Exhibit 10.30
AMENDED AND RESTATED
REVOLVING LINE OF CREDIT NOTE
No. AR - 1
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$9,500,000
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Dated:
June 6, 2008
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Lime
Energy Co., a Delaware corporation (the “
Company ”),
for value received, promises to pay to Richard P. Kiphart
(“
Noteholder ”),
the principal amount of Nine Million Five Hundred Thousand Dollars
($9,500,000) (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 AR Note Issuance Agreement dated of even
date herewith, by and among the Company, Noteholder and the other
lender named therein, and the obligation of the Noteholder to make
advances is subject to the Company’s compliance with the
conditions set forth in the 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 day of each
calendar quarter, commencing on June 1, 2008 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
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 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 (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 (10
th )
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 ”)
calculated by dividing (a) Four Hundred Seventy-Five Thousand
Dollars ($475,000) 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 is equal to the lower
of $7.93 or the average of the last reported sales price of one
share of the Common Stock on the Nasdaq Capital Market for each of
the thirty consecutive trading days ending on the date immediately
preceding the Maturity Date.
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. 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.
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.
General Provisions.
8.1
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, 222 W. Adams, Chicago, Illinois 60606, or to the
Company at the address below its name on the signature page
hereof,
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