Unassociated Document


    
       

       

      EXHIBIT
        10.1

       

       

    

    
      THIRD
        AMENDED AND RESTATED

      REVOLVING
        LINE OF CREDIT NOTE

      No.
        AR - 5

       

      
        	
                $4,500,000

              	
                Dated:
                  October 31, 2008

              
	 	 


      

      Lime
        Energy Co., a Delaware corporation (the “Company”),
        for
        value received, promises to pay to Advanced Biotherapy, Inc. (“Noteholder”),
        the
        principal amount of Four Million Five Hundred Thousand Dollars ($4,500,000)
        (the
“Maximum
        Principal Amount”),
        or so
        much thereof as may be advanced and be outstanding, together with interest
        thereon, to be computed on each advance from the date of its disbursement
        as set
        forth herein. This Note is issued pursuant to that certain Amended and Restated
        Note Issuance Agreement dated of even date herewith, by and among the Company,
        Noteholder and the other lender named therein (the “AR
        Note Issuance Agreement”),
        and
        the obligation of the Noteholder to make advances is subject to the Company’s
        compliance with the conditions set forth in the AR Note Issuance Agreement.
        

       

      Noteholder
        authorizes the Company to record on the grid sheet accompanying this Note
        (the
“Grid
        Sheet”)
        all
        advances, repayments, prepayments and the unpaid principal balance from time
        to
        time. As provided in the AR Note Issuance Agreement, all advances, repayments
        and prepayments on the notes issued pursuant thereto are to be made pro rata
        among Noteholder and the lender named therein. Noteholder agrees that, in
        the
        absence of manifest error, the record kept by the Company on the Grid Sheet
        shall be conclusive evidence of the matters recorded, provided that the failure
        of the Company to record or correctly record any amount or date shall not
        affect
        the obligation of the Company to pay the outstanding principal balance of
        the
        advances and the interest thereon in accordance with this Note.

       

      The
        following is a statement of the rights of Noteholder and the conditions to
        which
        this Note is subject, and to which Noteholder, by the acceptance of this
        Note,
        agrees:

       

      1.    Payment
        of Principal and Interest. 

       

      1.1.    Interest.
        The
        outstanding principal balance hereunder shall bear interest at the rate of
        seventeen percent (17%) per annum with twelve percent (12%) per annum payable
        in
        cash (the “Current
        Interest”)
        and
        the remaining five percent (5%) per annum to be capitalized (the “Capitalized
        Interest”).
        The
        Current Interest shall be payable on the first Business Day (as hereinafter
        defined) of each calendar quarter, commencing on January 2, 2009 and continuing
        until the principal balance hereunder shall have been paid in full. The
        Capitalized Interest shall be added to the outstanding principal balance
        of this
        Note on the first calendar day of each quarter that this Note remains
        outstanding (the “Capitalized
        Interest”) and
        shall
        be due and payable on the Maturity Date (as hereinafter defined) or on such
        other date as may be required hereby. As used herein, references to the
        "principal balance" shall include Capitalized Interest. For the avoidance
        of
        doubt, Capitalized Interest shall bear interest at the same interest rate
        and
        shall be payable on the same terms as principal advanced by the Noteholder.
        Capitalized Interest and Current Interest shall be calculated based on a
        365 day
        year for the actual number of days elapsed. “Business
        Day”
shall
        mean any day, other than a Saturday, Sunday, a day that is a legal holiday
        under
        the laws of the State of Illinois or any other day on which banking institutions
        located in Chicago, Illinois are authorized or required by law or other
        governmental action to close.

       

      1.2.    Principal.
        The
        entire outstanding principal balance and all accrued and unpaid interest
        shall
        be immediately due and payable on March 31, 2009 (the “Maturity
        Date”).

       

      1.3.    Borrowing
        and Repayment.
        The
        Company may from time to time during the term of this Note borrow, partially
        or
        wholly, repay its outstanding borrowings, and reborrow, subject to

       

       

      
        
          
          

        

        
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      all
        of
        the limitations, terms and conditions of this Note; provided, however, that
        the
        total outstanding borrowings under this Note shall not at any time exceed
        the
        Maximum Principal Amount. The outstanding principal balance of this Note,
        together with all accrued but unpaid interest, including, without limitation,
        all Capitalized Interest, shall be due and payable in full on the Maturity
        Date.


       

      1.4.    Business
        Purpose; Usury Savings Clause.
        This
        Note is being issued for business purposes. The Company and Noteholder intend
        to
        comply at all times with applicable usury laws. If at any time such laws
        would
        render usurious any amounts due under this Note under applicable law, then
        it is
        the Company’s and Noteholder’s express intention that the Company not be
        required to pay interest on this Note at a rate in excess of the maximum
        lawful
        rate, that the provisions of this Section 1.4
        shall
        control over all other provisions of this Note which may be in apparent conflict
        hereunder, that such excess amount shall be immediately credited to the
        principal balance of this Note (or, if this Note has been fully paid, refunded
        by Noteholder to the Company), and the provisions hereof shall be immediately
        reformed and the amounts thereafter decreased, so as to comply with the then
        applicable usury law, but so as to permit the payment of the maximum amount
        otherwise due under this Note.

       

      1.5.    Application
        of Payments.
        Payments by the Company shall be applied first to any and all accrued interest
        through the payment date and second to the unpaid principal
        balance.

       

      2.    Unused
        Funds Fee.
        The
        Company agrees to pay to Noteholder a fee (the "Unused
        Funds Fee")
        calculated by multiplying (a) four percent (4%) times (b) the daily
        amount by which the Maximum Principal Amount exceeds the outstanding advances
        made to the Company, excluding Capitalized Interest, dividing the product
        by (c)
        365 and then multiplying the quotient by (d) the number of days in such calendar
        quarter. The Unused Funds Fee shall be payable quarterly in arrears on the
        first
        Business Day of each calendar quarter for the immediately preceding calendar
        quarter commencing on the first such date following the date hereof, with
        a
        final payment on the Maturity Date or any earlier date on which all amounts
        payable hereunder become due pursuant to the terms hereof. Any Unused Funds
        Fee
        that shall not be paid by the tenth (10th)
        day of
        each calendar quarter shall accrue interest at the rate of seventeen percent
        (17%) per annum until paid in full together with such accrued interest.


       

      3.    Termination
        Fee.
        In the
        event, and on the date (the “Termination
        Date”),
        that
        the Company delivers written notice to Noteholder terminating the lending
        relationship evidenced by this Note prior to the Maturity Date, the Company
        agrees to pay a termination fee to the Noteholder (the “Termination
        Fee”)
        calculated by dividing (a) Two Hundred Twenty Five Thousand Dollars ($225,000)
        by (b) three hundred sixty five days and then multiplying the quotient by
        (c)
        the number of days from the Termination Date to the Maturity Date.

       

      4.    Conversion
        of Note into Common Stock.

       

      4.1.    Provided
        this Note has not been paid in full as of the Maturity Date, then, at any
        time
        from April 1, 2009 to March 31, 2010, Noteholder is entitled, at its option,
        to
        convert all or any portion of the principal amount then outstanding under
        this
        Note into shares of Common Stock of the Company (“Conversion
        Shares”)
        at the
        Conversion Price. The Conversion Price per share of Common Stock shall be
        equal
        to the five (5) trading day volume weighted average price per share of the
        Common Stock on the OTC Bulletin Board immediately prior to the date that
        the
        Company initially borrows any amount under this Note in excess of the $1,500,000
        principal amount.

       

      4.2.    Such
        conversion shall be achieved by submitting to the Company a conversion notice
        executed by the Noteholder evidencing such Noteholder's intention to convert
        this Note or the specified portion hereof (“Notice
        of Conversion”).
        A
        Notice of Conversion may be submitted via facsimile to the Company at the
        telecopier number for the Company provided on the signature page to this
        Note
        (or at such other number as requested in advance of such conversion in writing
        by the Company), and such facsimile copy shall be deemed an original Notice
        of
        Conversion for all purposes.

       

       

      
        
          
          

        

        
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      The
        Company and Noteholder shall each keep records with respect to the portion
        of
        this Note then being converted and all portions previously converted; upon
        receipt by Noteholder of the requisite Conversion Shares, the outstanding
        principal amount of the Note shall be reduced by the amount specified in
        the
        Notice of Conversion resulting in such Conversion Shares. Upon request by
        the
        Company, the Noteholder shall surrender this Note along with the Notice of
        Conversion for the purposes of canceling this Note where the amount of principal
        so converted is the entire amount outstanding under this Note.

       

      4.3.    After
        the
        Maturity Date, if any principal amount remains outstanding under this Note,
        the
        Company agrees it will provide Noteholder with ten calendar days’ advance
        written notice prior to any repayment. Following such notice, the Noteholder
        may
        at its election choose to convert pursuant to this Section 4 either the amount
        of principal proposed to be repaid, or the entire principal amount then
        outstanding. 

       

      4.4.    No
        fractional shares or scrip representing fractions of shares will be issued
        on
        conversion, but the number of shares issuable shall be rounded to the nearest
        whole share. Accrued interest on the converted portion of the Note shall
        be
        payable upon conversion thereof, in cash or Conversion Shares at the Conversion
        Price, at the Noteholder's option as specified in the Notice of Conversion.
        In
        all cases, the Company shall deliver the Conversion Shares to the Holder
        within
        five (5) Business Days after its receipt of the Notice of Conversion, and
        at the
        address specified in the Notice of Conversion.

       

      5.    Events
        of Default. 

       

      5.1.    Definition.
        For
        purposes of this Note, an “Event
        of Default”
shall
        be deemed to have occurred if:

       

      (a) the
        Company fails to pay within ten (10) days after written demand the Current
        Interest or Unused Funds Fee then due and payable on this Note; or

       

      (b) 
        the
        Company fails to pay in full the principal balance (including, without
        limitation, the Capitalized Interest) outstanding together with accrued but
        unpaid interest thereon on the Maturity Date; or 

       

      (c) the
        Company fails to pay the Termination Fee on the Termination Date;
        or

      


      (d) the
        Company makes an assignment for the benefit of creditors or admits in writing
        its inability to pay its debts generally as they become due; or an order,
        judgment or decree is entered adjudicating the Company bankrupt or insolvent;
        or
        any order for relief with respect to the Company is entered under the Federal
        Bankruptcy Code; or the Company petitions or applies to any tribunal for
        the
        appointment of a custodian, trustee, receiver or liquidator of the Company,
        or
        of any substantial part of the assets of the Company, or commences any
        proceeding relating to the Company under bankruptcy reorganization, arrangement,
        insolvency, readjustment of debt, dissolution or liquidation law of any
        jurisdiction; or any such petition or application is filed, or any such
        proceeding is commenced, against the Company and such petition, application
        or
        proceeding is not dismissed within sixty (60) days, or

      


      (e) the
        Company sells all or substantially all of its assets, or

       

       

      
        
          
          

        

        
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      (f) the
        Company materially breaches the Security Agreement, as amended by that Amendment
        No. 1 to the Security Agreement dated as of the date hereof made by the Company
        in favor of the Noteholder and Richard P. Kiphart.

      


      5.2.    Consequences
        of an Event of Default.
        If any
        Event of Default has occurred and is continuing, Noteholder may declare all
        or
        any portion of the outstanding principal balance of this Note (together with
        all
        accrued interest and all other amounts due and payable with respect to this
        Note) to be immediately due and payable and may demand, by written notice
        delivered to the Company, immediate payment of all or any portion of the
        outstanding principal balance of this Note (together with all such other
        amounts
        then due and payable under this Note). 

      


      6.    Waiver.
        The
        Company waives presentment, demand for performance, notice of nonperformance,
        protest, notice of protest, and notice of dishonor. No delay on the part
        of
        Noteholder in exercising any right hereunder shall operate as a waiver of
        such
        right under this Note. 

       

      7.    Collection.
        If the
        indebtedness represented by this Note or any part thereof is collected at
        law or
        in equity or in bankruptcy, receivership or other judicial proceedings or
        if
        this Note is placed in the hands of attorneys for collection after default,
        the
        Company agrees to pay, in addition to the principal and interest payable
        hereon,
        reasonable attorneys’ fees and costs incurred by Noteholder. 

       

      8.    Security.
        The
        Company’s obligations under this Note are secured by that certain Security
        Agreement, as amended by that Amendment No. 1 to the Security Agreement dated
        as
        of the date hereof made by the Company in favor of the Noteholder and Richard
        P.
        Kiphart.

       

      9.    General
        Provisions.

       

      9.1.    Notices.
        Any
        notice, request, demand or other communication required or permitted hereunder
        shall be in writing and shall be deemed to have been duly given (a) three
        (3)
        days after being sent by registered or certified mail, return receipt requested,
        or (b) on the first Business Day after being deposited with a nationally
        recognized overnight delivery service for next Business Day delivery, or
        (c)
        when personally delivered, in each case with all postage and fees prepared
        and
        addressed, as the case may be, to Noteholder at 227 W. Monroe Street, Suite
        2900, Chicago, Illinois 60606, Attention: Chief Executive Officer, or to
        the
        Company at the address below its name on the signature page hereof, with
        a copy
        to Reed Smith LLP., 10 S. Wacker Drive, Suite 4000, Chicago, Illinois 60606,
        Attention: Evelyn Arkebauer, or to such other person or address as either
        party
        shall designate to the other from time to time in writing delivered in like
        manner. 

       

      9.2.    Amendment.
        This
        Note amends and restates in its entirety that certain Second Amended and
        Restated Revolving Line of Credit Note dated August 12, 2008 heretofore
        delivered by Company to Noteholder (the "Original
        Note")
        and
        constitutes a renewal, extension and restatement of, and a replacement and
        substitute for the Original Note. The indebtedness evidenced by the Original
        Note is a continuing indebtedness and nothing herein shall be deemed to
        constitute a payment, settlement or novation of the Original Note. The
        provisions of this Note may be amended only by written agreement of the Company
        and Noteholder. 

       

      9.3.    Severability;
        Headings.
        In case
        any provision of this Note shall be invalid, illegal or unenforceable, the
        validity, legality and enforceability of the remaining provisions shall not
        in
        any way be effected or impaired thereby, unless to do so would deprive
        Noteholder or the Company of a substantial part of its bargain. All headings
        used herein are used for convenience only and shall not be used to construe
        or
        interpret this Note. 

       

      9.4.    Entire
        Agreement; Changes.
        This
        Note contains the entire agreement between the parties hereto superseding
        and
        replacing any prior agreement or understanding relating to the
        subject

       

       

      
        
          
          

        

        
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      matter
        hereof. Neither this Note nor any term hereof may be changed, waived, discharged
        or terminated orally but, except as provided in Section
        9.2
        above,
        only by an instrument in writing signed by the party against which enforcement
        of the change, waiver, discharge or termination is sought. 

       

      9.5.    Successors
        and Assigns.
        This
        Note shall be binding upon the Company’s successors and assigns.

       

      9.6.    Remedies
        Cumulative.
        The
        Noteholder’s rights and remedies set forth in this Note are not intended to be
        exhaustive and the exercise by Noteholder of any right or remedy does not
        preclude the exercise of any other rights or remedies that may now or
        subsequently exist in law or in equity or by statute or otherwise.

       

      9.7.    Governing
        Law.
        This
        Note shall be construed and enforced in accordance with, and governed by,
        the
        internal laws of the State of Illinois, excluding that body of law applicable
        to
        conflicts of law.

       

       

      [Signature
        on following page]

       

      
        
          
          

        

        
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      IN
        WITNESS WHEREOF, the Company has caused this Note to be signed in its name
        as of
        the date first written above.

       

      LIME
        ENERGY CO.

       

       

      By: 
        /s/ Jeffrey Mistarz
        
          

        

      

      Name:        
        Jeffrey
        Mistarz

      Title:         
        Chief
        Financial Officer

      Address:  
        1280
        Landmeier Road

      Elk
        Grove
        Village, IL 60007

      Attn:  Chief
        Financial Officer

      Facsimile: 
        (847) 437-4969

       

       

      
        
          
          

        

        
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                GRID
                  SHEET FOR 

                THIRD
                  AMENDED AND RESTATED REVOLVING LINE OF CREDIT NOTE

                 

                ADVANCES
                  AND PAYMENTS OF PRINCIPAL

              
	 	 	 	 	 
	
                Date

              	
                Amount
                  of Advance

              	
                Amount
                  of Principal Paid 

              	
                Unpaid
                  Principal Balance

              	
                Notation
                  Made By

              
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 


      

       

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