Exhibit 10.1


 


SECOND
LOAN MODIFICATION AGREEMENT


 


This Second Loan
Modification Agreement (this “Loan Modification Agreement’) is entered into as
of April 23, 2010 by and among (a) SILICON
VALLEY BANK, a California corporation with its principal place of business
at 3003 Tasman Drive, Santa Clara, California 95054 and with a loan production
office located at One Newton Executive Park, Suite 200, 2221 Washington
Street, Newton, Massachusetts 02462 (“Bank”), and (b) ENERNOC, INC., a Delaware corporation (“EnerNOC”), and ENERNOC
SECURITIES CORPORATION, a Massachusetts corporation (“EnerNOC Securities”) (hereinafter, EnerNOC and EnerNOC
Securities are jointly and severally, individually and collectively, referred
to as “Borrower”).


 


1.             DESCRIPTION OF EXISTING INDEBTEDNESS
AND OBLIGATIONS. Among other indebtedness and obligations which may be owing by Borrower
to Bank, Borrower is indebted to Bank pursuant to a loan arrangement dated as
of August 5, 2008, evidenced by, among other documents, a certain Loan and
Security Agreement dated as of August 5, 2008 between Borrower and Bank,
as amended by that certain First Loan Modification Agreement dated as of May 29,
2009 between Borrower and Bank (collectively, the “Loan Agreement”).  Capitalized terms used but not otherwise
defined herein shall have the same meaning as in the Loan Agreement.


 


2.             DESCRIPTION OF COLLATERAL.  Repayment of the Obligations is secured by
the Collateral as described in the Loan Agreement. The Loan Agreement, together
with any other loan documents entered into by Borrower pursuant to which
collateral security has been or will be granted to Bank, are referred to herein
as the “Security Documents”; the Security Documents, together with all other documents evidencing
or securing the Obligations are referred to herein as the “Existing Loan
Documents”.


 


1.             DESCRIPTION OF CHANGE IN TERMS.


 


A.                                   Modifications to Loan Agreement.


 


1.                                       The Loan Agreement shall be amended by
deleting the following text, appearing in Section 2.1.2(a) thereof,
in its entirety:


 


“(a)         As part of the Revolving Line, Bank shall issue or
have issued Letters of Credit for Borrower’s account.  Such aggregate amounts utilized hereunder
shall at all times reduce the amount otherwise available for Advances under the
Revolving Line.  The face amount of
outstanding Letters of Credit (including drawn but unreimbursed Letters of
Credit and any Letter of Credit Reserve) may not exceed Thirty-Five Million
Dollars ($35,000,000.00), inclusive of Credit Extensions relating to Sections
2.1.1, 2.1.3, 2.1.4 and 2.1.5.”


 


and inserting in
lieu thereof the following:


 


“(a)         As part of the Revolving Line, Bank shall issue or
have issued Letters of Credit for Borrower’s account.  Such aggregate amounts utilized hereunder
shall at all times reduce the amount otherwise available for Advances under the
Revolving Line.  The face amount of
outstanding Letters of Credit (including drawn but unreimbursed Letters of
Credit and any Letter of Credit Reserve) may not exceed Fifty Million Dollars
($50,000,000.00), inclusive of Credit Extensions relating to Sections 2.1.1,
2.1.3, 2.1.4 and 2.1.5.”


 


2.                                       The Loan Agreement shall be amended by
deleting the following text, appearing in Section 2.1.3 thereof, in its
entirety:


 


“2.1.3     Foreign Exchange Sublimit. 
As part of the Revolving Line, Borrower may enter into foreign exchange
contracts with Bank under which Borrower commits to purchase from or sell to
Bank a specific amount of 


 

















 


Foreign Currency
(each, a “FX Forward Contract”) on
a specified date (the “Settlement Date”).
 FX Forward Contracts shall have a
Settlement Date of at least one (1) FX Business Day after the contract
date and shall be subject to a reserve of ten percent (10%) of each outstanding
FX Forward Contract in a maximum aggregate amount equal to Three Million Five
Hundred Thousand Dollars ($3,500,000.00) (such maximum shall be the  “FX Reserve”).”


 


and inserting in
lieu thereof the following:


 


“2.1.3     Foreign Exchange Sublimit. 
As part of the Revolving Line, Borrower may enter into foreign exchange
contracts with Bank under which Borrower commits to purchase from or sell to
Bank a specific amount of Foreign Currency (each, a “FX Forward Contract”) on a specified date (the “Settlement Date”).  FX Forward Contracts shall have a Settlement
Date of at least one (1) FX Business Day after the contract date and shall
be subject to a reserve of ten percent (10%) of each outstanding FX Forward
Contract in a maximum aggregate amount equal to Five Million Dollars
($5,000,000.00) (such maximum shall be the 
“FX Reserve”).”


 


3.                                       The Loan Agreement shall be amended by
deleting the following text, appearing in Section 2.1.4 thereof, in its
entirety:


 


“2.1.4     Cash Management Services Sublimit. 
Borrower may use up to 
Thirty-Five Million Dollars ($35,000,000.00), inclusive of Credit
Extensions made pursuant to Sections 2.1.1, 2.1.2, 2.1.3 and 2.1.5, of the
Revolving Line for Bank’s cash management services which may include merchant
services, direct deposit of payroll, business credit card, and check cashing
services identified in Bank’s various cash management services agreements
(collectively, the “Cash Management Services”).”


 


and inserting in
lieu thereof the following:


 


“2.1.4     Cash Management Services Sublimit. 
Borrower may use up to Fifty Million Dollars ($50,000,000.00), inclusive
of Credit Extensions made pursuant to Sections 2.1.1, 2.1.2, 2.1.3 and 2.1.5,
of the Revolving Line for Bank’s cash management services which may include
merchant services, direct deposit of payroll, business credit card, and check
cashing services identified in Bank’s various cash management services
agreements (collectively, the “Cash
Management Services”).”


 


4.                                       The Loan Agreement shall be amended by
deleting the following, appearing as Section 6.7(a) thereof, in its
entirety:


 


“(a)         Quick Ratio. A Quick Ratio of at least (i) 1.85 to 1.0 for
each month ending after the Effective Date through and including the month
ending April 30, 2009, (ii) 1.40 to 1.0 for the month ending May 31,
2009, and (iii) 1.85 to 1.0 for the month ending June 30, 2009 and
each month thereafter.”


 


and inserting in
lieu thereof the following:


 


“(a)         Quick Ratio. A Quick Ratio of at least (i) 1.85 to 1.0 for
each month ended after the Effective Date through and including the month ended
April 30, 2009, (ii) 1.40 to 1.0 for the month ended May 31,
2009, 


 


2

















 


(iii) 1.85 to
1.0 for the month ended June 30, 2009 through and including the month
ended March 31, 2010, and (iv) 2.0 to 1.0 for the month ending April 30,
2010 and each month thereafter. 
Notwithstanding the foregoing, Bank waives compliance with the foregoing
Quick Ratio requirement for the months ending April 30, 2010 and May 31,
2010 provided that Borrower is in compliance at all times with the Minimum Cash
covenant in Section 6.7(c).”


 


5.                                       The Loan Agreement shall be amended by
deleting the following, appearing as Section 6.7(b) thereof, in its
entirety:


 


“(b)         Tangible Net Worth.  To be tested
as of the last day of each of Borrower’s fiscal quarters, Tangible Net Worth of
at least (i) Seventy Million Dollars ($70,000,000.00) as of the quarters
ending June 30, 2008, September 30, 2008 and December 31, 2008, (ii) Fifty-Five
Million Dollars ($55,000,000.00) as of the quarter ending March 31, 2009,
and (iii) Fifty Million Dollars ($50,000,000.00) as of the quarter ending June 30,
2009 and as of the last day of each quarter thereafter.  Notwithstanding the foregoing, the amount
required in the prior sentence shall increase by an amount equal to fifty
percent (50.0%) of the gross proceeds received by Borrower from the sale of its
equity in financing transactions or the incurrence of Subordinated Debt after
the Effective Date.”


 


and inserting in
lieu thereof the following:


 


“(b)         Tangible Net Worth.  To be tested
as of the last day of each of Borrower’s fiscal quarters, Tangible Net Worth of
at least (i) Seventy Million Dollars ($70,000,000.00) as of the quarters
ended June 30, 2008, September 30, 2008 and December 31, 2008, (ii) Fifty-Five
Million Dollars ($55,000,000.00) as of the quarter ended March 31, 2009, (iii) Fifty
Million Dollars ($50,000,000.00) as of the quarter ended June 30, 2009
through and including the quarter ended December 31, 2009, and (iv) One
Hundred Million Dollars ($100,000,000.00) as of the quarter ended March 31,
2010 and as of the last day of each quarter thereafter.  Notwithstanding the foregoing, the amount
required in the prior sentence shall increase by an amount equal to fifty
percent (50.0%) of the gross proceeds received by Borrower from the sale of its
equity in financing transactions or the incurrence of Subordinated Debt after
the Effective Date.”


 


6.                                       The Loan Agreement shall be amended by
inserting the following new section 6.7(c) entitled “Minimum Cash”,
to appear immediately after section 6.7(b) thereof:


 


“(c)         Minimum Cash.  During the
period commencing on April 30, 2010 through and including June 30,
2010, maintain at all times unrestricted cash and/or Cash Equivalents on
deposit with Bank and/or SVB Securities of at least Twenty-Five Million Dollars
($25,000,000.00).”


 


7.                                       The Loan Agreement shall be amended by
deleting the following definition appearing in Section 13.1 thereof:


 


“              “Revolving Line”
is an Advance or Advances in an aggregate amount of up to Thirty-Five Million
Dollars ($35,000,000.00) outstanding at any time.”


 


3

















 


and inserting in lieu thereof the following:


 


“              “Revolving Line”
is an Advance or Advances in an aggregate amount of up to Fifty Million Dollars
($50,000,000.00) outstanding at any time.”


 


8.                                       The Loan Agreement is hereby amended by
deleting Exhibit B thereto in its entirety and substituting the Exhibit B
in the form attached hereto as Schedule 1 therefor.


 


3.             FEES.  Borrower shall pay to Bank a modification fee
equal to Fifty Thousand Dollars ($50,000.00), which fee shall be due on the
date hereof and shall be deemed fully earned as of the date hereof.  Borrower shall also reimburse Bank for all
legal fees and expenses incurred in connection with this amendment to the
Existing Loan Documents.


 


4.             PERFECTION CERTIFICATES.  EnerNOC has delivered an updated Perfection
Certificate in connection with this Loan Modification Agreement (the “Updated
Perfection Certificate” ) dated as of April 23, 2010, which Updated
Perfection Certificate shall supersede in all respects that certain Perfection
Certificate dated as of August 5, 2008 delivered by EnerNOC. 
Borrower agrees that all references in the Loan Agreement to “Perfection
Certificate” with respect to EnerNOC shall hereinafter be deemed to be a
reference to the Updated Perfection Certificate. Borrower hereby ratifies,
confirms and reaffirms, all and singular, the terms and disclosures contained
in certain Perfection Certificate dated as of August 5, 2008 delivered by
EnerNOC Securities and acknowledges, confirms and agrees the disclosures and
information provided to Bank in the Perfection Certificate delivered by EnerNOC
Securities have not changed, as of the date hereof.


 


5.             CONSISTENT CHANGES.  The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.


 


6.             RATIFICATION OF LOAN
DOCUMENTS.  Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to Bank, and confirms that the indebtedness secured thereby includes, without
limitation, the Obligations.


 


7.             NO DEFENSES OF BORROWER.  Borrower hereby acknowledges and agrees that
Borrower has no offsets, defenses, claims, or counterclaims against Bank with
respect to the Obligations, or otherwise, and that if Borrower now has, or ever
did have, any offsets, defenses, claims, or counterclaims against Bank, whether
known or unknown, at law or in equity, all of them are hereby expressly WAIVED
and Borrower hereby RELEASES Bank from any liability thereunder.


 


8.             CONTINUING VALIDITY.  Borrower understands and agrees that in
modifying the existing Obligations, Bank is relying upon Borrower’s
representations, warranties, and agreements, as set forth in the Existing Loan
Documents.  Except as expressly modified
pursuant to this Loan Modification Agreement, the terms of the Existing Loan
Documents remain unchanged and in full force and effect.  Bank’s agreement to modifications to the
existing Obligations pursuant to this 
Loan Modification Agreement in no way shall obligate Bank to make any
future modifications to the Obligations. 
Nothing in this Loan Modification Agreement shall constitute a
satisfaction of the Obligations.  It is
the intention of Bank and Borrower to retain as liable parties all makers of
Existing Loan Documents, unless the party is expressly released by Bank in
writing.  No maker will be released by
virtue of this Loan Modification Agreement.


 


4

















 


9.             JURISDICTION/VENUE.  Borrower accepts for itself and in connection
with its properties, unconditionally, the exclusive jurisdiction of any state
or federal court of competent jurisdiction in the Commonwealth  of Massachusetts in any action, suit, or proceeding
of any kind against it which arises out of or by reason of this Loan
Modification Agreement; provided, however, that if for any reason Bank cannot
avail itself of the courts of the Commonwealth 
of Massachusetts, then venue shall lie in Santa Clara County,
California.  NOTWITHSTANDING THE
FOREGOING,  THE BANK SHALL HAVE THE RIGHT
TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE
IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE BANK’S RIGHTS
AGAINST THE BORROWER OR ITS PROPERTY.


 


10.           COUNTERSIGNATURE.  This Loan Modification Agreement shall become
effective only when it shall have been executed by Borrower and Bank.


 


[signature page follows]


 


5

















 


IN
WITNESS WHEREOF,
the parties hereto have caused this Loan Modification Agreement to be executed
as a sealed instrument under the laws of the Commonwealth of Massachusetts as
of the date above written.


 


 


BORROWER:


 


	
  ENERNOC, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Timothy Weller

  	
   

  
	
  Name:

  	
  Timothy
  Weller

  	
   

  
	
  Title:

  	
  Chief
  Financial Officer and Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ENERNOC SECURITIES
  CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Timothy Weller

  	
   

  
	
  Name:

  	
  Timothy
  Weller

  	
   

  
	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BANK:

  	
   

  
	
   

  	
   

  
	
  SILICON
  VALLEY BANK

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Christopher Leary

  	
   

  
	
  Name:

  	
  Christopher
  Leary

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  



 
















 


SCHEDULE 1


 


EXHIBIT B


COMPLIANCE
CERTIFICATE


 


	
  TO:

  	
  SILICON VALLEY BANK

  	
  Date:

  	
   

  
	
  FROM:

  	
  ENERNOC, INC. and
  ENERNOC SECURITIES CORPORATION

  	
   

  



 


The
undersigned authorized officer of ENERNOC, INC. and ENERNOC SECURITIES
CORPORATION (individually and collectively, jointly and severally, “Borrower”)
certifies that under the terms and conditions of the Loan and Security
Agreement between Borrower and Bank (as amended, the “Agreement”), (1) Borrower
is in complete compliance for the period ending
                              
with all required covenants except as noted below, (2) there are no Events
of Default, (3) all representations and warranties in the Agreement are
true and correct in all material respects on this date except as noted below;
provided, however, that such materiality qualifier shall not be applicable to
any representations and warranties that already are qualified or modified by
materiality in the text thereof; and provided, further that those
representations and warranties expressly referring to a specific date shall be
true, accurate and complete in all material respects as of such date, (4) Borrower,
and each of its Subsidiaries, has timely filed all required tax returns and
reports, and Borrower has timely paid all foreign, federal, state and local
taxes, assessments, deposits and contributions owed by Borrower except as
otherwise permitted pursuant to the terms of Section 5.8 of the Agreement,
and (5) no Liens have been levied or claims made against Borrower or any
of its Subsidiaries relating to unpaid employee payroll or benefits of which
Borrower has not previously provided written notification to Bank.  Attached are the required documents
supporting the certification.  The
undersigned certifies that these are prepared in accordance with GAAP consistently
applied from one period to the next except as explained in an accompanying
letter or footnotes.  The undersigned
acknowledges that no borrowings may be requested at any time or date of
determination that Borrower is not in compliance with any of the terms of the
Agreement, and that compliance is determined not just at the date this
certificate is delivered.  Capitalized
terms used but not otherwise defined herein shall have the meanings given them
in the Agreement.


 


Please indicate compliance status
by circling Yes/No under “Complies” column.


 


	
  Reporting
  Covenant

  	
   

  	
  Required

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quarterly Financial
  Statements on Form 10-Q

  	
   

  	
  Quarterly within 45
  days

  	
   

  	
  Yes   No

  
	
  Monthly Compliance
  Certificate

  	
   

  	
  Monthly within 45 days

  	
   

  	
  Yes   No

  
	
  Annual financial
  statements (CPA Audited) on 10-K  together with an unqualified audited
  opinion

  	
   

  	
  FYE within 90 days

  	
   

  	
  Yes   No

  
	
  8-K, 10-Q and 10-K
  filings

  	
   

  	
  Within 5 days after SEC
  filing

  	
   

  	
  Yes   No

  
	
  A/R and A/P agings and
  statement of account balances

  	
   

  	
  As requested by Bank

  	
   

  	
  Yes   No

  
	
  Board projections

  	
   

  	
  60 days after FYE

  	
   

  	
  Yes   No

  



 


Contracts entered into during
month by Borrower restricting grant of security interest to Bank pursuant to Section5.2
of the Agreement:


 


	
  Financial
  Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quick Ratio (monthly)

  	
   

  	
            :
  1.0*

  	
   

  	
          :
  1.0

  	
   

  	
  Yes   No

  
	
  Tangible Net Worth
  (quarterly)

  	
   

  	
  $              **

  	
   

  	
  $

  	
   

  	
  Yes   No

  
	
  Minimum Cash
  (April 30, 2010 through  June 30, 2010)

  	
   

  	
  $25,000,000.00

  	
   

  	
  $

  	
   

  	
  Yes   No

  



 






*As set forth in Section 6.7(a) of the Loan
and Security Agreement.


**As set forth in Section 6.7(b) of the Loan and Security
Agreement.


 

















 


The following financial covenant analyses and
information set forth in Schedule 1 attached hereto are true and accurate as of
the date of this Certificate.


 


The following are the exceptions with respect
to the certification above:  (If no
exceptions exist, state “No exceptions to note.”)


 


 


	
  ENERNOC,
  INC.

  	
   

  	
  BANK USE ONLY

  
	
  ENERNOC
  SECURITIES CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
  Received by:

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  AUTHORIZED
  SIGNER

  
	
  Name:

  	
   

  	
   

  	
  Date:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Verified:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  AUTHORIZED
  SIGNER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  	
  Compliance Status:      Yes      No

  
								



 

















 


Schedule 1 to Compliance Certificate


Financial Covenants of Borrower


 


Dated:_________________


 


In the event of a
conflict between this Schedule and the Loan Agreement, the terms of the Loan
Agreement shall control.


 


I.              QUICK RATIO (Section 6.7(a))


 


Required:               2.00: 1.00 (1.40 : 1.0 at 5/31/09)


 


Actual:                        : 1.00


 


	
  A.

  	
  Aggregate value of the
  unrestricted cash of Borrower

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Aggregate value of the net
  accounts receivable of Borrower plus unbilled amounts on Borrower’s balance
  sheet that are contractually owing to Borrower from PJM and that are payable
  within the next twelve (12) months in an amount not to exceed the lesser of
  (i) Thirty Five Million Dollars ($35,000,000.00) and (ii) sixty
  percent (60%) of Borrower’s unrestricted cash plus net accounts receivable.

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Marketable securities
  that are immediately available for sale (but specifically excluding any
  auction rate securities other than an amount equal to fifty percent (50.0%)
  of the value of the Permitted Auction Rate Securities up to One Million Four
  Hundred Fifty Thousand Dollars  ($1,450,000.00))

  	
   

  	
  $

   

  $

  
	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
  Quick Assets (the sum
  of lines A, B and C)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
  Aggregate value of obligations
  and liabilities of Borrower to Bank, including Letters of Credit

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
  Quick Ratio (line D
  divided by line E)

  	
   

  	
   

  



 


Is line F equal to
or greater than 2:00: 1.00 (1.40: 1.0 at 5/31/09)?


 


	
   

  	
  o   No, not in compliance

  	
  o   Yes, in compliance

  



 


II.            TANGIBLE NET WORTH (Section 6.7(b))


 


	
  Required:

  	
  $                                  (see Section 6.7(b))

  
	
   

  	
   

  
	
  Actual:

  	
  $

  



 


Is Tangible Net
Worth at least
$                                    
(see Section 6.7(b))?


 


	
   

  	
  o   No, not in compliance

  	
  o   Yes, in compliance

  



 


III.           MINIMUM CASH (Section 6.7(c))


 


Required:               $25,000,000.00 (April 30, 2010 through June 30,
2010, see Section 6.7(c))


 


Actual:                   $


 


Is Minimum Cash at
least $25,000,000.00 (see Section 6.7(c))?


 


	
   

  	
  o   No, not in
  compliance

  	
  o   Yes, in
  compliance