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Exhibit
10.1
EXECUTION COPY
THIRD AMENDMENT TO
ADDITIONAL INVESTMENT SENIOR SECURED
CONVERTIBLE PROMISSORY
NOTES
THIRD AMENDMENT TO
ADDITIONAL INVESTMENT SENIOR SECURED CONVERTIBLE PROMISSORY
NOTES (this “ Third Amendment ”), dated as
of May 22, 2008, by and between Distributed Energy
Systems Corp., a Delaware corporation (the “ Company
” ) and Perseus Partners VII, L.P., a Delaware limited
partnership (the “ Holder ”). Unless otherwise
indicated, all capitalized terms used herein and not otherwise
defined have the respective meanings provided such terms in the
Purchase Agreement and the Notes referred to below.
W I T
N E S S E T H
:
WHEREAS , the Company
and the Holder are parties to a Securities Purchase Agreement,
dated as of May 10, 2007 and amended on March 13, 2008
(as further amended, modified and/or restated from time to time,
the “ Purchase Agreement ”);
WHEREAS , under the
terms of the Purchase Agreement, on March 13, 2008 the Company
issued to the Holder a senior secured convertible promissory note
in the principal amount of $1,500,000.00 (the “ Additional
Investment Note ”);
WHEREAS , on
April 1, 2008, the Company issued to the Holder an additional
senior secured convertible promissory note in the principal amount
of $488,304.12 as payment for interest due and payable on the
Additional Investment Note (the “ PIK Note ”,
and together with the Additional Investment Note, the “
Notes ”, and each individually, a “ Note
”);
WHEREAS , the Company
and the Holder amended certain provisions of the Notes effective
May 8, 2008 (the “ First Amendment ”) and
effective May 16, 2008; and
WHEREAS , the Company
has requested an amendment of certain provisions of the Notes as
herein provided;
NOW, THEREFORE, it is
agreed:
1. Amendment of Each
Note . The Holder and the Company hereby agree that as of the
Third Amendment Effective Date (as defined below) and through 11:59
p.m. EDT on May 30, 2008, Section 4(i) of each Note is
amended by:
(a) setting the Net Working
Capital benchmark at $1,250,000; and
(b) setting the unrestricted
cash and cash equivalents benchmark at $2,000,000.
After 11:59 p.m. EDT on May 30,
2008, each benchmark will revert to the benchmark in place prior to
the effective date of the First Amendment.
2. Representations and
Warranties . The representations and warranties of the Company
contained in the Purchase Agreement or in any other Transaction
Document that are qualified as to materiality are true and correct,
and all other re
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