EXHIBIT 10.4
EQUIPMENT TERM NOTE
$500,000.00 July _____, 2000
Chicago, Illinois
On or before July _____, 2003, Electric City Corp., a Delaware
corporation, (the "Undersigned"), whose address is1280 Landmeier Road, Elk Grove
Village, Illinois 60007, for value received, promises to pay to the order of
LaSalle Bank National Association, a national banking association (hereinafter,
together with any holder hereof, called "Lender"), whose address is 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 the principal sum of FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($500,000.00). The undersigned also promises to pay
to the Lender interest on the unpaid principal amount hereof from time to time
outstanding from the date hereof until maturity (whether by acceleration or
otherwise) and, after maturity, until paid, at the interest rates and at such
times as are provided in that certain Loan Agreement, dated as of June 28, 2000
between the Undersigned and the Lender (the "Loan Agreement"). This Note is
executed pursuant to the Loan Agreement and any and all amendments thereto, in
which the terms and conditions of the Equipment Term Loan are set forth. Terms
not otherwise defined herein shall have the meanings assigned thereto in the
Loan Agreement.
The principal amount of the indebtedness evidenced hereby shall be
payable in _____ equal installments of $__________ on the first day of each
month (each such date a "Payment Date") with the first payment due on
__________________. Interest on the unpaid principal balance hereof shall be
payable on each Payment Date. After maturity, whether by acceleration or
otherwise, interest shall be payable on demand. Interest shall be computed on
the basis of a year consisting of 360 days and shall be paid for the actual
number of days elapsed, unless otherwise specified herein.
Principal and interest shall be paid to the Lender at its address set
forth above or at such other place as the holder of this Note shall designate in
writing to the Undersigned. Payments of both principal and interest are to be
made in lawful money of the United States of America in same day or immediately
available funds to the account designated by the Lender.
This Note is secured by, among other things, that certain Security
Agreement dated as of June 28, 2000 by and between the Undersigned and the
Lender (the "Security Agreement"); and that certain Mortgage dated as of July
_____, 2000 by and between the Undersigned and the Lender (the "Mortgage"; with
the Loan Agreement, the Security Agreement and the Mortgage, together with all
other documents executed in connection with the Loan Agreement hereinafter
collectively referred to as the "Ancillary Agreements"). The undersigned hereby
acknowledges and agrees that a default hereunder shall be deemed a default under
the Ancillary Agreements, including that certain Term (Mortgage) Note dated as
of July _____, 2000 in the original principal amount of $500,000.00 given by the
Undersigned to the Lender, and that certain Note dated June 28, 2000 in the
original principal amount of $2,000,000.00 given by the Undersigned to the
Lender.
The Undersigned, without notice or demand of any kind, shall be in
default hereunder upon the occurrence and during the continuance of any Event of
Default set forth in the Loan Agreement, and without demand or notice of any
kind, the entire unpaid amount of all Liabilities shall become immediately due
and payable at the option of the Lender, and the Lender may take any action or
avail itself of any remedy set forth in the Loan Agreement.
UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT,
THE UNDERSIGNED WAIVES THE BENEFIT OF ANY LAW, TO THE EXTENT PERMITTED BY LAW,
THAT WOULD OTHERWISE RESTRICT OR LIMIT LENDER IN THE EXERCISE OF ITS RIGHT,
WHICH IS HEREBY ACKNOWLEDGED, TO APPROPRIATE WITHOUT NOTICE AND REGARDLESS OF
THE COLLATERAL, AT ANY TIME HEREAFTER, ANY INDEBTEDNESS MATURED OR UNMATURED,
OWING FROM LENDER TO THE UNDERSIGNED. UPON THE OCCURRENCE AND DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT, THE LENDER MAY, WITHOUT DEMAND OR NOTICE OF
ANY KIND, APPROPRIATE AND APPLY TOWARD THE PAYMENT OF SUCH OF THE OBLIGATIONS,
AND IN SUCH ORDER OF APPLICATION, AS THE LENDER MAY, FROM TIME TO TIME ELECT,
ANY AND ALL SUCH BALANCES, CREDITS, DEPOSITS, ACCOUNTS, MONEYS, CASH EQUIVALENTS
AND OTHER ASSETS, OF OR IN THE NAME OF THE UNDERSIGNED THEN OR THEREAFTER WITH
THE LENDER.
UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT,
THE UNDERSIGNED RATIFIES AND CONFIRMS WHATEVER LENDER MAY DO WITH RESPECT TO THE
COLLATERAL AND AGREES THAT LENDER SHALL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT
OR MISTAKES OF FACT OR LAW MADE IN GOOD FAITH. THE LENDER AND THE UNDERSIGNED
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY, THE RIGHT EITHER OR
ANY MAY HAVE TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED HEREON,
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE LOAN AGREEMENT OR
ANY OF THE OTHER LIABILITIES, OR THE COLLATERAL, OR ANY AGREEMENT, EXECUTED OR
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THE LOAN AGREEMENT OR HEREWITH
OR ANY COURSE OF CONDUCT OR COURSE OF DEALING, IN WHICH THE LENDER AND THE
UNDERSIGNED ARE ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LENDER GRANTING ANY FINANCIAL ACCOMMODATION TO THE UNDERSIGNED.
The Undersigned waives any and all presentment, demand, notice of
dishonor, protest, and all other notices and demands in connection with the
enforcement of Xxxxxx's rights hereunder and under the Loan Agreement, and
hereby consents to, and waives notice of release, with or without consideration,
of the Undersigned or of any Collateral.
The Lender may at any time transfer this Note and Xxxxxx's rights in
the Loan Agreement and in any or all of the Collateral, and Lender thereafter
shall be relieved from all liability with respect to such Collateral.
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TO INDUCE THE LENDER TO MAKE THE LOAN EVIDENCED BY THIS NOTE, THE
UNDERSIGNED IRREVOCABLY AGREES THAT, ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY
AS A RESULT OR IN CONSEQUENCE OF THIS NOTE, THE LOAN AGREEMENT OR ANY OTHER
AGREEMENT WITH THE LENDER, OR THE COLLATERAL, SHALL BE INSTITUTED AND LITIGATED
ONLY IN COURTS HAVING SITUS IN THE CITY OF CHICAGO, ILLINOIS, AND THE
UNDERSIGNED HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE
OR FEDERAL COURT LOCATED AND HAVING ITS SITUS IN SAID CITY, AND WAIVES ANY
OBJECTION BASED ON FORUM NONCONVENIENS.
The Equipment Term Loan evidenced hereby has been made and this Note
has been delivered at the Lender's main office. This Note shall be governed and
construed in accordance with the laws of the State of Illinois, in which state
it shall be performed, and shall be binding upon the Undersigned and its
successors and assigns. If this Note contains any blanks when executed by the
Undersigned, the Lender is hereby authorized, without notice to the Undersigned,
to complete any such blanks according to the terms upon which the Equipment Term
Loan was granted. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or be invalid under
such law, such provision shall be severable, and be ineffective to the extent of
such prohibition or invalidity, without invalidating the remaining provisions of
this Note. If more than one party shall execute this Note, the term
"Undersigned" as used herein shall mean all parties signing this Note, and each
one of them, and all such parties, their respective heirs, executors,
administrators, successors and assigns, shall be, jointly and severally,
obligated hereunder.
As used herein, all provisions shall include the masculine, feminine,
neuter, singular and plural thereof, wherever the context and facts require such
construction and in particular the word "Undersigned" shall be so construed.
IN WITNESS WHEREOF, the Undersigned has executed this
Equipment Term Note on the date above set forth.
ELECTRIC CITY CORP.
By: /s/ Xxxxxxx Xxxxxxx
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Its: Chief Financial Officer
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