Exhibit 10.1
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 |
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
