Exhibit 10.1


 


2009 REVOLVING LINE OF
CREDIT NOTE


 


	
  $2,000,000

  	
   

  	
  Dated: August 10, 2009

  



 


Lime Energy Co., a Delaware corporation (the “Company”),
for value received, promises to pay to Richard P. Kiphart (“Noteholder”),
the principal amount of Two Million Dollars ($2,000,000.00) (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 2009 Note Issuance
Agreement (“Issuance Agreement”) dated of even date herewith, by and between
the Company and Noteholder, and the obligation of the Noteholder to make
advances is subject to the Company’s compliance with the conditions set forth
in the 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.  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 day of each calendar quarter, commencing on October 1, 2009, and
continuing until the principal balance hereunder shall have been paid in
full.  The Capitalized Interest shall be
added to the then outstanding principal balance of this Note on the first
calendar day of each calendar 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.  Without limiting the foregoing,
the Company shall be obligated to pay a minimum of three (3) months’
Current Interest and Capitalized Interest on the principal amount of each
advance from the date of its disbursement to the Company unless such advance
shall be repaid in three (3) months or more from the date of its
disbursement.


 


1.2                                 Principal.  The entire outstanding principal balance and
all accrued and unpaid interest shall be immediately due and payable on February 10,
2010 (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 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) seven percent (7%) 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 (as hereinafter
defined) 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.  “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.


 


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”) equal to the
difference (if positive) between (i) Seventy Thousand Dollars
($70,000.00), and (ii) the sum of the aggregate Unused Funds Fee and the
amount of Current Interest and Capitalized Interest actually received by
Noteholder determined as of the Termination Date.


 


4.                                       [Intentionally
Omitted].


 


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.


 


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 2009 Security Agreement dated as of the date hereof
made by the Company in favor of the Noteholder.


 


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 c/o William Blair & Co. LLC, 222 West
Adams Street, Chicago, Illinois 60606, or to the Company at the address below
its name on the signature page hereof, 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.  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.  AH 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 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.


 


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., a Delaware corporation  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey R. Mistarz

  
	
   

  	
  Name: 

  	
  Jeffrey R. Mistarz  

  
	
   

  	
  Title: 

  	
  Executive Vice President and

  Chief Financial Officer  

  
	
   

  	
  Address: 

  	
  1280 Landmeier Road  

  Elk Grove, Illinois 60007  

  Attn: Chief Financial Officer  

  Facsimile: (847) 437-4969

  
				



 

















 


GRID SHEET FOR


2009 REVOLVING LINE OF
CREDIT NOTE


 


ADVANCES AND PAYMENTS OF
PRINCIPAL


 


	
  Date

  	
   

  	
  Amount of

  Advance

  	
   

  	
  Amount of

  Principal Paid

  	
   

  	
  Unpaid Principal

  Balance

  	
   

  	
  Notation Made By