiphart (“Kiphart”)
        and
        Advanced Biotherapy, Inc. (“ADVB”
and
        together with Kiphart, the “Secured
        Parties,”
and
        each, a “Secured
        Party”).
        

       

      Explanatory
        Statement 

       

      Debtor
        has agreed to grant to Secured Parties a security interest in the Debtor’s
        assets to secure the payment and performance of the obligations in connection
        with (i) that certain Second Amended and Restated Revolving Line of Credit
        Promissory Note made by the Debtor in favor of Kiphart (“Kiphart
        Note”)
        and
        (ii) that certain Second Amended and Restated Revolving Line of Credit Note
        made by Debtor to ADVB (the “ADVB
        Note”
and
        together with the Kiphart Note, the “Notes”),
        each
        dated as of the date hereof. 

       

      NOW,
        THEREFORE, based
        on
        the premises and agreements set forth herein, intending to be legally bound,
        and
        to secure the payment of an indebtedness equal to the aggregate principal
        amount
        of the Notes, plus accrued interest, as detailed in the Notes, the parties
        hereto agree as follows: 

       

      1. (a)
        Definitions.
        As used
        herein, the capitalized terms set forth in bold
        below
        shall have the following meanings: 

       

      “Collateral”
shall
        mean all right, title and interest of the Debtor in and to (a) all
        Accounts, (b) all Instruments, (c) all Inventory, (d) all General
        Intangibles, (e) all Equipment, (f) any and all Proceeds, (g) all
        contract rights, (h) all computer software, and (i) all right, title
        and interest in and to any and all other assets and property of the Debtor
        to
        secure the Obligations, but shall not include any Equipment or other Collateral
        obtained or acquired or to be obtained or acquired by the Debtor on a lease
        financing basis. 

       

      “Obligations”
shall
        mean the payment obligations of the Debtor under the Notes. 

       

      “Permitted
        Liens”
shall
        mean: (a) the liens and security interests of the Senior Lenders;
        (b) the liens and security interests of the Secured Parties hereunder;
        (c) liens for taxes, assessments, or similar charges either not yet due or
        being contested in good faith; (d) liens of materialmen, mechanics,
        warehousemen, or carriers, or other like liens arising in the ordinary course
        of
        business and securing obligations which are not yet delinquent;
        (e) purchase money liens or purchase money security interests upon or in
        any property acquired or held by Debtor in the ordinary course of business
        to
        secure indebtedness outstanding on the date of this Agreement; (f) liens
        and security interests which, as of the date of this Agreement, have been
        disclosed to and approved by Secured Parties in writing; and (g) those
        liens and security interests which in the aggregate constitute an immaterial
        and
        insignificant monetary amount with respect to the net value of Debtor’s
        assets.

       

      
        
          
          

        

        
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      “Senior
        Lenders”
shall
        mean each of American Chartered Bank and any commercial lender which provides
        financing to Debtor. 

       

      “Senior
        Lien”
shall
        mean liens made in favor of the Senior Lenders by Debtor.

       

      “UCC”
shall
        mean the Uniform Commercial Code as in effect in the State of Illinois from
        time
        to time. 

       

      (b) Incorporation
        of UCC Terms.
        Except
        as specifically defined in this Agreement, all words, terms and/or phrases
        used
        in this Agreement shall be defined by the applicable definition ascribed
        thereto
        in Article 9 of the UCC, which definitions are incorporated herein by
        reference as if fully set forth herein, including: “Accounts”,
        “Documents”,
        “Equipment”,
        “General
        Intangibles”,
        “Goods”,
        “Instruments”,
        “Inventory”
and
        “Proceeds”.
        If a
        term is defined in Article 9 of the UCC differently than in another Article
        of the UCC, the term shall have the meaning ascribed to such term in
        Article 9. 

       

      2. Grant
        of Security Interest.
        The
        Debtor hereby grants and conveys to the Secured Parties a continuing perfected
        security interest in and a lien upon all of the Debtor’s right, title and
        interest in, to and under the Collateral, whether presently existing or
        hereafter created or acquired, and all products and proceeds for the foregoing
        to secure the payment and performance of Debtor’s obligations under the Notes.
        Nothing in this Agreement shall be deemed to constitute an assumption or
        acceptance by either Secured Party of any of the obligations or the Debtor
        under
        any of the Collateral or any contract or agreement for purchase, sale, lease
        or
        disposition of the Collateral, and Debtor hereby specifically confirms and
        acknowledges that it shall remain liable for any obligations it may have
        under
        or in respect of any of the Collateral and agree to indemnify the Secured
        Parties and hold the Secured Parties harmless against any such liability
        or
        obligation. 

       

      3. Continuing
        Security Interest.
        This
        Agreement creates a continuing perfected security interest in and lien upon
        the
        Collateral and shall: (a) remain in full force and effect until all
        Obligations have been paid in full or otherwise discharged; (b) be binding
        upon the Debtor and its successors, permitted transferees and permitted assigns;
        and (c) inure, together with the rights and remedies of the Secured Parties
        hereunder, to the benefit of each Secured Party and their respective successors,
        transferees and assigns. Upon the payment in full of all Obligations, the
        security interest and lien granted hereunder shall terminate and all rights
        to
        the Collateral shall revert to the Debtor. Upon such termination, the Secured
        Parties will execute and deliver to the Debtor such documents as the Debtor
        shall reasonably request to evidence such termination. 

       

      4. Representations,
        Warranties and Covenants.
        The
        Debtor represents, warrants, covenants and agrees as follows: 

       

      (a) Debtor
        is
        the sole legal and beneficial owner of each item of the Collateral, having
        good
        and marketable title thereto, free and clear of any and all liens, charges,
        encumbrances, taxes and assessments other than the Permitted Liens.

       

      
        
          
          

        

        
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      (b) The
        execution, delivery and performance of this Agreement and the endorsement
        and
        delivery of the Collateral does not and will not contravene or violate any
        provision of any law, rule, regulation, order, writ, judgment, injunction,
        decree, determination or award presently in effect and applicable to the
        Debtor,
        or result in a breach of or constitute a default (with or without the giving
        of
        notice or the lapse of time, or both) under any indenture or any other agreement
        to which the Debtor is a party, or by which the Debtor or any of the Debtor’s
        property may be bound or affected. 

       

      (c) Debtor
        shall pay and perform all of the obligations secured by this Agreement according
        to their terms. 

       

      (d) Debtor
        shall defend the title to the Collateral against all persons and against
        all
        claims and demands whatsoever, which Collateral is free and clear of any
        and all
        liens, security interests, claims, charges, encumbrances, taxes and assessments,
        except for the Permitted Liens. 

       

      (e) Debtor
        shall do the following: (i) furnish any further assurances of title
        reasonably requested by a Secured Party; (ii) execute any written agreement
        or do any other acts reasonably necessary to effectuate the purposes and
        provisions of the Agreement; (iii) execute any instrument or statement required
        by law in order to perfect or continue the security interest of the Secured
        Parties in the Collateral; and (iv) pay all costs of filing in connection
        therewith. 

       

      (f) Debtor
        shall keep the Collateral free and clear of all liens, charges, encumbrances,
        taxes and assessments other than the Permitted Liens. 

       

      (g) Debtor
        shall pay, when due, all taxes, assessments and license fees relating to
        the
        Collateral unless such taxes and/or assessments are being contested by Debtor
        in
        good faith. 

       

      (h) The
        Debtor has the full corporate right and authority to enter into this Agreement
        and to pledge the Collateral in accordance with the terms hereof.

       

      (i) Except
        for the filing of financing statements with the Secretary of State for the
        State
        of Illinois under the UCC, no authorization, approval or other action by,
        and no
        notice to or filing with, any governmental or regulatory authority, agency
        or
        office is required either (1) for the grant by the Debtor or the
        effectiveness of the security interest and lien granted hereby or for the
        execution, delivery and performance of this Agreement by the Debtor, or
        (2) for the perfection of or the exercise by the Secured Parties of any of
        their rights and remedies hereunder. 

       

      5. Waiver.
        Waiver
        of, or acquiescence in, any default by the Debtor, or failure of a Secured
        Party
        to insist upon strict performance by the Debtor of any warranties or agreements
        in this Agreement, shall not constitute a waiver of any subsequent or other
        default or failure. 

       

      6. Debtor
        Remains Liable.
        Anything herein to the contrary notwithstanding (a) the Debtor shall remain
        liable under any agreements which have been (in whole or in

       

       

      
        
          
          

        

        
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      part)
        pledged or assigned herein to perform all of its duties and obligations
        thereunder to the same extent as if this Agreement had not been executed,
        (b) the exercise by the Secured Parties of any of the rights hereunder
        shall not release the Debtor from any of its respective duties or obligations
        under any such agreements, and (c) no Secured Party shall have any
        obligation or liability under any such agreements by reason of this Agreement,
        nor shall either Secured Party be obligated to perform any of the obligations
        or
        duties of the Debtor thereunder or to take any action to collect or enforce
        any
        claim for payment assigned hereunder. 

       

      7. Governing
        Statute.
        The UCC
        shall govern the rights, duties and remedies of the parties and any provisions
        herein declared invalid under any law shall not invalidate any other provision
        or this Agreement. 

       

      8. Remedies
        Upon Default. 

       

      (a) Upon
        any
        Event of Default (as defined in the Notes), the Obligations secured by this
        Agreement shall immediately become due and payable in full without notice
        or
        demand and the Secured Parties shall have all the rights, remedies and
        privileges with respect to the retention and sale of the Collateral and
        disposition of the proceeds thereof as are accorded by the applicable sections
        of the Uniform Commercial Code respecting “Default.” 

       

      (b) Upon
        any
        Event of Default, the Debtor shall assemble all materials relevant to the
        Collateral and make it available to the Secured Parties at the place and
        at the
        time designated in the demand. The proceeds of all sales and collections
        of the
        Collateral shall be applied as follows:

       

      (i) to
        the
        payment of costs and expenses of such sales and collections incurred by Secured
        Parties; 

       

      (ii) any
        surplus then remaining to the payment of unpaid interest under the Notes;
        

       

      (iii) any
        surplus remaining to the payment of the unpaid principal of the Notes;


       

      (iv) to
        the
        payment of any other amounts required by applicable law, including without
        limitation, the UCC; and

       

      (v) any
        surplus then remaining shall be paid over (subject to the rights of third
        parties) to the Debtor or for its account. The Debtor shall remain liable
        for
        any deficiency resulting from the sale of the Collateral and shall pay any
        such
        deficiency forthwith on demand. 

       

      9. Subordination.
        The
        security interest in the Collateral described in Section
        2
        is
        hereby expressly subordinated to the any lien now or hereafter granted to
        the
        Senior Lenders by Debtor or by law, notwithstanding the date, order or method
        of
        attachment or perfection of any such Senior Liens or the provisions of any
        applicable law. 

       

      
        
          
          

        

        
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      10. Termination.
        This
        Agreement shall terminate upon payment of all indebtedness and performance
        of
        all obligations under the Notes, and each Secured Party shall execute and
        deliver to the Debtor a UCC-3 financing statement terminating the lien of
        such
        Secured Party on the Collateral. 

       

      11. Miscellaneous. 

       

      (a) This
        Agreement shall bind and inure to the benefit of the respective parties hereto,
        and their legal representatives, successors and assigns. 

       

      (b) This
        Agreement may be modified or amended only by a writing signed by the Debtor
        and
        each Secured Party. 

       

      (c) All
        notices, requests, demands, claims and other communications hereunder
        (“Notices”)
        shall
        be in writing. Any Notice hereunder shall be deemed duly given (i) upon
        receipt if delivered in person; (ii) upon the third business day after
        being sent if sent by registered or certified mail, return receipt requested
        with postage thereon prepaid; or (iii) on the next business day if sent by
        Federal Express or similar overnight courier service; in each case addressed
        to
        the intended recipient as set forth below (or to such other address as the
        intended receipt may request by way of Notice delivered in accordance with
        this
        Section): 

       

      If
        to the
        Debtor, to:

      Lime
        Energy Co.

      1280
        Landmeier Road

      Elk
        Grove
        Village, IL 60007

      Attention:
        Chief Financial Officer

      


      With
        a
        copy to:

      Reed
        Smith LLP

      10
        S.
        Wacker Drive

      Chicago,
        IL 60606

      Attention:
        Evelyn Arkebauer

      


      If
        to the
        Kiphart:

      Richard
        P. Kiphart

      William
        Blair &Co.

      222
        W.
        Adams Street

      Chicago,
        IL 60606

       

       

      
        
          
          

        

        
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      If
        to
        ADVB:

      Advanced
        Biotherapy, Inc.

      227
        W.
        Monroe Street, Suite 2900

      Chicago,
        IL 60606

       

      Attention:
        Chief Executive Officer

       

      (d) This
        Agreement shall be governed by, and interpreted and enforced in accordance
        with,
        the laws of the State of Illinois, as applied to contracts made and to be
        performed in that state, without regard to conflicts of law principles.


       

      (e) This
        Agreement may be signed in one or more counterparts, each of which shall
        be
        deemed an original but all of which together will constitute one and the
        same
        agreement. 

       

      IN
        WITNESS WHEREOF,
        the
        undersigned have executed this Security Agreement effective as of the date
        first
        set forth above. 

       

      
        	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                 

              	
                 

              	
                DEBTOR:

              
	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                 

              	
                 

              	
                Lime
                  Energy Co.

              
	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                 
                  

              	
                 

              	
                By:
                  

              	
                 

              	
                /s/
                  Jeffrey Mistarz

              
	
                 
                  

              	
                 

              	
                Name:
                  

              	
                 

              	
                Jeffrey
                  Mistarz

              
	
                 
                  

              	
                 

              	
                Title:
                  

              	
                 

              	
                Chief
                  Financial Officer

              
	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                 

              	
                 

              	
                SECURED
                  PARTIES

              
	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                 

              	
                 

              	
                Richard
                  P. Kiphart

              
	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                 

              	
                 

              	
                /s/
                  Richard Kiphart

              
	
                 

              	
                 

              	
                 

              
	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                 

              	
                 

              	
                Advanced
                  Biotherapy, Inc.

              
	
                 

              	
                 

              	
                 

              	
                 

              	
                 

              
	
                 
                  

              	
                 

              	
                By:
                  

              	
                 

              	
                /s/
                  Christopher W. Capps

              
	
                 
                  

              	
                 

              	
                Name:
                  

              	
                 

              	
                Christopher
                  W. Capps

              
	
                 
                  

              	
                 

              	
                Title:
                  

              	
                 

              	
                President

              
	 	 	 	 	 
	 	 	 	 	 


      

      
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