EX. 10.2.3 Q4'12






Exhibit 10.2.3


Execution Version
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT 
This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT is dated as of January 30, 2013 (this “Amendment”), among AMERESCO, INC. (the “Borrower”), THE GUARANTORS PARTY HERETO (the "Guarantors" and collectively with the Borrower, the "Credit Parties"), THE LENDERS PARTY HERETO (the “Lenders”), and BANK OF AMERICA, N.A., as administrative agent (the “Agent”).
WHEREAS, the Credit Parties, the Lenders, and the Agent are parties to that certain Second Amended and Restated Credit and Security Agreement dated as of June 30, 2011, among the Borrower, the Guarantors, the Lenders, and the Agent (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, the Credit Parties, the Agent and the Lenders wish to amend certain provisions of the Credit Agreement to clarify and correct certain provisions, as described herein; 
NOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the parties agree that the Credit Agreement is hereby amended as follows:
1.Capitalized Terms.  Capitalized terms used herein which are defined in the Credit Agreement have the same meanings herein as therein, except to the extent that such meanings are amended hereby.


2.Amendments to Credit Agreement. 


(a)Amendments to Section 1.1.  


i.Section 1.1 of the Credit Agreement is hereby amended by replacing the definition of "Total Funded Debt" with the following:


“Total Funded Debt” means the outstanding principal amount of all Indebtedness of the Core Ameresco Companies determined on a consolidated basis (without duplication) in respect of borrowed money, plus the face amount of letters of credit for which a Core Ameresco Company is an obligor to the extent such letters of credit are not secured by cash deposits, plus any obligations of the Borrower with respect to its Guarantees of the Design-Build Agreement to the extent such obligations are required to be accrued on the consolidated balance sheet of the Core Ameresco Companies in accordance with GAAP, including (i) all Indebtedness described in clauses (a), (b), (c) and (e) of the definition of Indebtedness set forth herein, including all guarantees of any of such Indebtedness, and (ii) all Renewable Energy Project Guaranty Liabilities, but excluding any Indebtedness incurred by the Credit Parties in connection with any Energy Conservation Project Financing.





ii.Section 1.1 of the Credit Agreement is hereby amended by adding the following additional definitions in alphabetical order:
“Design-Build Agreement” means the Design-Build Agreement dated as of December 20, 2012, between SRO LP and Ameresco Canada.
“Interface Agreement” means the Interface Agreement dated as of December 20, 2012, among Ameresco Canada, SRO LP and Black & McDonald Limited, a corporation organized under the laws of Ontario, Canada.
“SRO LP” means SRO LP, a limited partnership organized under the laws of Ontario, Canada.
(b)Amendments to Section 8.1.


i.Paragraph (c) of Section 8.1 of the Credit Agreement is hereby deleted in its entirety and replaced with the following paragraph:


(c)    Intercompany Indebtedness among the Core Domestic Ameresco Companies;
ii.Paragraphs (k), (l) and (m) of Section 8.1 of the Credit Agreement are hereby deleted in their entirety and replaced with the following four paragraphs:


(k)    Indebtedness of Ameresco Canada to the Borrower not to exceed $10,000,000, the proceeds of which are used to secure one or more letters of credit to secure obligations of Ameresco Canada under the Design-Build Agreement;
(l)    Indebtedness of the Foreign Subsidiaries (other than any Canadian Subsidiary) to any Credit Party in an aggregate principal amount not to exceed $1,000,000 outstanding at any time;
(m)    Hedging Agreements with a Lender or an Affiliate of a Lender or permitted by Section 8.5(c); and
(n)    Performance and surety bonds entered into by any Credit Party in the ordinary course of business.
(c)Amendments to Section 8.3.  Paragraph (f) of Section 8.3 of the Credit Agreement is hereby amended by deleting the word “and” at the end thereof, the final paragraph of paragraph (g) of Section 8.3 of the Credit Agreement is hereby modified to replace the period at the end thereof with a semi-colon, and Section 8.3 is hereby amended to add immediately after paragraph (g) thereof the following two paragraphs:
(h)    Guarantees by the Borrower of the obligations of Ameresco Canada under the Design-Build Agreement and the Interface Agreement, provided, however, that the maximum liability of the Borrower under such Guarantees shall not exceed the maximum 

2




aggregate liability of Ameresco Canada under the Design-Build Agreement, which is an amount equal to up to thirty-five percent (35%) of the contract price under the Design Build Agreement, subject to certain exclusions listed in the Design-Build Agreement; and
(i)    Obligations of Ameresco Canada or the Borrower under one or more letters of credit to secure a part of the obligations of Ameresco Canada under the Design-Build Agreement, provided that the aggregate of such obligations of the Borrower and Ameresco Canada under this paragraph (i) shall not exceed 10% of the contract price under the Design-Build Agreement, and provided, further, that the obligations of the Borrower under this paragraph (i) shall be a part of and not exceed the obligations of the Borrower under paragraph (h) of this Section 8.3.
(d)Amendment to Section 8.5.  Paragraph (i) of Section 8.5(a) of the Credit Agreement is hereby deleted in its entirety and replaced with the following:
(i)    Investments consisting of Indebtedness permitted by Section 8.1, Guarantees permitted by Section 8.3, and capital contributions by any Core Domestic Ameresco Company to any other Core Domestic Ameresco Company;
3.Confirmation of Guaranty by Guarantors.  Each Guarantor hereby confirms and agrees that all indebtedness, obligations or liability of the Borrower under the Credit Agreement as amended hereby, whether any such indebtedness, obligations and liabilities are now existing or hereafter arising, due or to become due, actual or contingent, or direct or indirect, constitute “Obligations” under and as defined in the Credit Agreement and, subject to the limitation set forth in Section 3.8 of the Credit Agreement, are guarantied by and entitled to the benefits of the Guaranty set forth in Article 3 of the Credit Agreement.  Each Guarantor hereby ratifies and confirms the terms and provisions of such Guarantor's Guaranty and agrees that all of such terms and provisions remain in full force and effect.
4.Confirmation of Security Interests.  Each Credit Party hereby confirms and agrees that all indebtedness, obligations and liabilities of the Credit Parties under the Credit Agreement as amended hereby, whether any such indebtedness, obligations and liabilities are now existing or hereafter arising, due or to become due, actual or contingent, or direct or indirect, constitute “Obligations” under and as defined in the Credit Agreement and are secured by the Collateral and entitled to the benefits of the grant of security interests pursuant to Article 4 of the Credit Agreement.  The Credit Parties hereby ratify and confirm the terms and provisions of Article 4 of the Credit Agreement and agree that, after giving effect to this Amendment, all of such terms and provisions remain in full force and effect.
5.No Default; Representations and Warranties, etc.  The Credit Parties hereby confirm that, after giving effect to this Amendment, the representations and warranties of the Credit Parties contained in Article 5 of the Credit Agreement and the other Loan Documents are true and correct on and as of the date hereof as if made on such date (except to the extent that such representations and warranties expressly relate to an earlier date) and no Default or Event of Default shall have occurred and be continuing.  Each Credit Party hereby further represents and warrants that (a) the execution, delivery and performance by such Credit Party of this Amendment (i) have been duly authorized by all necessary action on the part of such Credit 

3




Party, (ii) will not violate any applicable law or regulation or the organizational documents of such Credit Party, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding on such Credit Party or any of its assets, and (iv) do not require any consent, waiver, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or any Person (other than the Agent and the Lenders) which has not been made or obtained; and (b) it has duly executed and delivered this Amendment.
6.Conditions to Effectiveness.  This Amendment shall become effective upon the receipt by the Agent of the following:
(a)counterparts of this Amendment duly executed by each of the parties hereto or written evidence reasonably satisfactory to the Agent that each of the parties hereto has signed a counterpart of this Amendment; and
(b)payment by the Borrower to the Agent for the account of the Lenders of an amendment fee of $45,000.
7.Miscellaneous.
(a)Except to the extent specifically amended hereby, the Credit Agreement, the Loan Documents and all related documents shall remain in full force and effect.  This Amendment shall constitute a Loan Document.  Whenever the terms or sections amended hereby shall be referred to in the Credit Agreement, Loan Documents or such other documents (whether directly or by incorporation into other defined terms), such defined terms shall be deemed to refer to those terms or sections as amended by this Amendment.
(b)This Amendment may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but all counterparts shall together constitute one instrument.  Delivery of an executed counterpart to this Amendment by telecopy or other electronic means shall be effective as an original and shall constitute a representation that an original will be delivered.
(c)This Amendment shall be governed by the laws of the Commonwealth of Massachusetts and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
(d)The Credit Parties agree to pay all reasonable expenses, including legal fees and disbursements incurred by the Agent in connection with this Amendment and the transactions contemplated hereby.


[Signature Pages Follow]







4




    
IN WITNESS WHEREOF, the parties hereto have executed this Amendment which shall be deemed to be a sealed instrument as of the date first above written.
BORROWER


AMERESCO, INC.




By:  /s/  Andrew B. Spence    
Name: Andrew B. Spence
Title: Vice President & Chief Financial Officer


GUARANTORS
AMERESCO ENERTECH, INC.
By:  /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer
E.THREE CUSTOM ENERGY SOLUTIONS, LLC,
By: Sierra Energy Company, its sole member




By:  /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer
AMERESCOSOLUTIONS, INC.
By:  /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer
AMERESCO PLANERGY HOUSING, INC.




By:  /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer

[Signature Page to Amendment No. 2 to Second Amended Ameresco Credit and Security Agreement]




SOLUTIONS HOLDINGS, LLC
By: Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
AMERESCO FEDERAL SOLUTIONS, INC.




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer
SIERRA ENERGY COMPANY




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer
AMERESCO SELECT, INC.




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer
AMERESCO HAWAII LLC
By:  Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
AMERESCO SOLAR - SOLUTIONS, INC.




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer

[Signature Page to Amendment No. 2 to Second Amended Ameresco Credit and Security Agreement]




AMERESCO SOLAR-PRODUCTS LLC
By: Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
AMERESCO SOLAR, LLC
By:  Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
AMERESCO SOLAR - TECHNOLOGIES LLC
By:  Ameresco Solar LLC, its sole member
By:  Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
AMERESCO WOODLAND MEADOWS ROMULUS LLC
By:  Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
AMERESCO QUANTUM, INC.




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer

[Signature Page to Amendment No. 2 to Second Amended Ameresco Credit and Security Agreement]




AMERESCO EVANSVILLE, LLC
By:  Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
AMERESCO SOLAR NEWBURYPORT LLC 
By:  Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
APPLIED ENERGY GROUP INC.




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Treasurer
AMERESCO SOUTHWEST, INC.




By:   /s/  Andrew B. Spence    
Name: Andrew B. Spence
Title: Vice President and Treasurer
AMERESCO INTELLIGENT SYSTEMS, LLC
By: Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer

[Signature Page to Amendment No. 2 to Second Amended Ameresco Credit and Security Agreement]




AMERESCO ASSET SUSTAINABILITY GROUP LLC
By: Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer
SELDERRA LLC
By:  Ameresco, Inc., its sole member




By:   /s/  Andrew B. Spence    
Name:  Andrew B. Spence
Title:  Vice President & Chief Financial Officer







[Signature Page to Amendment No. 2 to Second Amended Ameresco Credit and Security Agreement]








AGENT:


BANK OF AMERICA, N.A.




By:  /s/  Angela Larkin    
Name:  Angela Larkin
Title:   Assistant Vice President




LENDERS:


BANK OF AMERICA, N.A.




By:  /s/  John F. Lynch    
Name:  John F. Lynch
Title:  Senior Vice President




WEBSTER BANK, N.A.




By:  /s/  Ann M. Meade    
Name:  Ann M. Meade
Title:  Senior Vice President



[Signature Page to Amendment No. 2 to Second Amended Ameresco Credit and Security Agreement]