Unassociated Document


    
      EXHIBIT
        10.28

    

    


    NOTE
      ISSUANCE AGREEMENT

     

    This
      Note
      Issuance Agreement (this “Agreement”)
      is
      dated as of the 12th day of March, 2008, and is made by and between Lime Energy
      Co., a Delaware corporation (the “Company”),
      and
      Richard P. Kiphart (“Kiphart”)
      and
      Advanced Biotherapy, Inc. (“ADVB” and together with Kiphart, “Noteholders”).

     

    WITNESSETH:

     

    WHEREAS,
      the Company has issued to the Noteholders that certain Revolving Line of
Credit
      Note dated March 12, 2008 and due March 31, 2009, in the maximum principal
      amount of $3,000,000
      (the “Note”); and

     

    WHEREAS,
      the execution and delivery by the parties hereto of this Agreement is one of
      the
      conditions precedent to the obligation of Noteholders to make loans to the
      Company under the Note; and

     

    WHEREAS,
      the parties desire to set forth certain additional understandings among
      themselves relating to the obligations of the Company to Noteholders and to
      certain other matters, all as more fully described herein;

     

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

     

    1.  Condition
      to Advances.
      It
      shall be a condition to each advance under the Note that no Event of Default
      (as
      defined in the Note) 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.

     

    2.  Commitment
      by ADVB.
      ADVB
      hereby covenants and agrees that it has reserved cash
      or
      other immediately liquid assets in the amount of $1,500,000 and shall at all
      times while the 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 Note.

     

    3.  Subordination
      by Noteholders.
      Noteholders agree to subordinate the Note 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.

     

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

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    5.  Arbitration.
      In the
      event of any and all disagreements and controversies arising from this Agreement
      or the Note, 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. Either party 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, either
      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, neither 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 (excluding attorneys' fees) shall be paid by the
      non-prevailing party or as determined by the arbitrator.

     

    6.  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 Note
      permitted by the terms thereof.

     

    (c)  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 LENDER 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.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

    
      
        	
                LIME
                  ENERGY CO.

                 

                By:
                  /s
                  Jeffrey
                  Mistarz                                             
                  

                Name:
                  Jeffrey R. Mistarz

                Title:  
                  Executive Vice President and Chief Financial Officer

                 

                NOTEHOLDERS:

                


                By:
                  /s
                  Richard P. Kiphart 

                Name:
                  Richard
                  P.
                  Kiphart

                 

                Advanced Biotherapy
                  Inc.

                 

                By:
                  Christopher
                  W.
                  Capps                                    

                Christopher
                  W. Capps,
                  President