Exhibit
10.2


 


FIRST
LOAN MODIFICATION AGREEMENT


 


This First Loan
Modification Agreement (this “Loan Modification Agreement’) is entered into as
of May 29, 2009 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
(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”.


 


3.             DESCRIPTION OF CHANGE IN TERMS.


 


Modifications to Loan Agreement.


 


A. The Loan Agreement is hereby amended by deleting Section 2.5(c) thereof
in its entirety and substituting the following text therefor:


 


“(c)         Letter of Credit Fee.  Bank’s customary fees and expenses for the
issuance or renewal of Letters of Credit, including, without limitation, a
Letter of Credit Fee of one and one-quarter of one percent (1.25%) per annum of
the face amount of each Letter of Credit issued (other than the Letter of
Credit # SVBSF005826 issued by Bank in May, 2009, with respect to which a
Letter of Credit Fee of one and three-quarters of one percent (1.75%) per annum
of the face amount of such Letter of Credit shall apply), upon the issuance,
each anniversary of the issuance, and the renewal of each Letter of Credit by
Bank;”


 


B. The Loan Agreement is hereby amended by deleting Section 6.7(a) thereof
in its entirety and substituting the following text therefor:


 


“(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.”


 


C.  The Loan
Agreement is hereby amended by adding a new Section 6.7(c) thereto
reading as follows:


 


“(c) At some point
during the period commencing on May 31, 2009 and ending on June 10,
2009, Borrower shall have unrestricted cash and/or Cash Equivalents on deposit
at Bank of at least $30,000,000.”


 


D.  The Loan
Agreement is hereby amended by deleting the definition of “Quick Assets” in Section 13.1thereof
in its entirety and substituting the following text therefor:


 

















 


““Quick Assets”
is, on any date, the sum of (i) Borrower’s unrestricted cash, plus (ii) Borrower’s
net accounts receivable, plus (iii) 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 (A) Thirty
Five Million Dollars ($35,000,000.00) and (B) sixty percent (60%) of
Borrower’s unrestricted cash plus net accounts receivable,  plus (iv) 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)), determined according to GAAP.”


 


E. 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.


 


4.             FEES. 
Borrower shall pay to Bank an amendment fee equal to Twenty Thousand
Dollars ($20,000.00) (the “Amendment Fee”), which shall be due on the date
hereof and shall be deemed fully earned as of the date hereof; provided,
however, that in the event that Borrower terminates the Letter of Credit #
SVBSF005826  issued by Bank in May,
2009 and replaces such Letter of Credit with another Letter of Credit (the “Replacement
Letter of Credit”) on or prior to June 30, 2009, Bank will credit the
Amendment Fee against the Letter of Credit Fee payable upon the issuance of the
Replacement  Letter of Credit.  In addition, Borrower shall also reimburse
Bank for all reasonable legal fees and expenses incurred in connection with
this amendment to the Existing Loan Documents.


 


5.             RATIFICATION OF PERFECTION CERTIFICATES. Borrower
hereby ratifies, confirms and reaffirms, all and singular, the terms and
disclosures contained in certain Perfection Certificate dated as of August 5,
2008   and acknowledges, confirms and
agrees the disclosures and information provided to Bank in the Perfection
Certificate has not changed, as of the date hereof.


 


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


 


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


 


8.             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.


 


9.             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.


 

















 


10.           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.


 


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


 


[signature page follows]


 

















 


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/
  Neal C. Isaacson

  	
   

  
	
  Name:
  

  	
  Neal
  C. Isaacson

  	
   

  
	
  Title:
  

  	
  CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ENERNOC SECURITIES CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:
  

  	
  /s/
  Neal C. Isaacson

  	
   

  
	
  Name:
  

  	
  Neal
  C. Isaacson

  	
   

  
	
  Title:
  

  	
  CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BANK:

  	
   

  
	
   

  	
   

  
	
  SILICON
  VALLEY BANK

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Dave Rodriguez

  	
   

  
	
  Name: 

  	
  Dave Rodriguez

  	
   

  
	
  Title: 

  	
  SVP

  	
   

  



 
















 


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
  Section 5.2 of the Agreement:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Financial Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quick
  Ratio (monthly)

  	
   

  	
  1.85 : 1.0 (1.40 : 1.0
  at 5/31/09)

  	
   

  	
  : 1.0

  	
   

  	
  Yes  No

  
	
  Tangible
  Net Worth (quarterly)

  	
   

  	
  $

  	
                *

  	
   

  	
  $

  	
   

  	
  Yes   No

  
										



 






*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:                                             1.85 : 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 1.85 :
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