Exhibit 10.1


DEMAND RESPONSE RESOURCE
PURCHASE AGREEMENT


BY AND BETWEEN


ENERNOC, INC.


AND


SOUTHERN
CALIFORNIA EDISON COMPANY


This Demand Response
Resource Purchase Agreement, together with its exhibits and attachments (the “Agreement”)
is entered into by and between Southern California Edison Company, a California
corporation (“Buyer” or “SCE”), and EnerNOC, Inc., a Delaware corporation (“Seller”),  as of September 27, 2007 (“Execution Date”).  Buyer and Seller are sometimes referred to
herein individually as a “Party” and collectively as “Parties.”


Whereas, in Decision 06-11-049, issued November 17,
2006, the California Public Utilities Commission (the “Commission”) directed
SCE to procure additional demand response resources (“DR Resources”) for the
summer of 2007 and beyond, and to seek Commission approval of the additional DR
Resources by filing an application no later than February 28, 2007;


Whereas, on January 29, 2007, SCE issued a bilateral
solicitation for DR Resources (“DR Bilateral Solicitation”) seeking proposals
from potential bidders to sell DR Resources to SCE;


Whereas, Seller submitted one or more offers (the “Offer”)
in response to the DR Bilateral Solicitation;


Whereas, the Parties entered into that certain Demand
Response Resource Purchase Agreement, dated as of February 27, 2007, pursuant
to which Seller agreed, among other things, to provide DR Resources in SCE’s
territory for 2007 and 2008, which agreement is and shall remain in full force
and effect; and


Whereas, the Parties wish to enter into this Agreement
to provide for the sale by Seller and purchase by SCE of additional DR
Resources.


NOW, THEREFORE, in consideration of these recitals and
the agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, agree as follows.


ARTICLE 1:  TRANSACTION ELEMENTS


1.1                               Purchase and Sale of
the DR Resource


During the Term of this
Agreement, Seller shall deliver and sell, and SCE shall purchase and receive,
the DR Resource (as defined in Section 1.4 below) subject to and in accordance
with the terms and conditions of this Agreement.  Seller represents, warrants, and covenants
that it will deliver the DR Resource to SCE free and clear of all liens,
security interests, claims and encumbrances. 
Seller shall not sell, assign or otherwise transfer the DR Resource, or
any portion thereof, to any third party other than to SCE pursuant to this
Agreement.


1.2                               Term.


The “Term” of this Agreement
shall commence upon Final Commission Approval (as defined in Article 2 below)
and shall continue in full force and effect until December 31, 2012, unless
earlier terminated in accordance with the terms and conditions of this
Agreement.


1.3                               Delivery Period.


The Delivery Period shall consist of the Delivery
Days, Delivery Hours, and Operating Months as set forth below.


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.













 


DEMAND RESPONSE RESOURCE PURCHASE AGREEMENT


BETWEEN


ENERNOC
INC. AND SOUTHERN CALIFORNIA EDISON


Delivery Days shall be defined as follows:


(a)                                  Monday
through Friday, excluding North
American Electric Reliability Corporation (NERC) holidays


Delivery Hours shall be defined as follows:


(b)                                 [***] — [***]


Operating
Months shall be defined as follows:


(c)                                  Calendar
months during the Term that contain Contract Capacity


1.4                               DR Resource


The DR Resource shall consist of the DR Resource Type
and DR Resource Capacity Nominations and Rates as set forth below.


DR Resource Type shall be defined as follows:


(a)                                  DR
Resource Type Table


	
  Resource ID

  	
   

  	
  Minimum

  Duration per

  Event

  	
   

  	
  Maximum

  Duration per

  Event

  	
   

  	
  Maximum

  Events per Day

  	
   

  	
  Maximum Event

  hours per Month

  and Year

  
	
  Bundled

  All zones

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [**] hours / month & [**] hours per calendar
  year

  
	
  DA, CCA

  All zones

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [**] hours / month & [**] hours per calendar
  year

  



 


DR Resource Capacity Nominations and Rates shall be
defined as follows:


(b)                                 DR
Resource Capacity Nominations and Rates Tables


Year 2008


	
  Month

  	
   

  	
  January

  	
   

  	
  February

  	
   

  	
  March

  	
   

  	
  April

  	
   

  	
  May

  	
   

  	
  June

  
	
  DR
  Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity
  Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy
  Credit Rate

  	
   

  	
  $[***] per MWh

  



 


	
  Month

  	
   

  	
  July

  	
   

  	
  August

  	
   

  	
  September

  	
   

  	
  October

  	
   

  	
  November

  	
   

  	
  December

  
	
  DR Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy Credit Rate

  	
   

  	
  $[***] per MWh

  



 


Year 2009


	
  Month

  	
   

  	
  January

  	
   

  	
  February

  	
   

  	
  March

  	
   

  	
  April

  	
   

  	
  May

  	
   

  	
  June

  
	
  DR
  Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity
  Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy
  Credit Rate

  	
   

  	
  $[***] per MWh

  



 


	
  Month

  	
   

  	
  July

  	
   

  	
  August

  	
   

  	
  September

  	
   

  	
  October

  	
   

  	
  November

  	
   

  	
  December

  
	
  DR Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy Credit Rate

  	
   

  	
  $[***] per MWh

  



 


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 2
 









 


Year 2010


	
  Month

  	
   

  	
  January

  	
   

  	
  February

  	
   

  	
  March

  	
   

  	
  April

  	
   

  	
  May

  	
   

  	
  June

  
	
  DR
  Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity
  Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy
  Credit Rate

  	
   

  	
  $[***] per MWh

  



 


	
  Month

  	
   

  	
  July

  	
   

  	
  August

  	
   

  	
  September

  	
   

  	
  October

  	
   

  	
  November

  	
   

  	
  December

  
	
  DR Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy Credit Rate

  	
   

  	
  $[***] per MWh

  



 


Year 2011


	
  Month

  	
   

  	
  January

  	
   

  	
  February

  	
   

  	
  March

  	
   

  	
  April

  	
   

  	
  May

  	
   

  	
  June

  
	
  DR
  Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity
  Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy
  Credit Rate

  	
   

  	
  $[***] per MWh

  



 


	
  Month

  	
   

  	
  July

  	
   

  	
  August

  	
   

  	
  September

  	
   

  	
  October

  	
   

  	
  November

  	
   

  	
  December

  
	
  DR Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy Credit Rate

  	
   

  	
  $[***] per MWh

  



 


Year 2012


	
  Month

  	
   

  	
  January

  	
   

  	
  February

  	
   

  	
  March

  	
   

  	
  April

  	
   

  	
  May

  	
   

  	
  June

  
	
  DR
  Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity
  Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy
  Credit Rate

  	
   

  	
  $[***] per MWh

  



 


	
  Month

  	
   

  	
  July

  	
   

  	
  August

  	
   

  	
  September

  	
   

  	
  October

  	
   

  	
  November

  	
   

  	
  December

  
	
  DR Capacity Nomination (kW)

  (the “Contract Capacity”)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Capacity Credit Rate ($/kW-month)

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  
	
  Trigger

  	
   

  	
  [***]

  
	
  Energy Credit Rate

  	
   

  	
  $[***] per MWh

  



 


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 3
 









 


(c)                                  Limitations
on the DR Resource:


(i)                                     [******************]


(ii)                                  To
the extent Seller aggregates two or more service accounts of end-use customers
in SCE’s service territory, or multiple service accounts of a single end-use
Customer in SCE’s territory or a single service account of an end-use customer
(each an “aggregated group”) to form the DR Resource, Seller cannot include in
its aggregated group(s) a customer service account served under any SCE
curtailment demand response program, with the exception of Schedule OBMC.


(iii)                               No
less than fifteen (15) days before the beginning of each Operating Month,
Seller shall deliver to SCE a list of each customer service account to be
included in Seller’s aggregator group(s) so that SCE may verify that such
customer service accounts are not served under any SCE curtailment demand
response program except for Schedule OBMC. The list should include the customer
name, service address, SCE Service Account Number, and Electric Meter Number
for each customer service account to be verified. All customers on the list must
have an active CISR-S form on file with SCE (see Section 5.6)


(iv)                              Seller
shall provide SCE with notice no less than five (5) days before the beginning
of each Operating Month, of adding or deleting a verified customer service
account from the aggregated group. 
Seller shall not be entitled to any payments for any Capacity associated
with customer service accounts that
were not submitted with at least the five days notice required under this
paragraph or for customer service accounts Buyer reasonably determines to be
served under another SCE curtailment demand response program except for
Schedule OMBC.


(v)                                 Monthly
nominations that include Community Choice Aggregation (CCA) and Direct Access
(DA) customers must be made in accordance with Section 5.3 and subsection 5.3a.


(vi)                              At its sole discretion, SCE may require that
customer service accounts in each aggregated group be reconfigured to be on a
single billing cycle.


1.5                               Dispatch Notification


Notice to
dispatch the DR Resources under this Agreement will be at least [***] prior to
the time that the DR Resources are required to respond. The Buyer may give
notice to dispatch the DR Resources [***], subject to the terms of this
Agreement.


1.6                               Exclusive Rights


During the
Delivery Period, SCE shall have the exclusive rights to:


(a)                                  the
Contract Capacity from, and the Energy produced by, the DR Resource; and


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 4
 









 


(b)                                 all benefits derived from the DR Resource,
including the exclusive right to use, market or sell the DR Resource and the
right to all revenues generated from the use, sale or marketing of the DR
Resource.


ARTICLE
2:  CONDITIONS PRECEDENT


2.1                               Conditions Precedent


Notwithstanding SCE’s
execution and delivery of this Agreement, SCE’s obligations under this
Agreement shall only become effective upon the date (“Effective Date”) that all
the following conditions are satisfied:


(a)                                  Final
Commission Approval.  Final Commission
Approval shall have been obtained of the Agreement. If the Commission approval
materially alters the terms or conditions of the Agreement or the cost recovery
mechanism requested by SCE, then either party may terminate the Agreement. In
such event, the Parties agree that they will negotiate in good faith a modified
agreement that addresses the affected terms, conditions, or cost recovery
mechanism. In the event SCE, Seller or any third party appeals a final
Commission decision related to this Agreement prior to Final Commission
Approval, SCE may, upon notice to Seller within fifteen (15) calendar days of
the appeal, terminate this Agreement (and no Termination Payment will be due or
owing by either Party), provided,
neither Party shall have an obligation to appeal, petition to modify, or
request a rehearing of, any decision by the Commission, provided,
further, SCE may waive the requirement of Final CPUC Approval at any
time.


Provided,
if all of the conditions precedent above have not been satisfied by February
29, 2008, then this Agreement will automatically terminate, and SCE shall
return any Security Deposit submitted by Seller, if any, pursuant to Article 4
herein.


ARTICLE
3:  COMPENSATION


3.1                               Disbursements


Disbursement of Delivered
Energy Payments and Delivered Capacity Payments.


(a)                                  If
no dispatch event is called during the Operating Month, Seller shall, on a
monthly basis, submit an invoice to Buyer for services rendered under this
Agreement during the previous Operating Month no later than thirty (30) days
after the end of the Operating Month.


(b)                                 If
a dispatch event was called during the Operating Month for which the invoice is
being submitted, Seller shall submit an invoice to Buyer for services rendered
under this agreement during the previous Operating Month, and also submit
recorded kW and other performance data and calculations supporting the
Delivered Capacity Payment and Delivered Energy Payment Seller claims for such
Operating Month.


(c)                                  SCE
will pay Seller all undisputed disbursements approximately thirty (30) days but
not later than sixty (60) days after receipt of the Seller’s invoice.


(d)                                 Payments
to Seller will be in the form of a check, or when such calculations result in a
net charge, SCE shall bill the Seller and the net charge shall be


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 5
 









 


due and payable in
accordance with the terms and conditions of SCE’s invoice.  If Seller fails to pay those net charges,
then Buyer may offset the net charges against any future amounts it may owe to
Seller under this Agreement.


3.2                               Baseline Calculation


[ X ] Same baseline
calculation as approved for SCE’s Capacity Bidding Program for Aggregators:


(a)                                  The
Energy Baseline (EB) is used to calculate the DR Resource’s Recorded Reduced
Energy for each dispatch event.  A valid
EB will be established when at least ten (10) similar days of interval meter
data available to SCE’s billing system for all service accounts contained in
the DR Resource are collected.


(b)                                 Only
the hourly average kWh usage (calculated over the pool of accounts, on an
aggregated basis, in each DR Resource) during the Delivery Hours will be
included in the EB.


(c)                                  The
EB will be calculated on an hourly basis using the average of the three (3)
highest energy usage days of the immediate past ten (10) similar delivery days,
excluding holidays, of all service accounts within the Resource.


(d)                                 The
EB will be determined by SCE at the end of the Operating Month following the
dispatch of the DR Resource.  The EB may
vary for each hour of the dispatched DR Resource.


The Seller must be able
to establish a valid EB for each DR Resource prior to each Operating
Month.  Only the eligible service
accounts included in the Seller’s DR Resource will be used in the establishment
of the Seller’s EB.


[*********************]


3.3                               Recorded Reduced
Capacity Calculation


(a)                                  The
Recorded Reduced Capacity equals the difference between the DR Resource’s EB
per hour and its recorded kWh per hour during each hour of DR Resource
dispatch.


(b)                                 Seller
shall use reasonable means of recording the kWh per hour during each hour of DR
Resource dispatch, which means shall be subject to the reasonable approval of
SCE.


3.4                               Delivered
Capacity Payment Calculation


The Delivered Capacity Payment shall be calculated on
an aggregated basis across all service accounts within a Resource ID for each
Operating Month.


When the DR Resource is not dispatched during an
Operating Month, the Seller’s Delivered Capacity Payment shall equal the
Contract Capacity times the applicable Capacity Credit Rate, as shown in
Section 1.4 of this Agreement.


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 6
 









 


When the DR Resource is dispatched at least once during
an Operating Month, the Delivered Capacity Payment shall be calculated for each
hour of the DR Resource dispatch as follows:




	
  

  	
   

  	
  Percent of Contract Capacity

  	
   

  	
  Percent of Capacity Credit

  
	
  a)

  	
   

  	
  [***]% or more

  	
   

  	
  [***]%

  
	
  b)

  	
   

  	
  [***]% to less than [***]%

  	
   

  	
  [***]% to less than [***]% (proportional)

  
	
  c)

  	
   

  	
  [***]% to less than [***]%

  	
   

  	
  [***]%

  
	
  d)

  	
   

  	
  [***]% to less than [***]%

  	
   

  	
  [***]%

  
	
  e)

  	
   

  	
  Less than [***] %

  	
   

  	
  [***]% and penalty applies

  






 


(a)                                  For
each hour of the dispatch event, when the Recorded Reduced Capacity is at least
[***] percent of the Contract Capacity then the Delivered Capacity Payment
shall equal [***] percent of the Contract Capacity times the applicable
Capacity Credit Rate, as shown in Section 1.4 of this Agreement, divided by the
number of dispatch hours in the Operating Month. Any Recorded Reduced Capacity
above [***] percent of the DR Capacity Nomination shall not be eligible for
compensation.


(b)                                 For
each hour of the dispatch event, when the Recorded Reduced Capacity is at least
[***] percent of the Contract Capacity, but less than [***] percent of the
Contract Capacity, the Delivered Capacity Payment calculation shall be the
actual Recorded Reduced Capacity times the applicable Capacity Credit Rate, as
shown in Section 1.4 of this Agreement, divided by the number of dispatch hours
in the Operating Month.


(c)                                  For
each hour of the dispatch event, when the Recorded Reduced Capacity is at least
[***] percent of the DR Capacity Nomination, but less than [***] percent of the
DR Capacity Nomination, the Delivered Capacity Payment for that hour shall
equal the actual Recorded Reduced Capacity times [***]% of the applicable
Capacity Credit Rate, as shown in Section 1.4 of this Agreement, divided by the
number of dispatch hours in the Operating Month.


(d)                                 For
each hour of the dispatch event, when the Recorded Reduced Capacity equals less
than [***] percent but more than [***] percent of the Contract Capacity, the
Delivered Capacity Payment shall equal zero for that hour.


(e)                                  For
each hour of the dispatch event, when the Recorded Reduced Capacity is less
than [***] percent of the Contract Capacity, the Delivered Capacity Payment is
calculated as [***]


3.5                               Delivered Energy
Payment Calculation


The Delivered Energy
Payment shall be calculated on an aggregated basis across all service accounts
within a Resource ID for each Operating Month.


When the DR Resource is
not dispatched during an Operating Month, the Seller’s Delivered Energy Payment
will be zero for that Operating Month.


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 7
 









 


When the DR Resource is
dispatched at least once during an Operating Month, the Recorded Reduced Energy
shall be used in the calculation of the Seller’s Delivered Energy Payment,
calculated as follows for each hour of each DR Resource dispatch:


 


(a)                                  Recorded
Reduced Energy equals the difference between the DR Resource’s EB and its
recorded kWh usage during each hour of DR Resource dispatch.


(b)                                 All
Recorded Reduced Energy up to 150 percent of the Contract Capacity for each
hour shall be eligible for a Delivered Energy Payment, determined by
multiplying the Recorded Reduced Energy by the product of the Energy Credit
Rate as recorded in Section 1.4 of this Agreement. Any Recorded Reduced Energy
in excess of 150 percent of the Contract Capacity for each hour shall not be
eligible for a Delivered Energy Payment.


(c)                                  If
Recorded Reduced Energy is less than [***] percent of the Contract Capacity for
any dispatch event hour, then the difference between the Recorded Reduced
Energy and the Contract Capacity for that hour is defined as Shortfall Energy.  Shortfall Energy shall be [***].


(d)                                 Seller
shall use reasonable means of recording the DR Resource’s kWh usage during each
hour of DR Resource dispatch, which means shall be subject to the reasonable
approval of SCE.


3.6                               Test Events


SCE may conduct up to two
test events (“Test Events”) per calendar year during the Term of this
Agreement.  Seller shall be entitled to
receive a Delivered Energy Payment and a Delivered Capacity Payment for each
hour of the Test Events, which shall be calculated in accordance with the
provisions of Sections 3.3 and 3.5 above. The hours for these test events shall
be dispatched in accordance with the DR Resource Type descriptions in Article
1.4 (a).


3.7                               Disputed Bills or
Charges


Any disputed invoices
and/or charges shall be resolved in accordance with the provisions of Article
11 below.


ARTICLE
4:  CREDIT REQUIREMENTS


SCE shall require Seller
to establish its creditworthiness through evaluations, deposits, or other
security in the manner described below. 
Seller may establish its creditworthiness through any one of the
following.  Upon the establishment of
such creditworthiness, SCE upon request will refund Seller’s security deposits,
if any, then being held to secure payment of liabilities to Buyer under this
Agreement.


4.1                               Credit
Evaluation


Seller with a demonstrable current credit rating of Baa2 or higher from
Moody’s or BBB or higher from Standard and Poor’s, Fitch or Duff & Phelps,
is deemed to be creditworthy unless SCE determines that a material change in
the Seller’s creditworthiness has occurred. 
SCE requires Seller to complete a credit application including financial
information reasonably necessary to establish credit.  The creditworthiness evaluation may be
conducted by an outside credit analysis agency, determined by SCE, with final
credit approval granted by SCE.  This
evaluation will be completed within 10 business days.  Credit reports will remain strictly
confidential between the credit analysis agency and SCE.  A credit application processing fee, as
approved by the Commission, may be charged to offset the cost of determining
the Seller’s creditworthiness.


4.2                               Security
Deposits


Seller may submit and maintain a cost-based security deposit in lieu of
submitting to or being qualified under a creditworthiness evaluation.  The amount of the security deposit required
to establish credit will be [***].  The
initial value of the security deposit shall be reasonably estimated by Buyer
upon consultation with Seller and will be adjusted as necessary from time to
time to meet the security requirements based on Seller’s performance under this
Agreement.


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 8
 









 


4.3                               Forms
of Security Deposits


Security deposits may be in the form of (1) cash deposits, with
interest earned at the 3-month commercial paper rate, (2) letters of credit,
defined as irrevocable and renewable issued by a major financial institution
acceptable to SCE, (3) surety bonds, defined as renewable and issued by a major
insurance company acceptable to SCE, or (4) guarantees from Seller’s parent
company or subsidiary with a credit rating of Baa2 or higher from Moody’s or
BBB or higher from Standard and Poor’s, Fitch or Duff & Phelps, unless SCE
determines that a material change in the guarantor’s creditworthiness has
occurred, or, in other cases, through the credit evaluation process described
above.  Security deposits must be posted
with SCE prior to the Delivery Period. 
Security deposits posted with SCE which are in excess of [***] will be
returned to Seller within approximately sixty (60) days after the expiration or
termination of this Agreement.


4.4                               Security
Deposit Payment Timetable


Seller is obligated to post a security deposit with SCE prior to the
Delivery Period. Seller’s failure to timely post the required security deposit
may result in the termination of this Agreement.


4.5                               Interest on Cash
Deposit


SCE will pay
interest on cash deposits, except as provided below, calculated on a daily
basis, and compounded at the end of each calendar month, from the date fully
paid to the date of refund by check or credit to Seller’s account.  The interest rate applicable in each calendar
month shall be set forth in Rule 7; except that when a refund is made within
the first fifteen days of a calendar month the interest rate applicable in the
previous month shall be applied for the elapsed portion of the month in which
the refund is made.


4.6                               Ongoing Maintenance
of Credit


To assure
continued validity of established unsecured credit, Seller shall promptly
notify SCE of any material change in its credit rating or financial
condition.  Seller shall also furnish
evidence of an acceptable credit rating or financial condition, as set forth
above, to SCE upon request.  In the event
SCE determines that Seller’s or Seller’s guarantor’s creditworthiness has
materially changed, as set forth above, and Seller does not rectify or provide
a security deposit commensurate with the change in creditworthiness, then SCE
may terminate this Agreement.


4.7                               Additional Documents


Prior to the
Delivery Period, Seller shall execute and deliver all documents and instruments
(including, without limitation, security agreements and SCE financing
statements) reasonably required from time to time to implement the provisions
set forth above and to perfect any security interest granted to SCE.


ARTICLE
5:  SPECIAL TERMS AND CONDITIONS


5.1                               Resource
Adequacy Benefits


(a)                                  Seller
grants, pledges, assigns, and otherwise commits to SCE the full Capacity of
each DR Resource in order for SCE to meet its Resource Adequacy Requirement (“RAR”)
and, if applicable, local RAR under any Resource Adequacy Rulings.  Seller represents, warrants, and covenants to
SCE that Seller (a) has not used, granted, pledged, assigned, or otherwise
committed; and (b) will not use, grant, pledge, assign, or otherwise commit any
Capacity of any DR Resource to meet the RAR or local RAR of, or confer Resource
Adequacy Benefits upon, any entity other than SCE during the Term.  The Parties shall take all actions (including
amending this Agreement and complying with all current and future tariff
provisions and decisions of the Commission and/or any other governmental
authority that address Resource Adequacy performance obligations and penalties)
and execute all documents or instruments necessary to effect the use of the
Resource 


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 9















 


Adequacy Benefits of each DR Resource for SCE’s sole benefit throughout
the Term.


(b)                                 If the DR Resources
will not be available to provide the Contract Capacity in the full amount for
any RAR or Local RAR showing for the Delivery Period, Seller shall, no later
than the earlier of (a) twenty (20) Business Days after the loss of any
Contract Capacity, or (b) fifteen (15) Business Days before the relevant
deadline for such RAR or local RAR showing, notify Buyer of the Capacity of
each DR Resource which can be included in such showing.


5.2                               [***]


Seller grants, pledges,
assigns, and otherwise commits to SCE [***], if any, of each [***] in order for
SCE to meet its [***].  Seller
represents, warrants, and covenants to SCE that Seller (a) has not used,
granted, pledged, assigned, or otherwise committed, and (b) will not use,
grant, pledge, assign, or otherwise commit any [***], any entity other than SCE
during the Term.  The Parties shall take
all actions (including amending this Agreement and complying with all current
and future provisions and decisions of the Commission and/or any other
governmental authority that address [***] and penalties) and execute all
documents or instruments necessary to effect the use of the [***] for SCE’s
sole benefit throughout the Term.


5.3                               Ensure
Necessary Arrangements with
Scheduling Coordinators for CCA and DA Customers


Seller shall be solely responsible for
having the appropriate contractual or other arrangements with the Scheduling
Coordinator (SC) for the electric service provider of each CCA and DA customer
with service accounts that are included in a Seller’s group, and for complying
with the Scheduling Coordinator to Scheduling Coordinator (SC-to-SC) Protocol
noted below, to ensure that SCE’s SC receives a delivery in the congestion zone
in which the Seller’s DA or CCA customer service account(s) is located.


[********]


[********]


(a)                                  [********]


(b)                                 [********]


(c)                                  [********]


(d)                                 [********]


[********]


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment
under Rule 24b-2 of the Exchange Act.



 10
 









 


5.4                               Secure Customer
Participation in Measurement and Evaluation Activities


Seller agrees, and shall
cause each customer service account of Seller’s aggregated group(s) to agree,
to (i) allow SCE, the Commission, and/or the California Energy Commission (“CEC”),
and the authorized representatives of any of them, reasonable access to Seller’s
and customer’s facilities to conduct measurement and evaluation activities
related to this Agreement; and (ii) participate in and complete all evaluation
surveys received from SCE, the Commission and/or the CEC related to this
Agreement.  Seller’s failure to secure
these agreements may result in the termination of this Agreement.


5.5                               SCE Not Liable for
Aggregator Service


SCE has no obligations to a customer with one or more
service accounts participating in a Seller’s aggregated group(s).  Such customer must look to Seller to carry
out the responsibilities associated with Seller’s service.


5.6                               Customer-Specific Usage
or Meter Data


SCE will provide
customer-specific information, usage, and/or meter data to Seller, provided SCE
has received written authorization from the customer to release such
information to Seller in the form of an executed “Authorization to Receive
Customer Information or Act on a Customer’s Behalf” form (CISR-S), available on
www.sce.com.


5.7                               Customer Inquiries


Customer inquiries
concerning Seller’s services shall be directed to Seller.


ARTICLE
6:  CONTACT INFORMATION


	
   

  	
   

  	
  SELLER

  	
   

  	
  BUYER

  	
   

  
	
   

  	
   

  	
  Phone/Fax

  	
   

  	
  Phone/Fax

  	
   

  
	
  Dispatch
  Notification:

  	
   

  	
  888-363-7662 / 857-221-9465

  	
   

  	
  [***] / [***]

  	
   

  
	
  Day Ahead
  Trading:

  	
   

  	
  888-363-7662 / 857-221-9465

  	
   

  	
  [***] / [***]

  	
   

  
	
  Real Time
  Trading:

  	
   

  	
  888-363-7662 / 857-221-9465

  	
   

  	
  [***] / [***]

  	
   

  
	
  Day Ahead
  Scheduling:

  	
   

  	
  888-363-7662 / 857-221-9465

  	
   

  	
  [***] / [***]

  	
   

  
	
  Real Time
  Scheduling:

  	
   

  	
  888-363-7662 / 857-221-9465

  	
   

  	
  [***] / [***]

  	
   

  
	
  Settlements:

  	
   

  	
  617-224-9927 / 857-221-9427

  	
   

  	
  [***] / [***]

  	
   

  
	
  Customer
  Inquiries:

  	
   

  	
  888.363.7662

  	
   

  	
  [***]

  	
   

  



Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 11
 









 


ARTICLE
7:  REPRESENTATIONS AND WARRANTIES


7.1                               Representations and
Warranties of Both Parties


As of the
Execution Date and the Effective Date, each Party represents and warrants to
the other Party that:


(a)                                  It
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its formation;


(b)                                 The
execution, delivery and performance of this Agreement are within its power,
have been duly authorized by all necessary action (other than Final Commission
Approval) and do not violate any of the terms and conditions in its governing
documents, any contracts to which it is a party or any laws applicable to it;


(c)                                  This
Agreement constitutes its legally valid and binding obligation enforceable
against it in accordance with its terms;


(d)                                 It
is not bankrupt and there are not proceedings pending or being contemplated by
it or, to its knowledge, threatened against it which would result in it being
or become bankrupt;


(e)                                  There
is not pending or, to its knowledge, threatened against it or in Seller’s case,
guarantor, if applicable, any legal proceedings that could materially adversely
affect its ability to perform its obligations under this Agreement;


(f)                                    It
is acting for its own account, has made its own independent decision to enter
into this Agreement and as to whether this Agreement is appropriate or proper for
it based upon its own judgment, is not relying upon the advice or
recommendations of the other Party in so doing, and is capable of assessing the
merits of and understanding, and understand and accepts, the terms, conditions,
and risks of this Agreement; and


(g)                                 It
has entered into this Agreement in connection with the conduct of its business
and it has the capacity or ability to make or take delivery of all DR Resources
under this Agreement.


ARTICLE 8:  NOTICES


Unless otherwise provided
in this Agreement, any notice or request (“Notice”) shall be in writing to the
address provided below and delivered by hand delivery, United States mail,
overnight courier service or facsimile. 
Notice by facsimile or hand delivery shall be effective at the close of
business on the day received, if the entire document was received during
business hours on a Business Day, and otherwise shall be effective at the close
of business on the next Business Day after it was sent or personally delivered.  Notice by overnight courier service shall be
effective on the next Business Day after it was sent.  Notice by United States mail shall be
effective on the third Business Day after it was sent.  A Party may change its address by providing
Notice of same to the other Party in accordance with this Article 8.




	
  If to SCE:

  	
   

  	
  Southern California Edison Company

  
	
   

  	
   

  	
  [***]

  
	
   

  	
   

  	
  [***]

  
	
   

  	
   

  	
  [***]

  
	
   

  	
   

  	
  [***]

  
	
   

  	
   

  	
   

  
	
  If to Seller:

  	
   

  	
  EnerNOC, Inc.

  
	
   

  	
   

  	
  75 Federal Street, Suite 300

  
	
   

  	
   

  	
  Boston, MA 02110

  
	
   

  	
   

  	
  Attn: David Brewster

  
	
   

  	
   

  	
  Facsimile No.: (857) 221-9402

  






Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act.



 12
 









 


ARTICLE
9:  SELLER’S FAILURE TO DELIVER CONTRACT CAPACITY


Seller shall indemnify
Buyer for any monetary penalties or fines assessed against Buyer by the
Commission or the California Independent System Operator (“CAISO”) resulting
from and to the extent caused by:


(a)                                  Seller’s
failure to provide Buyer with any portion of the Contract Capacity pursuant to
the terms and conditions of this Agreement, including, without limitation,
meeting the time requirements for dispatching the DR Resource;


(b)                                 Seller’s
failure to provide notice of the non-availability of any portion of the
Contract Capacity as required under Section 5.1 hereof; or


(c)                                  any
other failure by Seller to perform its obligations under this Agreement.  With respect to the foregoing, the Parties
shall use commercially reasonable efforts to minimize such penalties and fines,
provided that in no event shall Buyer be required to utilize or change its
utilization of its owned or controlled assets or market positions to minimize
these penalties and fines.  If Seller
fails to pay such penalties or fines, or fails to reimburse Buyer for such
penalties and fines, then Buyer may offset the cost of those penalties and
fines against any future amounts it may owe to Seller under this Agreement.


ARTICLE
10:  TERMINATION


A Party may terminate
this Agreement in the event of a material breach by the other Party of any of
the material terms or conditions of this Agreement, provided
such breach is not remedied within sixty (60) days of receipt of the
non-breaching Party’s Notice to the breaching Party of such breach or otherwise
cured pursuant to the dispute resolution provisions set forth below.


ARTICLE
11:  DISPUTE RESOLUTION


11.1                        Dispute Resolution


Any and all
disputes, claims or controversies arising out of, relating to, concerning or
pertaining to the terms of this Agreement, or to either Party’s performance or
failure of performance under this Agreement (“Dispute”), which Dispute the
Parties have been unable to resolve by informal methods after undertaking a
good faith effort to do so, shall first be submitted to an informal dispute
resolution under the procedure described in Section 11.2 below; if the matter
is not resolved through such procedures, then to a nonbinding mediation under
the procedure described in Section 11.3 below; and then, if the Dispute is not
resolved through the informal resolution and nonbinding mediation procedures,
it shall be referred for final and binding arbitration under the procedures
described in Section 11.4.


11.2                        Informal Resolution


Any unresolved
Disputes shall initially be referred to a Vice President of SCE, or designee,
and an officer of Seller, or designee, for resolution.


11.3                        Mediation


If the Dispute
is not resolved under the procedure provided for in Section 11.2, above, within
one (1) month of its submission to SCE’s Vice President and Seller’s officer,
then the Dispute shall be submitted to JAMS, its successor, or any other
mutually agreeable neutral (the “Mediator”) for non-binding mediation.  Either Party may initiate the mediation by
providing to the other Party a written request for mediation that sets forth
the subject of the Dispute and the relief requested.  The Parties will cooperate


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 13
 









 


with one
another in promptly selecting the Mediator from the JAMS’ panel of neutrals, or
in selecting a mutually acceptable non-JAMS Mediator, and in scheduling the
time and place of the mediation.  Unless
otherwise agreed to by the Parties, however, the mediation shall not be
scheduled for a date that is greater than one hundred twenty (120) days from
the date of the initial written demand for mediation.  Moreover, if the Parties cannot agree on the
place of mediation, it shall alternate between the Parties’ headquarters,
starting at the headquarters of the Party that did not request mediation.  The Parties covenant that they will
participate in the mediation in good faith, and that they will share equally in
its costs (other than each Party’s individual attorneys’ fees and costs related
to the Party’s participation in the mediation, which fees and costs shall be
borne by such Party).  All offers,
promises, conduct and statements, whether oral or written, made in connection
with or during the mediation by either of the Parties, their Representatives,
and by the Mediator and any of the Mediator’s agents, representatives and
employees, are confidential, privileged and inadmissible for any purpose,
including impeachment, in any arbitration or other proceeding between the
Parties, provided, evidence that
is otherwise admissible or discoverable shall not be rendered inadmissible or
non-discoverable as a result of its use in the mediation.


11.4                        Arbitration


Either Party may initiate binding arbitration with respect to the Dispute
first submitted to mediation by making a written demand for binding arbitration
before a single, neutral arbitrator (the “Arbitrator”) at any time following
the unsuccessful conclusion of the mediation provided for in Section 11.3. 
The Parties will cooperate with one another in promptly selecting the
Arbitrator and in scheduling the arbitration to commence no later than one
hundred eighty (180) days from the date of the initial written demand for
binding arbitration.  If, notwithstanding
their good faith efforts, the Parties are unable to agree upon a mutually
acceptable Arbitrator, the Arbitrator shall be appointed as provided for in
California Code of Civil Procedure Section 1281.6, provided, unless the Parties otherwise agree in writing, the
person who acted as Mediator shall be precluded from serving as
Arbitrator.  Upon a Party’s written
demand for binding arbitration, such Dispute, including the determination of
the scope or applicability of this agreement to arbitrate, shall be determined
by binding arbitration before the Arbitrator, in accordance with the laws of
the State of California, without regards to principles of conflicts of
laws.  Except as provided for herein, the
arbitration shall be conducted by the Arbitrator in accordance with the rules
and procedures for arbitration of complex business disputes for the
organization with which the Arbitrator is associated; absent the existence of
such rules and procedures, the arbitration shall be conducted in accordance
with the California Arbitration Act, California Code of Civil Procedure Section
1280 et seq.  However, notwithstanding the rules and
procedures that would otherwise apply to the arbitration, and unless the
Parties agree to a different arrangement, the place of the arbitration shall be
in Los Angeles County, California, each side in the arbitration shall be
entitled to take up to three depositions, and all direct testimony in the
arbitration shall be submitted in the form of affidavits or declarations under
penalty of perjury.  Each Party shall
cooperate in making available for cross-examination at the arbitration hearing
its witnesses whose direct testimony has been so submitted.  Judgment on the award may be entered in any
court having jurisdiction.  The
Arbitrator shall, in any award, allocate all of the costs of the binding
arbitration (other than each Party’s individual attorneys’ fees and costs
related to the Party’s participation in the arbitration, which fees and costs
shall be borne by such Party), including the fees of the Arbitrator, against
the Party who did not prevail.  Until
such award is made, however, the Parties shall share equally in paying the
costs of the arbitration.


11.5                        Waiver of July Trial


The Parties
waive any right to trial by jury in any litigation arising under this
Agreement.


ARTICLE
12:  INDEMNIFICATION


12.1                        Seller Acts and Omissions


Seller shall,
at its own cost, defend, indemnify and hold harmless SCE and its officers,
directors, employees, agents, representatives, assigns, and successors in
interest from and against any and all liability, damages, losses, claims,
demands, actions, causes of action, costs, including reasonable attorneys’ fees
(which shall include allocable costs of in-house counsel) and expense of any of
them,


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 14
 









 


resulting from
the death or bodily injury to any person or damage to any property, arising out
of any negligent act or omission of Seller, its employees, officers and agents,
or any of them. Seller’s indemnification obligation hereunder shall be
contingent on Buyer giving Seller written notice of any such claim. Buyer will
provide full cooperation in any defence or settlement of such claim (at Seller’s
cost).


12.2                        Breach of Representations,
Warranties, and Covenants


Each Party
shall, at its own cost, defend, indemnify and hold harmless the other Party and
its officers, directors, employees, agents, representatives, assigns, and
successors in interest from any and all liability, damage, losses, claims,
demands, actions, causes of action, costs and expense arising out of or in
connection with any breach by the first Party of its representations,
warranties, and covenants in this Agreement.


12.3                        Survival


All indemnity
rights shall survive the termination of this Agreement for a period of four (4)
years.


ARTICLE
13:  LIMITATION OF REMEDIES, LIABILITY,
AND DAMAGES


There is no warranty of
merchantability or fitness for a particular purpose with respect to any
product, and any and all implied warranties are disclaimed.  The Parties confirm that the express remedies
and measure of damages provided in this Agreement satisfy the essential
purposes hereof.  Unless expressly
provided otherwise in this Agreement, for breach of any provision for which an
express remedy or measure of damages is provided, such express remedy or
measure of damages shall be the sole and exclusive provision and all other
remedies or damages at law or in equity (other than injunctive relief as
provided in this Agreement) are waived. 
If no remedy or measure of damages is expressly provided herein, the
obligor’s liability shall be limited to direct actual damages only, such direct
actual damages to be the sole and exclusive remedy and all other remedies or
damages at law or in equity (other than in injunctive relief as provided in
this agreement) are waived. 
Notwithstanding anything to the contrary in this Agreement, neither
Party shall be liable to the other Party for any indirect, special, exemplary,
incidental, punitive, lost profits, business interruption or consequential
damages whatsoever under any theory, including by statute, contract, tort
(including negligence) or strict liability, under any indemnity provision set
forth in this Agreement or otherwise, resulting from a Party’s performance or
nonperformance of its obligations under or termination of this Agreement.  The Parties intend that the limitations herein
imposed on remedies and the measure of damages be without regard to the cause
or causes related thereto, including the negligence of any Party, whether such
negligence be sole, joint or concurrent, or active or passive. To the extent
any damages required to be paid hereunder are liquidated, the Parties
acknowledge that the damages are difficult or impossible to determine or
otherwise obtaining an adequate remedy is inconvenient and the damages
calculated hereunder constitute a reasonable approximation of the harm or loss.
Nothing in this section prevents or is intended to prevent a party from seeking
specific performance unless performance is otherwise excused herein.


ARTICLE
14:  CONFIDENTIALITY


The terms and conditions of this Agreement shall be
Confidential Information of SCE, and shall not be disclosed to a third party
without the prior written consent of SCE.


Notwithstanding the foregoing, the Parties agree that
SCE may disclose the transfer of the Contract Capacity under this Agreement to
any governmental body, the Commission, or the CAISO in order to support its
RAR, local RAR and/or RPS showings; provided that
Buyer as the disclosing Party shall, to the extent reasonable, use reasonable
efforts to limit the ability of any such applicable governmental body,
Commission or CAISO to further disclose such information.


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 15
 









 


ARTICLE
15:  FORCE MAJEURE


A Party shall
not be in default in the performance of its obligations under this Agreement
when and to the extent that the failure or delay of its performance is due to
an event of Force Majeure.


15.1            Definition


Force Majeure means any event or circumstance to
the extent beyond the control of, and not the result of the negligence of, or
caused by, the Party seeking to have its performance obligation excused
thereby, which by the exercise of due diligence such Party could not reasonably
have been expected to avoid and which by exercise of due diligence it has been
unable to overcome.  Force Majeure shall
not include (i) a failure of performance of any other entity, except to
the extent that such failure was caused by an event that would otherwise
qualify as a Force Majeure event, or (ii) breakage or malfunction of equipment
(except to the extent that such failure was caused by an event that would
otherwise qualify as a Force Majeure).


15.2            Limitations


If, because of a Force Majeure, either Party
is unable to perform its obligations under this Agreement, such Party shall be
excused from whatever performance is affected by the Force Majeure only to the
extent so affected, provided:


(a)                                  the
claiming Party, no more than one (1) Business Day after the initial occurrence
of the claimed Force Majeure, gives the other Party notice describing the
particulars of the occurrence;


(b)                                 the
claiming Party, within five (5) business days of providing notice of occurrence
of the Force Majeure, provides evidence reasonably sufficient to establish that
the occurrence constitutes a Force Majeure as defined in this Agreement;


(c)                                  the
suspension of performance is of no greater scope and of no longer duration than
is required by the Force Majeure; and


(d)                                 as
soon as Claiming Party is able to resume performance of its obligations under
this Agreement, it shall do so and shall promptly give the other Party Notice
of this resumption.


ARTICLE
16: MISCELLANEOUS


16.1                        General


This Agreement shall be considered for all purposes as prepared through
the joint efforts of the Parties and shall not be construed against one Party
or the other as a result of the preparation, substitution, submission or other
event of negotiation, drafting or execution hereof.  The term “including” when used in this
Agreement shall be by way of example only and shall not be considered in any
way to be in limitation.    The headings
used herein are for convenience and reference purposes only.  This Agreement shall be binding on each Party’s
successors and permitted assigns.  Each
Party further agrees that it will not assert, or defend itself, on the basis
that any applicable tariff is inconsistent with this Agreement.


16.2                        Governing
Law


This Agreement shall be construed under the laws of the State of
California without giving effect to choice of law provisions that might apply
the laws of a different jurisdiction.


16.3                        Amendment


This Agreement can only be amended by a writing signed by both Parties.


16.4                        Assignment


Neither Party shall assign this Agreement or its rights hereunder
without the prior written consent of the other Party, which consent shall not
be unreasonably withheld.


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 16
 









 


16.5                        Successors
and Assigns


This Agreement shall be binding upon, and inure to the benefit of, the
Parties and their respective successors and assigns.  Rights and obligations under this Agreement
shall not be assignable by either Party without the prior written consent of
the other Party.  This Agreement is not
intended to confer any rights or remedies upon any other persons other than the
Parties.


16.6                        Waiver


None of the provisions of this Agreement shall be considered waived by
either Party unless the Party against whom such waiver is claimed gives the
waiver in writing.  The failure of either
Party to insist in any one instance upon strict performance of any the
provisions of this Agreement or to take advantage of any of its rights
hereunder shall not be construed as a waiver of any such provisions or the
relinquishments of such rights for the future, but the same shall continue and
remain in full force and effect.  Waiver
by either Party of any default of the other Party shall not be deemed a waiver
of any other default.


16.7                        Obligations
Surviving Termination


Except as may be provided or limited by this Agreement, the obligations
which by their nature are intended to survive termination of this Agreement,
including representations, warranties, covenants and rights and obligations
with respect to indemnification, payment, and settlement, confidentiality,
shall so survive.


16.8                        No Agency


Except as
otherwise provided explicitly herein, in performing their respective
obligations under this Agreement, neither Party is acting, or is authorized to
act, as the other Party’s agent.


16.9                        No Third Party Beneficiaries


This Agreement
shall not impart any rights enforceable by any third party (other than a
permitted successor or assignee bound by this Agreement).


16.10                 Entire
Agreement


This
Agreement, when fully executed, constitutes the entire agreement by and between
the Parties as to the subject matter hereof, and supersedes all prior
understandings, agreements or representations by or between the Parties,
written or oral to the extent they have related in any way to the subject
matter hereof.  Each Party represents
that, in entering into this Agreement, it has not relied upon any promise,
inducement, representation, warranty, agreement or other statement not set
forth in this Agreement.


16.11                 Severability


If any term,
section, provision or other part of this Agreement, or the application of any
term, section, provision or other part of this Agreement, is held to be
invalid, illegal or void by a court or regulatory agency of proper
jurisdiction, all other terms, sections, provisions or other parts of this
Agreement shall not be affected thereby but shall remain in force and effect
unless a court or regulatory agency holds that the provisions are not separable
from all other provisions of this Agreement.


16.12                 Multiple Originals


This Agreement may be
executed in multiple counterparts, each of which shall be deemed an
original.  Any signature page of this
Agreement may be detached from any counterpart of this Agreement without
impairing the legal effect of any of the signatures thereon, and may be
attached to another counterpart of this Agreement identical in form hereto by
having attached to it one or more signature pages.


16.13                 Audit Rights


SCE and the Commission shall
each have the right, at its sole expense and during normal working hours, to
audit the documents, records or data of Seller to the extent reasonably
necessary to verify the accuracy of any statement, claim, charge or calculation
made pursuant to this Agreement.  Seller
shall promptly comply with any reasonable request by SCE under this Section and
provide copies of


Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



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documents, records or data
to SCE.  The rights and obligations under
this Section shall survive the termination of this Agreement for a period of
two (2) years.


16.14                 Performance
under this Agreement


Each Party and its representatives shall maintain
records and supporting documentation relating to this Agreement, and the
performance of the Parties hereunder in accordance with, and for the applicable
time periods required by, all applicable laws, but in no event less than seven
(7) years after final payment is made under this Agreement.


IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
duly authorized representatives as of the Execution Date.


	
  ENERNOC, INC.

  	
   

  	
  SOUTHERN CALIFORNIA EDISON COMPANY

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David B. Brewster

  	
   

  	
  By:

  	
  /s/ Lynda L. Ziegler

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David B. Brewster

  	
   

  	
  Name:

  	
  Lynda L. Ziegler

  
	
   

  	
  print

  	
   

  	
   

  	
  print

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
  Senior V.P., Customer Service

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  9/27/2007

  	
   

  	
  Date:

  	
  September 27, 2007

  



Portions of this
Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act.



 18