exv10w2



 





Exhibit 10.2




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”).



W I T N E S S E T H:




     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: 

Name:

	 	/s/ Jeffrey Mistarz
 

Jeffrey R. Mistarz
	 	 
	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






NOTEHOLDERS:




	 	 	 	 	 
	By:
Name:
	 	/s/ Richard P. Kiphart
 

Richard P. Kiphart	 	 







Advanced Biotherapy Inc.



	 	 	 	 	 
	By:

	 	Christopher W. Capps
 

     Christopher W. Capps, President