As filed with the Securities and Exchange Commission on
March 31, 2010
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
AMERESCO, INC.
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction
of
incorporation or organization)
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4931
(Primary Standard
Industrial
Classification Code Number)
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04-3512838
(I.R.S. Employer
Identification No.)
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111 Speen Street, Suite 410
Framingham, Massachusetts 01701
(508) 661-2200
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
George P. Sakellaris
President and Chief Executive Officer
111 Speen Street, Suite 410
Framingham, Massachusetts 01701
(508) 661-2200
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
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Mark G. Borden, Esq.
Patrick J. Rondeau, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
(617) 526-6000
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Thomas R. Burton, III, Esq.
Sahir Surmeli, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after this
Registration Statement is declared effective.
If any of the securities being registered on this form are
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, as amended (the
Securities Act) please check the following
box.
o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
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Large
accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
þ
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Smaller reporting
company
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(Do not check if a smaller
reporting company)
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Amount of
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Aggregate
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Registration
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Title of Each Class of
Securities to be Registered
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Offering Price(1)
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Fee(2)
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Class A Common Stock, par value $0.0001 per share
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$
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125,000,000
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$
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8,913
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(1)
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Estimated solely for the purpose of
computing the registration fee in accordance with
Rule 457(o) under the Securities Act of 1933, as amended.
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(2)
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Calculated pursuant to
Rule 457(o) based on an estimate of the proposed maximum
aggregate offering price.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant
to Section 8(a), may determine.
The information in
this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state
where the offer or sale is not permitted.
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Subject to Completion
Preliminary Prospectus dated March
31, 2010
P R O
S P E C T U S
Shares
Class A Common
Stock
This is Amerescos initial public offering. We are
selling shares
of our Class A common stock and the selling stockholders
are
selling shares
of our Class A common stock. We will not receive any
proceeds from the sale of shares to be offered by the selling
stockholders.
Following this offering, we will have two classes of authorized
common stock: Class A common stock and Class B common
stock. The rights of the holders of our Class A common
stock and our Class B common stock will be identical,
except with respect to voting and conversion. Each share of our
Class A common stock will be entitled to one vote per share
and will not convert into any other shares of our capital stock.
Each share of our Class B common stock will be entitled
to votes per share and will
convert into one share of our Class A common stock upon the
occurrence of specified events.
We expect the public offering price to be between
$ and
$ per share. Currently, no public
market exists for the shares. After pricing of the offering, we
expect that the shares will trade on either the New York Stock
Exchange or the NASDAQ Global Market under the symbol
.
Investing in the Class A common stock involves risks
that are described in the Risk Factors section
beginning on page 11 of this prospectus.
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Per Share
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Total
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Public offering price
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$
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$
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Underwriting discount
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$
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$
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Proceeds, before expenses, to us
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$
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$
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Proceeds, before expenses, to the selling stockholders
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$
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$
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The underwriters may also purchase up to an
additional shares
from us, and up to an
additional shares
from the selling stockholders, at the public offering price,
less the underwriting discount, within 30 days from the
date of this prospectus to cover overallotments, if any.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The shares will be ready for delivery on or
about ,
2010.
Sole Book-Running Manager
BofA Merrill Lynch
Lead Manager
RBC Capital Markets
Oppenheimer &
Co.
The date of this prospectus
is ,
2010.
TABLE OF
CONTENTS
You should rely only on the information contained in this
prospectus and any free writing prospectus we may specifically
authorize to be delivered or made available to you. We have not,
and the selling stockholders and the underwriters have not,
authorized anyone to provide you with additional or different
information. The information contained in this prospectus or any
free writing prospectus is accurate only as of its date,
regardless of its time of delivery or of any sale of shares of
our common stock. Our business, financial condition, results of
operations and prospects may have changed since that date.
This prospectus is an offer to sell only the shares offered
hereby but only under circumstances and in jurisdictions where
it is lawful to do so.
PROSPECTUS
SUMMARY
This summary highlights information contained elsewhere in
this prospectus. You should read this summary together with the
more detailed information appearing in this prospectus,
including our consolidated financial statements and related
notes, and the risk factors beginning on page 11, before
deciding whether to purchase shares of our Class A common
stock. Unless the context otherwise requires, we use the terms
Ameresco, our company, we,
us and our in this prospectus to refer
to Ameresco, Inc. and its subsidiaries.
Overview
Ameresco is a leading provider of energy efficiency solutions
for facilities throughout North America. Our solutions enable
customers to reduce their energy consumption, lower their
operating and maintenance costs and realize environmental
benefits. Our comprehensive set of services addresses almost all
aspects of purchasing and using energy within a facility. Our
services include upgrades to a facilitys energy
infrastructure and the construction and operation of small-scale
renewable energy plants. As one of the few large, independent
energy efficiency service providers, we are able to objectively
select and provide the products and technologies best suited for
a customers needs. Having grown from four offices in three
states in 2001 to 54 offices in 29 states and four
Canadian provinces in 2009, we now combine a North American
footprint with strong local operations. Since our inception in
2000, we have served more than 2,000 customers, which include
primarily governmental, educational, utility, healthcare and
other institutional, commercial and industrial entities.
Our principal service is the development, design, engineering
and installation of projects that reduce the energy and
operations and maintenance, or O&M, costs of our
customers facilities. These projects typically include a
variety of measures customized for the facility and designed to
improve the efficiency of major building systems, such as
heating, ventilation, air conditioning and lighting systems. We
typically enter into energy savings performance contracts, or
ESPCs, under which we commit to our customers that our energy
efficiency projects will satisfy
agreed-upon
performance standards upon installation or achieve specified
increases in energy efficiency. In most cases, the forecasted
lifetime energy and operating cost savings of the energy
efficiency measures we install will defray all or almost all of
the cost of such measures. In many cases, we assist customers in
obtaining third-party financing for the cost of constructing the
facility improvements, resulting in little or no upfront capital
expenditure by the customer. After a project is complete, we may
operate, maintain and repair the customers energy systems
under a multi-year O&M contract, which provides us with
recurring revenue and visibility into the customers
evolving needs.
We also serve certain customers by developing and building
small-scale renewable energy plants located at or close to a
customers site. Depending on the customers
preference, we will either retain ownership of the completed
plant or build it for the customer. Most of our plants have to
date been constructed adjacent to landfills and use landfill
gas, or LFG, to generate energy. Our largest renewable energy
plant is currently under construction and will use biomass as
the source of energy. In the case of the plants that we own, the
electricity, thermal energy or processed LFG generated by the
plant is sold under a long-term supply contract with the
customer, which is typically a utility, municipality, industrial
facility or other large purchaser of energy. We also sell and
install photovoltaic, or PV, panels and integrated PV systems
that convert solar energy to power. By enabling our customers to
procure renewable sources of energy, we help them reduce or
stabilize their energy costs, as well as realize environmental
benefits.
Our revenue has increased from $20.9 million in 2001, our
first full year of operations, to $428.5 million in 2009.
We achieved profitability in 2002 and have been profitable every
year since then.
Industry
Overview
The market for energy efficiency services has grown
significantly, driven largely by rising and volatile energy
prices, advances in energy efficiency and renewable energy
technologies, governmental support for energy efficiency and
renewable energy programs and growing customer awareness of
energy and
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environmental issues. End-users, utilities and governmental
agencies are increasingly viewing energy efficiency measures as
a cost-effective solution for saving energy, renewing aging
facility infrastructure and reducing harmful emissions.
According to a 2008 Frost & Sullivan report, activity
by energy services companies in the North American market for
energy management services, including energy efficiency, demand
response and other services, grew at a compound annual growth
rate, or CAGR, of 22% from 2004 through 2008, with the estimated
size of the market reaching more than $5 billion in 2008.
Large purchasers of energy and utilities are also increasingly
seeking to use renewable sources of energy, such as LFG, wind,
biomass, geothermal and solar, to reduce or stabilize their
energy costs, meet regulatory mandates for use of renewable
energy, diversify their fuel sources and realize environmental
benefits, such as the reduction of greenhouse gas emissions.
We believe the following trends and developments are driving the
growth of our industry:
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Rising and Volatile Energy Prices.
Over the past
decade, energy-linked commodity prices, including oil, gas, coal
and electricity, have all increased and exhibited significant
volatility. From 1999 to 2009, average U.S. retail electricity
prices have increased by more than 50%.
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Potential of Energy Efficiency Measures to Significantly
Reduce Energy Consumption
. The implementation of energy
efficiency measures can significantly reduce the rate at which
energy consumption is expected to increase. According to a July
2009 report by McKinsey & Company, economically viable
and commercially available energy efficiency measures, if fully
implemented, have the potential to save more than one
trillion kWh of electricity, or 23% of overall U.S. demand,
by 2020.
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Aging and Inefficient Facility Infrastructure.
Many
organizations continue to operate with an energy infrastructure
that is significantly less efficient and cost-effective than now
available through more advanced technologies applied to
lighting, heating, cooling and other building systems. As these
organizations explore alternatives for renewing their aging
facilities, they often identify multiple areas within their
facilities that could benefit from the implementation of energy
efficiency measures, including the possible use of renewable
sources of energy.
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Increased Focus on Cost Reduction.
The current
economic environment has led many organizations to search for
opportunities to reduce their operating costs. There has been a
growing awareness that reduced energy consumption presents an
opportunity for significant long-term savings in operating costs
and that the installation of energy efficiency measures can be a
cost-effective way to achieve such reductions.
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Movement Toward Industry Consolidation.
As energy
efficiency solutions continue to increase in technological
complexity and customers look for service providers that can
offer broad geographic and product coverage, we believe smaller
niche energy efficiency companies will continue to look for
opportunities to combine with larger companies that can better
serve their customers needs. Increased market presence and
size of energy efficiency companies should, in turn, create
greater customer awareness of the benefits of energy efficiency
measures.
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Increasing Legislative Support and Initiatives.
In
the United States and Canada, federal, state, provincial, and
local governments have enacted and are considering legislation
and regulations aimed at increasing energy efficiency, reducing
greenhouse gas emissions and encouraging the expansion of
renewable energy generation.
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Increased Use of Third-Party Financing.
Many
organizations desire to use their existing sources of capital
for core investments or do not have the internal capacity to
finance improvements to their energy infrastructure. These
organizations often require innovative structures to facilitate
the financing of energy efficiency and renewable energy
projects. Customers seeking to upgrade or renew their energy
systems are increasingly seeking to enter into ESPCs or other
creative arrangements that facilitate third-party financing for
their projects.
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Our
Competitive Strengths
We believe our competitive strengths include the following:
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One-Stop, Comprehensive Service Provider.
We offer
our customers expertise in addressing almost all aspects of
purchasing and using energy within a facility. Our experienced
project development and engineering staff provide us with the
capability and flexibility to determine the combination of
energy efficiency measures that is best suited to achieve the
customers energy efficiency and environmental goals.
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Independence.
We are an independent company with no
affiliation to any equipment manufacturer, utility or fuel
company. Unlike affiliated service companies, we have the
freedom and flexibility to be objective in selecting particular
products and technologies available from different manufacturers
in order to optimize our solutions for customers
particular needs.
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Strong Customer Relationships.
We have served over
2,000 customers since our inception, including over 1,000
customers in 2009. Our design, engineering and support
activities, which typically span multiple years, foster a close
relationship with our customers, which positions us to identify
their future needs and provide additional services to them.
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Creative Solutions.
Our engineering staff has
expertise in a broad range of technologies and energy savings
strategies encompassing different types of electrical, heating,
cooling, lighting, water, renewable energy and other facility
infrastructure systems. We apply this expertise to design and
engineer innovative solutions customized to meet the specific
needs of each customer.
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Strong National and Local Presence.
We have a
nationwide presence in both the United States and Canada and
serve certain of our customers in European locations. We
maintain a centralized staff of engineering, financial and legal
personnel at our headquarters in Massachusetts, who provide
support to our seven regional offices and 46 other field offices
located throughout the United States and Canada. We believe that
our organizational structure enables us to be fast, flexible and
cost-effective in responding to our customers needs.
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Experienced Management and Operations Team.
Our
executive officers have an aggregate of over 150 years of
experience in the energy efficiency field. As of
December 31, 2009, we employed over 200 engineers, whose
experience with respect to fuels, rates, technologies and
geography-specific regulation and economic benefits enables us
to propose and design energy efficiency solutions that take into
account the economic, technological, environmental and
regulatory considerations that we believe underlie the cost
efficiencies and operational success of a project.
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Federal and State Qualifications.
The federal
governmental program under which federal agencies and
departments can enter into ESPCs requires that energy service
providers have a track record in the industry and meet other
specified qualifications. Over 20 states require similar
qualifications. In 2008, we renewed our qualification to enter
into an indefinite delivery, indefinite quantity, or IDIQ,
contract under the U.S. Department of Energy program for
ESPCs. This IDIQ has an aggregate maximum potential ordering
amount of $5 billion and expires in 2019. We are currently
qualified to enter into ESPCs in most states that require
qualification. The scope of our qualifications provides us with
the opportunity to continue to grow our business with federal,
state and other governmental customers and differentiates us
from energy efficiency companies that have not been similarly
qualified.
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Integration of Strategic Acquisitions.
We have a
track record of completing over ten acquisitions that have
enabled us to broaden our offerings, expand our geographical
reach and accelerate our growth. We believe that our ability to
offer a comprehensive set of energy efficiency services across
North America has been, and will continue to be, enhanced by our
expertise in identifying and completing acquisitions that expand
our service offerings, as well as
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by our ability to integrate and leverage the skilled
engineering, sales and operational personnel that come to us
through these acquisitions.
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Strategy
Our goal is to capitalize on our strong customer base and broad
range of service offerings to become the leading provider of
comprehensive energy efficiency and renewable energy solutions.
Key elements of our strategy include the following:
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Pursue Organic Growth.
We plan to open additional
local offices in the regions we currently serve, as well as hire
additional sales personnel. We also plan to expand
geographically by opening new offices in regions we do not
currently serve in the United States and Canada, as well as in
Europe.
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Continue to Maintain Customer Focus.
We will
continue to maintain an entrepreneurial approach toward our
customers and remain flexible in designing projects tailored
specifically to meet their needs.
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Expand Scope of Product and Service Offerings.
We
plan to continue to expand our offerings by including new types
of energy efficiency services, products and improvements to
existing products based on technological advances in energy
savings strategies, equipment and materials.
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Meet Market Demand for Cost-Effective,
Environmentally-Friendly Solutions
. Through our
energy efficiency measures and small-scale renewable energy
plants and products, we enable customers to conserve energy and
reduce emissions of carbon dioxide and other pollutants. We plan
to continue to focus on providing sustainable energy solutions
that will address the growing demand for products and services
that create environmental benefits for customers.
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Increase Recurring Revenue.
For many of our energy
efficiency projects, we enter into multi-year O&M
contracts, and we plan to continue to grow both the number and
scope of such contracts. We also obtain recurring revenue from
sales of electricity, thermal energy and gas generated by the
small-scale renewable energy and central plants that we
construct and own, and we plan to continue to seek opportunities
to construct such plants.
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Grow Through Select Strategic Acquisitions.
We plan
to continue to pursue complementary acquisitions that will
enable us to both expand geographically in North America and
abroad, and broaden our product and service offerings.
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Risks
Associated with Our Business
Our business is subject to numerous risks, as more fully
described in the section entitled Risk Factors
immediately following this prospectus summary.
Our Dual
Class Capital Structure
Following this offering, we will have two classes of common
stock: Class A common stock and Class B common stock.
The rights of the holders of our Class A common stock and
our Class B common stock will be identical, except with
respect to voting and conversion. Each share of our Class A
common stock will be entitled to one vote per share and will not
be convertible into any other shares of our capital stock. Each
share of our Class B common stock will be entitled
to votes per share, will be
convertible at any time into one share of our Class A
common stock at the option of the holder of such share and will
also automatically convert into one share of our Class A
common stock upon the occurrence of certain specified events,
including a transfer of such shares (other than to such
holders family members, descendants or certain affiliated
persons or entities). See Description of Capital
Stock Common Stock.
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Corporate
Information
We were incorporated in Delaware in April 2000. Our principal
executive offices are located at 111 Speen Street,
Suite 410, Framingham, Massachusetts 01701 and our
telephone number is
(508) 661-2200.
Our website address is www.ameresco.com. Information contained
on our website is not incorporated by reference into this
prospectus, and you should not consider information contained on
our website to be part of this prospectus or in deciding whether
to purchase shares of our Class A common stock.
Ameresco, the Ameresco logo,
Green Clean Sustainable,
AXIS and other trademarks or service marks of
Ameresco appearing in this prospectus are the property of
Ameresco. This prospectus contains additional trade names,
trademarks and service marks of other companies, which are the
property of their respective owners.
Conflicts
of Interest
Bank of America, N.A., an affiliate of Merrill Lynch, Pierce,
Fenner & Smith Incorporated, an underwriter in this
offering, is acting as the agent and a lender under our
revolving line of credit. We intend to use a portion of the net
proceeds from this offering to repay the balance outstanding
under our $50 million revolving senior secured credit
facility, of which $19.9 million in principal was
outstanding as of December 31, 2009. See Use of
Proceeds and Underwriting.
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The
Offering
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Class A Common stock offered by:
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Ameresco
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Shares
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Selling stockholders
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Shares
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Total
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Shares
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Common stock to be outstanding after this offering:
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Class A
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Shares
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Class B
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Shares
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Total
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Shares
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Use of proceeds
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We intend to use our net proceeds from this offering (i) to
repay the balance outstanding under our $50 million
revolving senior secured credit facility, under which
$19.9 million in principal was outstanding as of
December 31, 2009, (ii) to repay the $3.0 million
subordinated note held by our president and chief executive
officer and (iii) for working capital and other general
corporate purposes, which may include opening additional offices
in the United States and abroad, expanding sales and marketing
activities, and funding the development and construction of our
small-scale renewable energy projects and other capital
expenditures. We may also use a portion of our net proceeds for
acquisitions of complementary companies, assets or technologies.
We will not receive any proceeds from the shares sold by the
selling stockholders. See Use of Proceeds for more
information.
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Risk Factors
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You should read the Risk Factors section and other
information included in this prospectus for a discussion of
factors to consider carefully before deciding to invest in
shares of our Class A common stock.
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Proposed symbol
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The number of shares of our Class A common stock and our
Class B Common Stock to be outstanding after this offering
is based on 7,271,142 shares of our Class A common
stock and 9,000,000 shares of our Class B common stock
outstanding as of December 31, 2009, and excludes:
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202,643 shares of our Class A common stock issuable
upon the exercise of a warrant that was outstanding and
exercisable as of December 31, 2009 at an exercise price of
$0.01 per share, which will remain outstanding after this
offering if not exercised prior to this offering;
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4,725,100 shares of our Class A common stock issuable
upon the exercise of stock options outstanding as of
December 31, 2009 at a weighted-average exercise price of
$5.36 per
share; and
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shares
of our Class A common stock that will be available for
future issuance under our 2010 stock incentive plan, or our 2010
stock plan, which will become effective upon the closing of this
offering.
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Except as otherwise noted, all information in this
prospectus:
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gives effect to the amendment and restatement of our
certificate of incorporation and amendment and restatement of
our by-laws to be effected prior to the closing of this
offering;
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gives effect to the reclassification of all outstanding
shares of our common stock as Class A common stock to be
effected prior to the closing of this offering;
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gives effect to the conversion of each outstanding option to
purchase shares of our common stock into an option to purchase
an equal number of shares of our Class A common stock at
the same exercise price per share;
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gives effect to the conversion of an outstanding warrant to
purchase 202,643 shares of our common stock into a warrant
to purchase an equal number of shares of our Class A common
stock at the same exercise price per share;
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gives effect to the election of all holders of our
convertible preferred stock, other than George P. Sakellaris,
our founder, principal stockholder, president and chief
executive officer, to convert all of their shares of our
convertible preferred stock into shares of our Class A
common stock prior to the closing of this offering;
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gives effect to the automatic conversion of all outstanding
shares of our convertible preferred stock, which will then be
held solely by Mr. Sakellaris, into shares of our Class B
common stock prior to the closing of this offering; and
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assumes no exercise by the underwriters of their
over-allotment option.
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7
Summary
Consolidated Financial Data
The following tables summarize the consolidated financial data
for our business for the periods presented. Our historical
results for prior periods are not necessarily indicative of
results to be expected for any future period. You should read
this summary consolidated financial data together with our
consolidated financial statements and related notes included
elsewhere in this prospectus and the information under
Selected Consolidated Financial Data and
Managements Discussion and Analysis of Financial
Condition and Results of Operations.
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Year Ended December 31,
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2007
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2008
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2009
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(In thousands, except share and per share data)
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Consolidated Statement of Income Data:
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Revenue:
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|
|
|
|
|
|
|
|
|
|
Energy efficiency revenue
|
|
$
|
345,936
|
|
|
$
|
325,032
|
|
|
$
|
340,636
|
|
Renewable energy revenue
|
|
|
32,541
|
|
|
|
70,822
|
|
|
|
87,881
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
378,477
|
|
|
|
395,854
|
|
|
|
428,517
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Direct expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Energy efficiency expenses
|
|
|
285,966
|
|
|
|
259,019
|
|
|
|
282,345
|
|
Renewable energy expenses
|
|
|
26,072
|
|
|
|
59,551
|
|
|
|
66,472
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
312,038
|
|
|
|
318,570
|
|
|
|
348,817
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
66,439
|
|
|
|
77,284
|
|
|
|
79,700
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
47,042
|
|
|
|
52,608
|
|
|
|
54,406
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
19,397
|
|
|
|
24,676
|
|
|
|
25,294
|
|
Other (expense) income, net
|
|
|
(3,138
|
)
|
|
|
(5,188
|
)
|
|
|
1,563
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before provision for income taxes
|
|
|
16,259
|
|
|
|
19,488
|
|
|
|
26,857
|
|
Income tax provision
|
|
|
(5,714
|
)
|
|
|
(1,215
|
)
|
|
|
(6,950
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
10,545
|
|
|
$
|
18,273
|
|
|
$
|
19,907
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per share attributable to common shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
1.90
|
|
|
$
|
3.42
|
|
|
$
|
3.98
|
|
Diluted
|
|
$
|
0.60
|
|
|
$
|
1.09
|
|
|
$
|
1.25
|
|
Weighted-average number of common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
5,560,511
|
|
|
|
5,339,055
|
|
|
|
4,995,956
|
|
Diluted
|
|
|
17,698,569
|
|
|
|
16,789,954
|
|
|
|
15,964,317
|
|
Other Operating Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA(1)
|
|
$
|
27,975
|
|
|
$
|
29,045
|
|
|
$
|
35,097
|
|
8
The pro forma consolidated balance sheet data give effect to
(i) the reclassification of all outstanding shares of our
common stock as Class A common stock, (ii) the election by
all holders of our convertible preferred stock, other than Mr.
Sakellaris, to convert all of their shares of our convertible
preferred stock into shares of our Class A common stock and
(iii) the conversion of all outstanding shares of our
convertible preferred stock into shares of our Class B
common stock. The pro forma as adjusted consolidated balance
sheet data also give effect to the sale
of shares
of our Class A common stock offered by us at an assumed
initial public offering price of $
per share, the midpoint of the estimated price range shown on
the cover page of this prospectus and after deducting the
estimated underwriting discount and estimated offering expenses
payable by us.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
|
|
|
|
|
Pro Forma
|
|
|
Actual
|
|
Pro Forma
|
|
As Adjusted
|
|
|
|
|
(Unaudited)
|
|
|
(In thousands)
|
|
Consolidated Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
47,928
|
|
|
$
|
|
|
|
$
|
|
|
Current assets
|
|
|
171,772
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
375,545
|
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
132,330
|
|
|
|
|
|
|
|
|
|
Long-term debt, less current portion
|
|
|
102,807
|
|
|
|
|
|
|
|
|
|
Subordinated debt
|
|
|
2,999
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
102,770
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
We define adjusted EBITDA as operating income before
depreciation and amortization expense, share-based compensation
expense and a non-recurring non-cash recovery of a contingency
in 2008. Adjusted EBITDA is a non-GAAP financial measure and
should not be considered as an alternative to operating income
or any other measure of financial performance calculated and
presented in accordance with U.S. generally accepted accounting
principles, or GAAP.
|
We believe adjusted EBITDA is useful to investors in evaluating
our operating performance for the following reasons:
|
|
|
|
|
adjusted EBITDA and similar non-GAAP measures are widely used by
investors to measure a companys operating performance
without regard to items that can vary substantially from company
to company depending upon financing and accounting methods, book
values of assets, capital structures and the methods by which
assets were acquired;
|
|
|
|
securities analysts often use adjusted EBITDA and similar
non-GAAP measures as supplemental measures to evaluate the
overall operating performance of companies; and
|
|
|
|
by comparing our adjusted EBITDA in different historical
periods, our investors can evaluate our operating results
without the additional variations of depreciation and
amortization expense, share-based compensation expense and the
non-recurring non-cash recovery of a contingency in 2008.
|
Our management uses adjusted EBITDA:
|
|
|
|
|
as a measure of operating performance, because it does not
include the impact of items that we do not consider indicative
of our core operating performance;
|
|
|
|
for planning purposes, including the preparation of our annual
operating budget;
|
|
|
|
to allocate resources to enhance the financial performance of
our business;
|
|
|
|
to evaluate the effectiveness of our business
strategies; and
|
|
|
|
in communications with our board of directors and investors
concerning our financial performance.
|
9
We understand that, although measures similar to adjusted EBITDA
are frequently used by investors and securities analysts in
their evaluation of companies, adjusted EBITDA has limitations
as an analytical tool, and you should not consider it in
isolation or as a substitute for analysis of our results of
operations as reported under GAAP. Some of these limitations are:
|
|
|
|
|
adjusted EBITDA does not reflect our cash expenditures or future
requirements for capital expenditures or other contractual
commitments;
|
|
|
|
adjusted EBITDA does not reflect changes in, or cash
requirements for, our working capital needs;
|
|
|
|
adjusted EBITDA does not reflect stock-based compensation
expense;
|
|
|
|
adjusted EBITDA does not reflect cash requirements for income
taxes;
|
|
|
|
adjusted EBITDA does not reflect net interest income (expense);
|
|
|
|
although depreciation and amortization are non-cash charges, the
assets being depreciated or amortized will often have to be
replaced in the future, and adjusted EBITDA does not reflect any
cash requirements for these replacements; and
|
|
|
|
other companies in our industry may calculate adjusted EBITDA
differently than we do, limiting its usefulness as a comparative
measure.
|
To properly and prudently evaluate our business, we encourage
you to review the GAAP financial statements included elsewhere
in this prospectus, and not to rely on any single financial
measure to evaluate our business.
The following table presents a reconciliation of adjusted EBITDA
to operating income, the most comparable GAAP measure:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
|
(In thousands)
|
|
|
Operating income
|
|
$
|
19,397
|
|
|
$
|
24,676
|
|
|
$
|
25,294
|
|
Depreciation and impairment
|
|
|
5,898
|
|
|
|
7,278
|
|
|
|
6,634
|
|
Stock-based compensation
|
|
|
2,679
|
|
|
|
2,941
|
|
|
|
3,169
|
|
Recovery of contingency
|
|
|
|
|
|
|
(5,850
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
|
$
|
27,975
|
|
|
$
|
29,045
|
|
|
$
|
35,097
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10
RISK
FACTORS
An investment in our Class A common stock involves a
high degree of risk. In deciding whether to invest, you should
carefully consider the following risk factors. Any of the
following risks could have a material adverse effect on our
business, financial condition and operating results and cause
the value of our Class A common stock to decline, which
could cause you to lose all or part of your investment. When
determining whether to invest in our Class A common stock,
you should also refer to the other information in this
prospectus, including the consolidated financial statements and
related notes.
If
demand for our energy efficiency and renewable energy solutions
does not develop as we expect, our revenue will suffer and our
business will be harmed.
Our revenue has increased significantly since January 1,
2005. We believe, and our growth expectations assume, that the
market for energy efficiency and renewable energy solutions will
continue to grow, that we will increase our penetration of this
market and that our revenue from selling into this market will
continue to increase. If our expectations as to the size of this
market and our ability to sell our products and services in this
market are not correct, our revenue will suffer and our business
will be harmed.
The
projects we undertake for our customers generally require
significant capital, which our customers or we may finance
through third parties, and such financing may not be available
to our customers or to us on favorable terms, if at
all.
Our projects are typically financed by third parties. The cost
of these projects to our customers can reach up to
$200 million. For our energy efficiency projects, we often
assist our customers in arranging third-party financing. For
small-scale renewable energy plants that we own, we typically
rely on a combination of our working capital and debt to finance
construction costs. The significant disruptions in the credit
and capital markets in the last several years have made it more
difficult for our customers and us to obtain financing on
acceptable terms or, in some cases, at all. If we or our
customers are unable to raise funds on acceptable terms when
needed, we may be unable to secure customer contracts, the size
of contracts we do obtain may be smaller or we could be required
to delay the development and construction of projects, reduce
the scope of those projects or otherwise restrict our operations.
In 2008, we entered into a $50 million revolving senior
secured credit facility that matures in June 2011. Availability
under the facility is based on two times our EBITDA for the
preceding four quarters, and we are required to maintain a
minimum EBITDA of $20 million on a rolling four-quarter
basis and a minimum level of tangible net worth. This facility
may not be sufficient to meet our needs as our business grows,
and we may be unable to extend or replace it on acceptable
terms, or at all.
Any inability by us or our customers to raise the funds
necessary to finance our projects, or any inability by us to
extend or replace our revolving credit facility, could
materially harm our business, financial condition and operating
results.
Our
operating results may fluctuate significantly from quarter to
quarter and may fall below expectations in any particular fiscal
quarter.
Our operating results are difficult to predict and have
historically fluctuated from quarter to quarter due to a variety
of factors, many of which are outside of our control. As a
result, comparing our operating results on a
period-to-period
basis may not be meaningful, and you should not rely on our past
results as an indication of our future performance. If our
revenue or operating results fall below the expectations of
investors or any securities analysts that follow our company in
any period, the trading price of our Class A common stock
would likely decline.
11
Factors that may cause our operating results to fluctuate
include:
|
|
|
|
|
our ability to arrange financing for projects;
|
|
|
|
changes in federal, state and local government policies and
programs related to, or a reduction in governmental support for,
energy efficiency and renewable energy;
|
|
|
|
the timing of work we do on projects where we recognize revenue
on a percentage of completion basis;
|
|
|
|
seasonality in construction and in demand for our products and
services;
|
|
|
|
a customers decision to delay our work on, or other risks
involved with, a particular project;
|
|
|
|
availability and costs of labor and equipment;
|
|
|
|
the addition of new customers or the loss of existing customers;
|
|
|
|
the size and scale of new customer projects;
|
|
|
|
the availability of bonding for our projects;
|
|
|
|
our ability to control costs, including operating expenses;
|
|
|
|
changes in the mix of our products and services;
|
|
|
|
the rates at which customers renew their O&M contracts with
us;
|
|
|
|
the length of our sales cycle;
|
|
|
|
the productivity and growth of our sales force;
|
|
|
|
the timing of opening of new offices or making other significant
investments in the growth of our business, as the revenue we
hope to generate from those expenses often lags several quarters
behind those expenses;
|
|
|
|
changes in pricing by us or our competitors, or the need to
provide discounts to win business;
|
|
|
|
costs related to the acquisition and integration of companies or
assets;
|
|
|
|
general economic trends, including changes in energy efficiency
spending or geopolitical events such as war or incidents of
terrorism; and
|
|
|
|
future accounting pronouncements and changes in accounting
policies.
|
Our operating expenses do not always vary directly with revenue
and may be difficult to adjust in the short term. As a result,
if revenue for a particular quarter is below our expectations,
we may not be able to proportionately reduce operating expenses
for that quarter, and therefore such a revenue shortfall could
have a disproportionate effect on our operating results for that
quarter.
We may
not be able to maintain or increase our
profitability.
We have been profitable on an annual basis since the year ended
December 31, 2002. However, we have incurred net losses in
certain quarters since that time. We may not succeed in
maintaining our profitability and could incur quarterly or
annual losses in future periods. We intend to increase our
expenses as we grow our business and expand into new geographic
locations, and we expect to incur additional accounting, legal
and other expenses associated with being a public company. If
our revenue does not increase sufficiently to offset these
increases in costs, our operating results will be harmed. Our
historical operating results should not be considered as
necessarily indicative of future operating results and we can
provide no assurance that we will be able to maintain or
increase our profitability in the future.
12
We may
not recognize all revenue from our backlog or receive all
payments anticipated under awarded projects and customer
contracts.
As of December 31, 2009, we had backlog of approximately
$590 million in future revenue under signed customer
contracts for the installation or construction of projects,
which we expect to be recognized over the period from 2010 to
2013, and we had been awarded, but not yet signed customer
contracts for, projects with estimated total future revenue of
an additional $700 million. We also expect to realize
recurring revenue both under long-term O&M contracts and
under long-term energy supply contracts for renewable energy
plants that we own.
Our customers have the right under some circumstances to
terminate contracts or defer the timing of our services and
their payments to us. In addition, our government contracts are
subject to the risks described below under Provisions in
government contracts may harm our business, financial condition
and operating results. The payment estimates for projects
that have been awarded to us but for which we have not yet
signed contracts have been prepared by management and are based
upon a number of assumptions, including that the size and scope
of the awarded projects will not change prior to the signing of
customer contracts, that we or our customers will be able to
obtain any necessary third-party financing for the awarded
projects, and that we and our customers will reach agreement on
and execute contracts for the awarded projects. We are not
always able to enter into a contract for an awarded project on
the terms proposed. As a result, we may not receive all of the
revenue that we include in our backlog or that we estimate we
will receive under awarded projects. If we do not receive all of
the revenue we currently expect to receive, our future operating
results will be adversely affected. In addition, a delay in the
receipt of revenue, even if such revenue is eventually received,
may cause our operating results for a particular quarter to fall
below our expectations.
Our
business is affected by seasonal trends and construction cycles,
and these trends and cycles could have an adverse effect on our
operating results.
We are subject to seasonal fluctuations and construction cycles,
particularly in climates that experience colder weather during
the winter months, such as the northern United States and
Canada, or at educational institutions, where large projects are
typically carried out during summer months when their facilities
are unoccupied. In addition, government customers, many of which
have fiscal years that do not coincide with ours, typically
follow annual procurement cycles and appropriate funds on a
fiscal-year basis even though contract performance may take more
than one year. Further, government contracting cycles can be
affected by the timing of, and delays in, the legislative
process related to government programs and incentives that help
drive demand for energy efficiency and renewable energy
projects. As a result, our revenue and operating income in the
third quarter are typically higher, and our revenue and
operating income in the first quarter are typically lower, than
in other quarters of the year. As a result of such fluctuations,
we may occasionally experience declines in revenue or earnings
as compared to the immediately preceding quarter, and
comparisons of our operating results on a
period-to-period
basis may not be meaningful.
Our
business depends in part on federal, state, provincial and local
government support for energy efficiency and renewable energy,
and a decline in such support could harm our
business.
We depend in part on government legislation and policies that
support energy efficiency and renewable energy projects and that
enhance the economic feasibility of our energy efficiency
services and small-scale renewable energy projects. The U.S. and
Canadian federal governments and several of the states and
provinces in which we operate support our existing and potential
customers investments in energy efficiency and renewable
energy through legislation and regulations that authorize and
regulate the manner in which certain governmental entities do
business with us, encourage or subsidize governmental
procurement of our services, provide regulatory, tax and other
incentives to others to procure our services and provide us with
tax and other incentives that reduce our costs or increase our
revenue.
For example, U.S. legislation authorizing federal agencies to
enter into ESPCs, such as those we enter into with our
customers, was enacted in 1992. In 2007, three years after the
expiration of the original legislation, new ESPC legislation was
enacted without an expiration provision, and in the same year,
the
13
President of the United States issued an executive order
requiring federal agencies to set goals to reduce energy use and
increase renewable energy sources and use. In addition, the
American Recovery and Reinvestment Act of 2009 allocated
$67 billion to promote clean energy, energy efficiency and
advanced vehicles. Additionally, the Emergency Economic
Stabilization Act of 2008 instituted the 1603 cash grant
program, which provides cash in lieu of an investment tax credit
for eligible renewable energy generation sources for which
construction commences in 2010. The Internal Revenue Code, or
the Code, currently provides production tax credits for the
generation of electricity from wind projects and from LFG-fueled
power projects, and an investment tax credit or grant in lieu of
such tax credits for investments in LFG, wind, biomass and solar
power generation projects. Various state and local governments
have also implemented similar programs and incentives, including
legislation authorizing the procurement of ESPCs.
We, our customers and prospective customers frequently depend on
these programs to help justify the costs associated with, and to
finance, energy efficiency and renewable energy projects. If any
of these incentives are adversely amended, eliminated or not
extended beyond their current expiration dates, or if funding
for these incentives is reduced, it could adversely affect our
ability to complete projects for existing customers and obtain
project commitments from new customers. A delay or failure by
government agencies to administer, or make procurements under,
these programs in a timely and efficient manner could have a
material adverse effect on our existing and potential
customers willingness to enter into project commitments
with us.
In addition, some of our customers purchase electricity, thermal
energy or processed LFG from our renewable energy plants, or
purchase other energy services from us, because tax, energy and
environmental laws encourage or in some cases require these
customers to procure power from renewable or low-emission
sources, or to reduce their electricity use. Changes to these
tax, energy and environmental laws could reduce our
customers incentives and mandates to purchase the kinds of
services that we supply, and could thereby adversely affect our
business, financial condition and operating results.
Changes
in the laws and regulations governing the public procurement of
ESPCs could have a material impact on our
business.
We derive a significant amount of our revenue from ESPCs with
our government customers. While federal, state and local
government rules governing such contracts vary, such rules may,
for example, permit the funding of such projects through
long-term financing arrangements; permit long-term payback
periods from the savings realized through such contracts; allow
units of government to exclude debt related to such projects
from the calculation of their statutory debt limitation; allow
for award of contracts on a best value instead of
lowest cost basis; and allow for the use of sole
source providers. To the extent these rules become more
restrictive in the future, our business could be harmed.
A
significant decline in the fiscal health of federal, state,
provincial and local governments could reduce demand for our
energy efficiency and renewable energy projects.
In 2009, approximately 85% of our revenue was derived from sales
to federal, state, provincial or local governmental entities. A
significant decline in the fiscal health of these existing and
potential customers may make it difficult for them to enter into
contracts for our services or to obtain financing necessary to
fund such contracts, or may cause them to seek to renegotiate or
terminate existing agreements with us.
Failure
of third parties to manufacture quality products or provide
reliable services in a timely manner could cause delays in the
delivery of our services and completion of our projects, which
could damage our reputation, have a negative impact on our
relationships with our customers and adversely affect our
growth.
Our success depends on our ability to provide services and
complete projects in a timely manner, which in part depends on
the ability of third parties to provide us with timely and
reliable services and products, such as boilers, chillers,
cogeneration systems, PV panels, lighting and other complex
components. In providing our services and completing our
projects, we rely on products that meet our design
specifications
14
and components manufactured and supplied by third parties, as
well as on services performed by subcontractors.
We rely on subcontractors to perform substantially all of the
construction and installation work related to our projects. We
provide all design and engineering work related to, and act as
the general contractor for, our projects. We have established
relationships with subcontractors that we believe to be reliable
and capable of producing satisfactory results, but we often need
to engage subcontractors with whom we have no experience for our
projects. If any of our subcontractors are unable to provide
services that meet or exceed our customers expectations or
satisfy our contractual commitments, our reputation, business
and operating results could be harmed.
The warranties provided by our third-party suppliers and
subcontractors typically limit any direct harm we might
experience as a result of our relying on their products and
services. However, there can be no assurance that a supplier or
subcontractor will be willing or able to fulfill its contractual
obligations and make necessary repairs or replace equipment. In
addition, these warranties generally expire within one to five
years or may be of limited scope or provide limited remedies. If
we are unable to avail ourselves of warranty protection, we may
incur liability to our customers or additional costs related to
the affected products and components, including replacement and
installation costs, which could have a material adverse effect
on our business, financial condition and operating results.
Moreover, any delays, malfunctions, inefficiencies or
interruptions in these products or services even if
covered by warranties could adversely affect the
quality and performance of our solutions. This could cause us to
experience difficulty retaining current customers and attracting
new customers, and could harm our brand, reputation and growth.
In addition, any significant interruption or delay by our
suppliers in the manufacture or delivery of products or services
on which we depend could require us to expend considerable time,
effort and expense to establish alternate sources for such
products and services.
We may
have liability to our customers under our ESPCs if our projects
fail to deliver the energy use reductions to which we are
committed under the contract.
For our energy efficiency projects, we typically enter into
ESPCs under which we commit that the projects will satisfy
agreed-upon
performance standards appropriate to the project. These
commitments are typically structured as guarantees of increased
energy efficiency that are based on the design, capacity,
efficiency or operation of the specific equipment and systems we
install. Our commitments generally fall into three categories:
pre-agreed, equipment-level and whole building-level. Under a
pre-agreed efficiency commitment, our customer reviews the
project design in advance and agrees that, upon or shortly after
completion of installation of the specified equipment comprising
the project, the pre-agreed increase in energy efficiency will
have been met. Under an equipment-level commitment, we commit to
a level of increased energy efficiency based on the difference
in use measured first with the existing equipment and then with
the replacement equipment upon completion of installation. A
whole building-level commitment requires measurement and
verification of increased energy efficiency for a whole
building, often based on readings of the utility meter where
usage is measured. Depending on the project, the measurement and
verification may be required only once, upon installation, based
on an analysis of one or more sample installations, or may be
required to be repeated at agreed upon intervals generally over
periods of up to 20 years.
Under our contracts, we typically do not take responsibility for
a wide variety of factors outside our control and exclude or
adjust for such factors in commitment calculations. These
factors include variations in energy prices and utility rates,
weather, facility occupancy schedules, the amount of
energy-using equipment in a facility, and failure of the
customer to operate or maintain the project properly. We rely in
part on warranties from our equipment suppliers and
subcontractors to back-stop the warranties we provide to our
customers and, where appropriate, pass on the warranties to our
customers. However, the warranties we provide to our customers
are sometimes broader in scope or longer in duration than the
corresponding warranties we receive from our suppliers and
subcontractors, and we bear the risk for any differences, as
well as the risk of warranty default by our suppliers and
subcontractors.
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Typically, our performance commitments apply to the aggregate
overall performance of a project rather than to individual
energy efficiency measures. Therefore, to the extent an
individual measure underperforms, it may be offset by other
measures that overperform. In the event that an energy
efficiency project does not perform according to the
agreed-upon
specifications, our agreements typically allow us to satisfy our
obligation by adjusting or modifying the installed equipment,
installing additional measures to provide substitute energy
savings, or paying the customer for lost energy savings based on
the assumed conditions specified in the agreement. From our
inception to December 31, 2009, our total payments to
customers and incurred equipment replacement and maintenance
costs under our energy efficiency commitments, after customer
acceptance of a project, have been less than $100,000 in the
aggregate. However, we may incur additional or increased
liabilities or expenses under our ESPCs in the future. Such
liabilities or expenses could be substantial, and they could
materially harm our business, financial condition or operating
results. In addition, any disputes with a customer over the
extent to which we bear responsibility to improve performance or
make payments to the customer may diminish our prospects for
future business from that customer or damage our reputation in
the marketplace.
We may
assume responsibility under customer contracts for factors
outside our control, including, in connection with some customer
projects, the risk that fuel prices will increase.
We typically do not take responsibility under our contracts for
a wide variety of factors outside our control. We have, however,
in a limited number of contracts assumed some level of risk and
responsibility for certain factors sometimes only to
the extent that variations exceed specified
thresholds and may also do so under certain
contracts in the future, particularly in our contracts for
renewable energy projects.
For example, under a contract for the construction and operation
of a cogeneration facility at the U.S. Department of Energy
Savannah River Site in South Carolina, a subsidiary of ours is
exposed to the risk that the price of the biomass that will be
used to fuel the cogeneration facility may rise during the
19-year
performance period of the contract. Several provisions in that
contract mitigate the price risk, including a specified annual
increase in the price our subsidiary charges the customer for
biomass fuel, incentives for the customer to make
on-site
biomass available to the cogeneration facility, an escrow fund
from which our subsidiary can withdraw funds should the price of
biomass in a given year exceed that charged to the customer, the
right to reduce the amount of steam generated by the use of
biomass to a stipulated minimum level and the ability to use
other fuels, such as used tires, to produce up to 30% of the
facilitys total production. In addition, although we
typically structure our contracts so that our obligation to
supply a customer with LFG, electricity or steam, for example,
does not exceed the quantity produced by the production
facility, in some circumstances we may commit to supply a
customer with specified minimum quantities based on our
projections of the facilitys production capacity. In such
circumstances, if we are unable to meet such commitments, we may
be required to incur additional costs or face penalties.
Despite the steps we have taken to mitigate risks under these
and other contracts, such steps may not be sufficient to avoid
the need to incur increased costs to satisfy our commitments,
and such costs could be material. Increased costs that we are
unable to pass through to our customers could have a material
adverse effect on our operating results.
Our
business depends on experienced and skilled personnel and
substantial specialty subcontractor resources, and if we lose
key personnel or if we are unable to attract and integrate
additional skilled personnel, it will be more difficult for us
to manage our business and complete projects.
The success of our business depends in large part on the skill
of our personnel. Accordingly, it is critical that we maintain,
and continue to build, a highly experienced management team and
specialized workforce, including engineers, project and
construction management, and business development and sales
professionals. In addition, our construction projects require a
significant amount of trade labor resources, such as
electricians, mechanics, carpenters, masons and other skilled
workers, as well as certain specialty subcontractor skills.
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Competition for personnel, particularly those with expertise in
the energy services and renewable energy industries, is high,
and identifying candidates with the appropriate qualifications
can be costly and difficult. We may not be able to hire the
necessary personnel to implement our business strategy given our
anticipated hiring needs, or we may need to provide higher
compensation or more training to our personnel than we currently
anticipate.
In the event we are unable to attract, hire and retain the
requisite personnel and subcontractors, we may experience delays
in completing projects in accordance with project schedules and
budgets, which may have an adverse effect on our financial
results, harm our reputation and cause us to curtail our pursuit
of new projects. Further, any increase in demand for personnel
and specialty subcontractors may result in higher costs, causing
us to exceed the budget on a project, which in turn may have an
adverse effect on our business, financial condition and
operating results and harm our relationships with our customers.
Our future success is particularly dependent on the vision,
skills, experience and effort of our senior management team,
including our executive officers and our founder, president and
chief executive officer, George P. Sakellaris. If we were to
lose the services of any of our executive officers or key
employees, our ability to effectively manage our operations and
implement our strategy could be harmed and our business may
suffer.
If we
cannot obtain surety bonds and letters of credit, our ability to
operate may be restricted.
Federal and state laws require us to secure the performance of
certain long-term obligations through surety bonds and letters
of credit. In addition, we are occasionally required to provide
bid bonds or performance bonds to secure our performance under
energy efficiency contracts. Our sureties have historically
required that our principal stockholder, George P. Sakellaris,
who is also our founder, president and chief executive officer,
personally indemnify them for up to an aggregate of
$50 million of losses associated with the bonds they have
provided on our behalf. We expect this indemnity will terminate
following the closing of this offering. In addition, in the
event that Mr. Sakellaris no longer controls our company,
our sureties may reevaluate our eligibility for surety bonds.
Although we expect the net proceeds of this offering to increase
our bonding capacity, our ability to obtain required bonds or
letters of credit depends in large part upon our capitalization,
working capital, past performance, management expertise and
reputation, and external factors beyond our control, including
the overall capacity of the surety market. Our ability to obtain
letters of credit under our existing credit arrangements is
limited. We are not permitted to have more than $10 million
in letters of credit outstanding at any time (including letters
of credit that have been drawn upon but not repaid on our
behalf) under the terms of our revolving senior secured credit
facility. Moreover, our use of letters of credit limits our
borrowing capability under our revolving senior secured credit
facility as the aggregate amount of letters of credit we have
outstanding at any time reduces our borrowing capacity under the
facility by an equal amount. As of December 31, 2009, we
had no letters of credit outstanding.
In the future, we may have difficulty procuring or maintaining
surety bonds or letters of credit, and obtaining them may become
more expensive, require us to post cash collateral or otherwise
involve unfavorable terms. Because we are sometimes required to
have performance bonds or letters of credit in place before
projects can commence or continue, our failure to obtain or
maintain those bonds and letters of credit would adversely
affect our ability to begin and complete projects, and thus
could have a material adverse effect on our business, financial
condition and operating results.
We
operate in a highly competitive industry, and our current or
future competitors may be able to compete more effectively than
we do, which could have a material adverse effect on our
business, revenue, growth rates and market share.
Our industry is highly competitive, with many companies of
varying size and business models, many of which have their own
proprietary technologies, competing for the same business as we
do. Many of our competitors have longer operating histories and
greater resources than us, and could focus their substantial
financial resources to develop a competing business model,
develop products or services that are more attractive to
potential customers than what we offer or convince our potential
customers that they should
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require financing arrangements that would be impractical for
smaller companies to offer. Our competitors may also offer
energy solutions at prices below cost, devote significant sales
forces to competing with us or attempt to recruit our key
personnel by increasing compensation, any of which could improve
their competitive positions. Any of these competitive factors
could make it more difficult for us to attract and retain
customers, cause us to lower our prices in order to compete, and
reduce our market share and revenue, any of which could have a
material adverse effect on our financial condition and operating
results. We can provide no assurance that we will continue to
effectively compete against our current competitors or
additional companies that may enter our markets.
In addition, we may also face competition based on technological
developments that reduce demand for electricity, increase power
supplies through existing infrastructure or that otherwise
compete with our products and services. We also encounter
competition in the form of potential customers electing to
develop solutions or perform services internally rather than
engaging an outside provider such as us.
We may
be unable to complete or operate our projects on a profitable
basis or as we have committed to our customers.
Development, installation and construction of our energy
efficiency and renewable energy projects, and operation of our
renewable energy projects, entails many risks, including:
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failure to receive critical components and equipment that meet
our design specifications and can be delivered on schedule;
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failure to obtain all necessary rights to land access and use;
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failure to receive quality and timely performance of third-party
services;
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increases in the cost of labor, equipment and commodities needed
to construct or operate projects;
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permitting and other regulatory issues, license revocation and
changes in legal requirements;
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shortages of equipment or skilled labor;
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unforeseen engineering problems;
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failure of a customer to accept or pay for renewable energy that
we supply;
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weather interferences, catastrophic events including fires,
explosions, earthquakes, droughts and acts of terrorism; and
accidents involving personal injury or the loss of life;
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labor disputes and work stoppages;
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mishandling of hazardous substances and waste; and
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other events outside of our control.
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Any of these factors could give rise to construction delays and
construction and other costs in excess of our expectations. This
could prevent us from completing construction of our projects,
cause defaults under our financing agreements or under contracts
that require completion of project construction by a certain
time, cause projects to be unprofitable for us, or otherwise
impair our business, financial condition and operating results.
Our
small-scale renewable energy plants may not generate expected
levels of output.
The small-scale renewable energy plants that we construct and
own are subject to various operating risks that may cause them
to generate less than expected amounts of processed LFG,
electricity or thermal energy. These risks include a failure or
degradation of our, our customers or utilities
equipment; an inability to find suitable replacement equipment
or parts; less than expected supply of the plants source
of renewable energy, such as LFG or biomass; or a faster than
expected diminishment of such supply. Any extended interruption
in the plants operation, or failure of the plant for any
reason to generate the expected amount of
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output, could have a material adverse effect on our business and
operating results. In addition, we have in the past, and could
in the future, incur material asset impairment charges if any of
our renewable energy plants incurs operational issues that
indicate that our expected future cash flows from the plant are
less than its carrying value. Any such impairment charge could
have a material adverse effect on our operating results in the
period in which the charge is recorded.
We may
be unable to manage our growth effectively.
Our business and operations have expanded rapidly in the last
several years, and we anticipate that further expansion of our
organization and operations will be required to achieve our
expectations for future growth. In addition, in order to manage
our expanding operations, we will also need to continue to
improve our management, operational and financial controls and
our reporting systems and procedures. All of these measures will
require significant expenditures and will demand the attention
of management. If we do not continue to enhance our management
personnel and our operational and financial systems and controls
in response to growth in our business, we could experience
operating inefficiencies that could impair our competitive
position and could increase our costs more than we had planned.
If we are unable to manage growth effectively, our business,
financial condition and operating results could be adversely
affected.
We expect that some of our growth will be accomplished through
the opening of new offices and the hiring of additional
personnel to staff those offices. Even if an office is
ultimately successful in generating additional revenue and
profit for us, there is generally a lag of several years before
we are able to recoup the expenses associated with opening that
office.
In
order to secure contracts for new projects, we typically face a
long and variable selling cycle that requires significant
resource commitments and requires a long lead time before we
realize revenue.
The sales, design and construction process for energy efficiency
and renewable energy projects typically takes from 12 to
36 months, with sales to federal government and housing
authority customers tending to require the longest sales
processes. Our existing and potential customers generally have
extended budgeting and procurement processes, and sometimes must
engage in regulatory approval processes, related to our
services. Most of our potential customers issue a request for
proposal, or RFP, as part of their consideration of alternatives
for their proposed project. In preparation for responding to an
RFP, we typically conduct a preliminary audit of the
customers needs and the opportunity to reduce its energy
costs. For projects involving a renewable energy plant that is
not located on a customers site or that uses sources of
energy not within the customers control, the sales process
also involves the identification of sites with attractive
sources of renewable energy, such as a landfill or a site with
high winds, and it may involve obtaining necessary rights and
governmental permits to develop a project on that site. If we
are awarded a project, we then perform a more detailed audit of
the customers facilities, which serves as the basis for
the final specifications of the project. We then must negotiate
and execute a contract with the customer. In addition, we or the
customer typically need to obtain financing for the project.
This extended sales process requires the dedication of
significant time by our sales and management personnel and our
use of significant financial resources, with no certainty of
success or recovery of our related expenses. A potential
customer may go through the entire sales process and not accept
our proposal. All of these factors can contribute to
fluctuations in our quarterly financial performance and increase
the likelihood that our operating results in a particular
quarter will fall below investor expectations. These factors
could also adversely affect our business, financial condition
and operating results due to increased spending by us that is
not offset by increased revenue.
Provisions
in our government contracts may harm our business, financial
condition and operating results.
A significant majority of our contract backlog and projects that
have been awarded to us but have not yet been committed to
signed contracts is attributable to customers that are
government entities. Our contracts with the federal government
and its agencies, and with state, provincial and local
governments, customarily
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contain provisions that give the government substantial rights
and remedies, many of which are not typically found in
commercial contracts, including provisions that allow the
government to:
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terminate existing contracts, in whole or in part, for any
reason or no reason;
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reduce or modify contracts or subcontracts;
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decline to award future contracts if actual or apparent
organizational conflicts of interest are discovered, or to
impose organizational conflict mitigation measures as a
condition of eligibility for an award;
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suspend or debar the contractor from doing business with the
government or a specific government agency; and
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pursue criminal or civil remedies under the False Claims Act,
False Statements Act and similar remedy provisions unique to
government contracting.
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Generally, government contracts contain provisions permitting
unilateral termination or modification, in whole or in part, at
the governments convenience. Under general principles of
government contracting law, if the government terminates a
contract for convenience, the terminated company may recover
only its incurred or committed costs, settlement expenses and
profit on work completed prior to the termination. If the
government terminates a contract for default, the defaulting
company is entitled to recover costs incurred and associated
profits on accepted items only and may be liable for excess
costs incurred by the government in procuring undelivered items
from another source. In most of our contracts with the federal
government, the government has agreed to make a payment to us in
the event that it terminates the agreement early. The
termination payment is designed to compensate us for the cost of
construction plus financing costs and profit on the work
completed.
In ESPCs for governmental entities, the methodologies for
computing energy savings may be less favorable than for
non-governmental customers and may be modified during the
contract period. We may be liable for price reductions if the
projected savings cannot be substantiated.
In addition to the right of the federal government to terminate
its contracts with us, federal government contracts are
conditioned upon the continuing approval by Congress of the
necessary spending to honor such contracts. Congress often
appropriates funds for a program on a September 30 fiscal-year
basis even though contract performance may take more than one
year. Consequently, at the beginning of many major governmental
programs, contracts often may not be fully funded, and
additional monies are then committed to the contract only if, as
and when appropriations are made by Congress for future fiscal
years. Similar practices are likely to also affect the
availability of funding for our contracts with Canadian, as well
as state and local, government entities. If one or more of our
government contracts were terminated or reduced, or if
appropriations for the funding of one or more of our contracts
is delayed or terminated, our business, financial condition and
operating results could be adversely affected.
Government contracts normally contain additional terms and
conditions that may increase our costs of doing business, reduce
our profits and expose us to liability for failure to comply
with these terms and conditions. These include, for example:
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specialized accounting systems unique to government contracting,
which may include mandatory compliance with federal Cost
Accounting Standards;
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mandatory financial audits and potential liability for
adjustments in contract prices;
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public disclosure of contracts, which may include pricing
information;
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mandatory socioeconomic compliance requirements, including small
business promotion, labor, environmental and
U.S. manufacturing requirements; and
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requirements for maintaining current facility
and/or
personnel security clearances to access certain government
facilities or to maintain certain records, and related
industrial security compliance requirements.
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Our contracts with Canadian governmental entities frequently
involve similar risks. Any failure by us to comply with these
governmental requirements could adversely affect our business.
Our
renewable energy projects, particularly our LFG projects, depend
on locating and acquiring suitable operating sites, of which
there are a limited number.
Our small-scale renewable energy projects must be situated at
sites that have access to renewable sources of energy.
Specifically, LFG projects must originate on or near landfill
sites, of which approximately 500 are currently available in the
United States for economically viable LFG projects. Sites for
our renewable energy plants must be suitable for construction
and efficient operation, which, among other things, requires
appropriate road access. Further, many plants must be
interconnected to electricity transmission or distribution
networks. Once we have identified a suitable operating site,
obtaining the requisite LFG
and/or
land
rights (including access rights, setbacks and other easements)
requires us to negotiate with landowners and local government
officials. These negotiations can take place over a long time,
are not always successful and sometimes require economic
concessions not in our original plans. The property rights
necessary to construct and interconnect our plants must also be
insurable and otherwise satisfactory to our financing
counterparties. In addition, our ability to obtain adequate LFG
and/or
property rights is subject to competition. If a competitor or
other party obtains LFG
and/or
land
rights critical to our project development efforts and we are
unable to reach agreement for their use, we could incur losses
as a result of development costs for sites we do not develop,
which we would have to write off. If we are unable to obtain
adequate LFG
and/or
property or other rights for a renewable energy plant, including
its interconnection, that plant may be smaller in size or
potentially unfeasible. Failure to obtain insurable property
rights for a project satisfactory to our financing sources would
preclude our ability to obtain third-party financing and could
prevent ongoing development and construction of that project.
We
plan to expand our business in part through future acquisitions,
but we may not be able to identify or complete suitable
acquisitions.
Historically, acquisitions have been a significant part of our
growth strategy. We plan to continue to use acquisitions of
companies or assets to expand our project skill-sets and
capabilities, expand our geographic markets, add experienced
management and increase our product and service offerings.
However, we may be unable to implement this growth strategy if
we cannot identify suitable acquisition candidates, reach
agreement with acquisition targets on acceptable terms or
arrange required financing for acquisitions on acceptable terms.
In addition, the time and effort involved in attempting to
identify acquisition candidates and consummate acquisitions may
divert members of our management from the operations of our
company.
Any
future acquisitions that we may make could disrupt our business,
cause dilution to our stockholders and harm our business,
financial condition or operating results.
If we are successful in consummating acquisitions, those
acquisitions could subject us to a number of risks, including:
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the purchase price we pay could significantly deplete our cash
reserves or result in dilution to our existing stockholders;
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we may find that the acquired company or assets do not improve
our customer offerings or market position as planned;
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we may have difficulty integrating the operations and personnel
of the acquired company;
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key personnel and customers of the acquired company may
terminate their relationships with the acquired company as a
result of the acquisition;
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we may experience additional financial and accounting challenges
and complexities in areas such as tax planning and financial
reporting;
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we may assume or be held liable for risks and liabilities
(including for environmental-related costs) as a result of our
acquisitions, some of which we may not discover during our due
diligence or adequately adjust for in our acquisition
arrangements;
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our ongoing business and managements attention may be
disrupted or diverted by transition or integration issues and
the complexity of managing geographically or culturally diverse
enterprises;
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we may incur one-time write-offs or restructuring charges in
connection with the acquisition;
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we may acquire goodwill and other intangible assets that are
subject to amortization or impairment tests, which could result
in future charges to earnings; and
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we may not be able to realize the cost savings or other
financial benefits we anticipated.
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These factors could have a material adverse effect on our
business, financial condition and operating results.
We
need governmental approvals and permits, and we typically must
meet specified qualifications, in order to undertake our energy
efficiency projects and construct, own and operate our
small-scale renewable energy projects, and any failure to do so
would harm our business.
The design, construction and operation of our energy efficiency
and small-scale renewable energy projects require various
governmental approvals and permits, and may be subject to the
imposition of related conditions that vary by jurisdiction. In
some cases, these approvals and permits require periodic
renewal. We cannot predict whether all permits required for a
given project will be granted or whether the conditions
associated with the permits will be achievable. The denial of a
permit essential to a project or the imposition of impractical
conditions would impair our ability to develop the project. In
addition, we cannot predict whether the permits will attract
significant opposition or whether the permitting process will be
lengthened due to complexities and appeals. Delay in the review
and permitting process for a project can impair or delay our
ability to develop that project or increase the cost so
substantially that the project is no longer attractive to us. We
have experienced delays in developing our projects due to delays
in obtaining permits and may experience delays in the future. If
we were to commence construction in anticipation of obtaining
the final, non-appealable permits needed for that project, we
would be subject to the risk of being unable to complete the
project if all the permits were not obtained. If this were to
occur, we would likely lose a significant portion of our
investment in the project and could incur a loss as a result.
Further, the continued operations of our projects require
continuous compliance with permit conditions. This compliance
may require capital improvements or result in reduced
operations. Any failure to procure, maintain and comply with
necessary permits would adversely affect ongoing development,
construction and continuing operation of our projects.
In addition, the projects we perform for governmental agencies
are governed by particular qualification and contracting
regimes. Certain states require qualification with an
appropriate state agency as a precondition to performing work or
appearing as a qualified energy service provider for state,
county and local agencies within the state. For example, the
Commonwealth of Massachusetts and the states of Colorado and
Washington pre-qualify energy service providers and provide
contract documents that serve as the starting point for
negotiations with potential governmental clients. Most of the
work that we perform for the federal government is performed
under IDIQ agreements between a government agency and us or a
subsidiary. These IDIQ agreements allow us to contract with the
relevant agencies to implement energy projects, but no work may
be performed unless we and the agency agree on a task order or
delivery order governing the provision of a specific project.
The government agencies enter into contracts for specific
projects on a competitive basis. We and our subsidiaries and
affiliates are currently party to an IDIQ agreement with the
U.S. Department of Energy that expires in 2019. If we are
unable to maintain or renew our IDIQ qualification under the
U.S. Department of Energy program for ESPCs, or similar
federal or state qualification regimes, our business could be
materially harmed.
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Many
of our small-scale renewable energy projects are, and other
future projects may be, subject to or affected by U.S. federal
energy regulation or other regulations that govern the
operation, ownership and sale of the facility, or the sale of
electricity from the facility.
The Public Utility Holding Company Act of 1935, or PUHCA, and
the Federal Power Act, or FPA, regulate public utility holding
companies and their subsidiaries and place constraints on the
conduct of their business. The FPA regulates wholesale sales of
electricity and the transmission of electricity in interstate
commerce by public utilities. Under the Public Utility
Regulatory Policies Act of 1978, or PURPA, all of our current
small-scale renewable energy projects are small power
qualifying facilities (facilities meeting statutory
size, fuel and ownership requirements) that are exempt from
regulations under PUHCA, most provisions of the FPA and state
rate regulation. None of our renewable energy projects are
currently subject to rate regulation for wholesale power sales
by the Federal Energy Regulatory Commission, or FERC, under the
FPA, but certain of our projects that are under construction or
development could become subject to such regulation in the
future. Also, we may acquire interests in or develop generating
projects that are not qualifying facilities. Non-qualifying
facility projects would be fully subject to FERC corporate and
rate regulation, and would be required to obtain FERC acceptance
of their rate schedules for wholesale sales of energy, capacity
and ancillary services, which requires substantial disclosures
to and discretionary approvals from FERC. FERC may revoke or
revise an entitys authorization to make wholesale sales at
negotiated, or market-based, rates if FERC determines that we
can exercise market power in transmission or generation, create
barriers to entry or engage in abusive affiliate transactions or
market manipulation. In addition, many public utilities
(including any non-qualifying facility generator in which we may
invest) are subject to FERC reporting requirements that impose
administrative burdens and that, if violated, can expose the
company to civil penalties or other risks.
All of our wholesale electric power sales are subject to certain
market behavior rules. These rules change from time to time, by
virtue of FERC rulemaking proceedings and FERC-ordered
amendments to utilities FERC tariffs. If we are deemed to
have violated these rules, we will be subject to potential
disgorgement of profits associated with the violation
and/or
suspension or revocation of our market-based rate authority, as
well as potential criminal and civil penalties. If we were to
lose market-based rate authority for any non-qualifying facility
project we may acquire or develop in the future, we would be
required to obtain FERCs acceptance of a cost-based rate
schedule and could become subject to, among other things, the
burdensome accounting, record keeping and reporting requirements
that are imposed on public utilities with cost-based rate
schedules. This could have an adverse effect on the rates we
charge for power from our projects and our cost of regulatory
compliance.
Wholesale electric power sales are subject to increasing
regulation. The terms and conditions for power sales, and the
right to enter and remain in the wholesale electric sector, are
subject to FERC oversight. Due to major regulatory restructuring
initiatives at the federal and state levels, the
U.S. electric industry has undergone substantial changes
over the past decade. We cannot predict the future design of
wholesale power markets or the ultimate effect ongoing
regulatory changes will have on our business. Other proposals to
further regulate the sector may be made and legislative or other
attention to the electric power market restructuring process may
delay or reverse the movement towards competitive markets.
If we become subject to additional regulation under PUHCA, FPA
or other regulatory frameworks, if existing regulatory
requirements become more onerous, or if other material changes
to the regulation of the electric power markets take place, our
business, financial condition and operating results could be
adversely affected.
Compliance
with environmental laws could adversely affect our operating
results.
Costs of compliance with federal, state, provincial, local and
other foreign existing and future environmental regulations
could adversely affect our cash flow and profitability. We are
required to comply with numerous environmental laws and
regulations and to obtain numerous governmental permits in
connection with energy efficiency and renewable energy projects,
and we may incur significant additional costs to comply with
these requirements. If we fail to comply with these
requirements, we could be subject to
23
civil or criminal liability, damages and fines. Existing
environmental regulations could be revised or reinterpreted and
new laws and regulations could be adopted or become applicable
to us or our projects, and future changes in environmental laws
and regulations could occur. These factors may materially
increase the amount we must invest to bring our projects into
compliance and impose additional expense on our operations.
In addition, private lawsuits or enforcement actions by federal,
state, provincial
and/or
foreign regulatory agencies may materially increase our costs.
Certain environmental laws make us potentially liable on a joint
and several basis for the remediation of contamination at or
emanating from properties or facilities we currently or formerly
owned or operated or properties to which we arranged for the
disposal of hazardous substances. Such liability is not limited
to the cleanup of contamination we actually caused. Although we
seek to obtain indemnities against liabilities relating to
historical contamination at the facilities we own or operate, we
cannot provide any assurance that we will not incur liability
relating to the remediation of contamination, including
contamination we did not cause. For example, in 2009, a customer
for which we were performing an energy efficiency project
initiated a legal proceeding against us as a result of project
delays that we believe were attributable to the discovery of
hazardous materials and need for remediation by the customer. An
adverse outcome in this proceeding could have an adverse effect
on our operating results in the period in which the outcome is
determined.
We may not be able to obtain or maintain, from time to time, all
required environmental regulatory approvals. A delay in
obtaining any required environmental regulatory approvals or
failure to obtain and comply with them could adversely affect
our business and operating results.
International
expansion is one of our growth strategies, and international
operations will expose us to additional risks that we do not
face in the United States, which could have an adverse effect on
our operating results.
We generate a significant portion of our revenue from operations
in Canada, and although we are engaged in overseas projects for
the U.S. Department of Defense, we currently derive a small
amount of revenue from outside of North America. However,
international expansion is one of our growth strategies, and we
expect our revenue and operations outside of North America will
expand in the future. These operations will be subject to a
variety of risks that we do not face in the United States, and
that we may face only to a limited degree in Canada, including:
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building and managing highly experienced foreign workforces and
overseeing and ensuring the performance of foreign
subcontractors;
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increased travel, infrastructure and legal and compliance costs
associated with multiple international locations;
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additional withholding taxes or other taxes on our foreign
income, and tariffs or other restrictions on foreign trade or
investment;
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imposition of, or unexpected adverse changes in, foreign laws or
regulatory requirements, many of which differ from those in the
United States;
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increased exposure to foreign currency exchange rate risk;
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longer payment cycles for sales in some foreign countries and
potential difficulties in enforcing contracts and collecting
accounts receivable;
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difficulties in repatriating overseas earnings;
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general economic conditions in the countries in which we
operate; and
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political unrest, war, incidents of terrorism, or responses to
such events.
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Our overall success in international markets will depend, in
part, on our ability to succeed in differing legal, regulatory,
economic, social and political conditions. We may not be
successful in developing and implementing policies and
strategies that will be effective in managing these risks in
each country where we
24
do business. Our failure to manage these risks successfully
could harm our international operations, reduce our
international sales and increase our costs, thus adversely
affecting our business, financial condition and operating
results.
Our
insurance and contractual protections may not always cover lost
revenue, increased expenses or liquidated damages
payments.
Although we maintain insurance, obtain warranties from
suppliers, obligate subcontractors to meet certain performance
levels and attempt, where feasible, to pass risks we cannot
control to our customers, the proceeds of such insurance,
warranties, performance guarantees or risk sharing arrangements
may not be adequate to cover lost revenue, increased expenses or
liquidated damages payments that may be required in the future.
If the
cost of energy generated by traditional sources does not
increase, or if it decreases, demand for our services may
decline.
Decreases in the costs associated with traditional sources of
energy, such as prices for commodities like coal, oil and
natural gas, may reduce demand for energy efficiency and
renewable energy solutions. Technological progress in
traditional forms of electricity generation or the discovery of
large new deposits of traditional fuels could reduce the cost of
electricity generated from those sources and as a consequence
reduce the demand for our solutions. Any of these developments
could have a material adverse effect on our business, financial
condition and operating results.
We
have a material weakness in our internal control over financial
reporting. If we fail to establish and maintain proper and
effective internal controls, our ability to produce accurate
financial statements could be impaired, which could adversely
affect our operating results, our ability to operate our
business and investors and customers views of
us.
As a public company, we will become subject to a set of laws and
regulations requiring that we establish and maintain internal
control over financial reporting. Internal control over
financial reporting is defined under Securities and Exchange
Commission, or SEC, rules as a process designed by, or under the
supervision of, our principal executive and principal financial
officers and effected by our board of directors, management and
other personnel, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with
GAAP. We have not yet begun the process of documenting,
reviewing and, as appropriate, improving our internal controls
and procedures in anticipation of being a public company and
eventually becoming subject to the SEC rules concerning internal
control over financial reporting, which take effect beginning
with the filing of our second Annual Report on
Form 10-K
(which will be due in March 2012). Establishing and maintaining
adequate internal financial and accounting controls and
procedures so that we can produce accurate financial statements
on a timely basis is a costly and time-consuming effort that
needs to be re-evaluated frequently, and may distract our
officers and employees from the operation of our business.
We do not currently have personnel with an appropriate level of
knowledge, experience or training in the selection, application
and implementation of GAAP as it relates to certain complex
accounting issues, income taxes and SEC financial reporting
requirements. This constitutes a material weakness in our
internal control over financial reporting that could result in
material misstatements in our financial statements not being
prevented or detected. Although we plan to remediate this
material weakness by hiring additional personnel with the
requisite expertise, we may experience difficulties or delays in
doing so, and new employees will require time and training to
learn our business and operating processes and procedures.
If we fail to enhance and then maintain our internal control
over financial reporting, we may be unable to report our
financial results timely and accurately, and we may be less
likely to prevent fraud. In addition, such failure could
increase our operating costs, materially impair our ability to
operate our business, result in SEC investigations and penalties
and lead to the delisting of our common stock from
the .
The resulting damage to our reputation in the marketplace and
our financial credibility could significantly
25
impair our sales and marketing efforts with customers. Further,
investors perceptions that our internal controls are
inadequate or that we are unable to produce accurate financial
statements could adversely affect the market price of our
Class A common stock.
Changes
in utility regulation and tariffs could adversely affect our
business.
Our business is affected by regulations and tariffs that govern
the activities of utilities. For example, utility companies are
commonly allowed by regulatory authorities to charge fees to
larger industrial customers for disconnecting from the electric
grid or for having the capacity to use power from the electric
grid for
back-up
purposes. These fees could increase the cost to our customers of
taking advantage of our services and make them less desirable,
thereby harming our business, financial condition and operating
results. Our current generating projects are all operated as
qualifying facilities. FERC regulations under the FPA confer
upon these facilities key rights to interconnection with local
utilities, and can entitle qualifying facilities to enter into
power purchase agreements with local utilities, from which the
qualifying facilities benefit. Changes to these federal laws and
regulations could increase our regulatory burdens and costs, and
could reduce our revenue. In addition, modifications to the
pricing policies of utilities could require renewable energy
systems to achieve lower prices in order to compete with the
price of electricity from the electric grid and may reduce the
economic attractiveness of certain energy efficiency measures.
Some of the demand-reduction services we provide for utilities
and institutional clients are subject to regulatory tariffs
imposed under federal and state utility laws. In addition, the
operation of, and electrical interconnection for, our renewable
energy projects are subject to federal, state or provincial
interconnection and federal reliability standards that are also
set forth in utility tariffs. These tariffs specify rules,
business practices and economic terms to which we are subject.
The tariffs are drafted by the utilities and approved by the
utilities state and federal regulatory commissions. These
tariffs change frequently and it is possible that future changes
will increase our administrative burden or adversely affect the
terms and conditions under which we render service to our
customers.
Our
activities and operations are subject to numerous health and
safety laws and regulations, and if we violate such regulations,
we could face penalties and fines.
We are subject to numerous health and safety laws and
regulations in each of the jurisdictions in which we operate.
These laws and regulations require us to obtain and maintain
permits and approvals and implement health and safety programs
and procedures to control risks associated with our projects.
Compliance with those laws and regulations can require us to
incur substantial costs. Moreover, if our compliance programs
are not successful, we could be subject to penalties or to
revocation of our permits, which may require us to curtail or
cease operations of the affected projects. Violations of laws,
regulations and permit requirements may also result in criminal
sanctions or injunctions.
Health and safety laws, regulations and permit requirements may
change or become more stringent. Any such changes could require
us to incur materially higher costs than we currently have. Our
costs of complying with current and future health and safety
laws, regulations and permit requirements, and any liabilities,
fines or other sanctions resulting from violations of them,
could adversely affect our business, financial condition and
operating results.
Our
credit facilities and debt instruments contain financial and
operating restrictions that may limit our business activities
and our access to credit.
Provisions in our credit facilities and debt instruments impose
restrictions on our and certain of our subsidiaries
ability to, among other things:
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incur additional debt, or debt related to federal projects in
excess of specified limits;
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pay cash dividends and make distributions;
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make certain investments and acquisitions;
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guarantee the indebtedness of others or our subsidiaries;
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redeem or repurchase capital stock;
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create liens;
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enter into transactions with affiliates;
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engage in new lines of business;
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sell, lease or transfer certain parts of our business or
property;
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enter into sale-leaseback arrangements; and
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merge or consolidate.
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These agreements also contain other customary covenants,
including covenants that require us to meet specified financial
ratios and financial tests. We may not be able to comply with
these covenants in the future. Our failure to comply with these
covenants may result in the declaration of an event of default
and cause us to be unable to borrow under our credit facilities
and debt instruments. In addition to preventing additional
borrowings under these agreements, an event of default, if not
cured or waived, may result in the acceleration of the maturity
of indebtedness outstanding under these agreements, which would
require us to pay all amounts outstanding. If an event of
default occurs, we may not be able to cure it within any
applicable cure period, if at all. If the maturity of our
indebtedness is accelerated, we may not have sufficient funds
available for repayment or we may not have the ability to borrow
or obtain sufficient funds to replace the accelerated
indebtedness on terms acceptable to us or at all.
If our
subsidiaries default on their obligations under their debt
instruments, we may need to make payments to lenders to prevent
foreclosure on the collateral securing the debt.
We typically set up subsidiaries to own and finance our
renewable energy projects. These subsidiaries incur various
types of debt which can be used to finance one or more projects.
This debt is typically structured as non-recourse debt, which
means it is repayable solely from the revenue from the projects
financed by the debt and is secured by such projects
physical assets, major contracts and cash accounts and a pledge
of our equity interests in the subsidiaries involved in the
projects. Although our subsidiary debt is typically non-recourse
to Ameresco, if a subsidiary of ours defaults on such
obligations, or if one project out of several financed by a
particular subsidiarys indebtedness encounters
difficulties or is terminated, then we may from time to time
determine to provide financial support to the subsidiary in
order to maintain rights to the project or otherwise avoid the
adverse consequences of a default. In the event a subsidiary
defaults on its indebtedness, its creditors may foreclose on the
collateral securing the indebtedness, which may result in our
losing our ownership interest in some or all of the
subsidiarys assets. The loss of our ownership interest in
a subsidiary or some or all of a subsidiarys assets could
have a material adverse effect on our business, financial
condition and operating results.
We are
exposed to the credit risk of some of our
customers.
Most of our revenue is derived under multi-year or long-term
contracts with our customers, and our revenue is therefore
dependent to a large extent on the creditworthiness of our
customers. During periods of economic downturn in the global
economy, our exposure to credit risks from our customers
increases, and our efforts to monitor and mitigate the
associated risks may not be effective in reducing our credit
risks. In the event of non-payment by one or more of our
customers, our business, financial condition and operating
results could be adversely affected.
27
The
use and enjoyment of real property rights for our small-scale
renewable energy projects may be adversely affected by the
rights of lienholders and leaseholders that are superior to
those of the grantors of those real property rights to
us.
Our small-scale renewable energy projects generally are, and are
likely to continue to be, located on land we or our customers
occupy pursuant to long-term easements and leases. The ownership
interests in the land subject to these easements and leases may
be subject to mortgages securing loans or other liens (such as
tax liens) and other easement and lease rights of third parties
(such as leases of oil or mineral rights) that were created
prior to our or our customers easements and leases. As a
result, the rights under these easements or leases may be
subject, and subordinate, to the rights of those third parties.
We typically perform title searches and obtain title insurance
to protect ourselves or our customers against these risks. Such
measures may, however, be inadequate to protect against all risk
of loss of rights to use the land on which these projects are
located, which could have a material adverse effect on our
business, financial condition and operating results.
Fluctuations
in foreign currency exchange rates can impact our
results.
A significant portion of our total revenue is generated by our
Canadian subsidiary, Ameresco Canada. Changes in exchange rates
between the Canadian dollar and the U.S. dollar may
adversely affect our operating results.
The
trading price of our Class A common stock is likely to be
volatile, and you may not be able to sell your shares at or
above the initial public offering price.
Our Class A common stock has no prior trading history. The
initial public offering price for our Class A common stock
will be determined through negotiations between us and the
representatives of the underwriters. This price will not
necessarily reflect the price at which investors in the market
will be willing to buy and sell shares of our Class A
common stock following this offering. In addition, the trading
price of our Class A common stock is likely to be highly
volatile and could be subject to wide fluctuations in response
to various factors. In addition to the risks described in this
section, factors that may cause the market price of our
Class A common stock to fluctuate include:
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fluctuations in our quarterly financial results or the quarterly
financial results of companies perceived to be similar to us;
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changes in estimates of our future financial results or
recommendations by securities analysts;
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investors general perception of us; and
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changes in general economic, industry and market conditions.
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In addition, if the stock market in general experiences a
significant decline, the trading price of our Class A
common stock could decline for reasons unrelated to our
business, financial condition or operating results.
Some companies that have had volatile market prices for their
securities have had securities class actions filed against them.
If a suit were filed against us, regardless of its merits or
outcome, it would likely result in substantial costs and divert
managements attention and resources. This could have a
material adverse effect on our business, operating results and
financial condition.
Our
securities have no prior market and an active public trading
market for our Class A common stock may not
develop.
Prior to this offering, there has been no public market for
shares of our Class A common stock. Although we have
applied to list our Class A common stock on
the ,
an active public trading market for our Class A common
stock may not develop or, if it develops, may not be maintained
after this offering. For example, applicable stock market rules
impose certain securities trading requirements, including
minimum trading price, minimum number of stockholders and
minimum market capitalization. If an active public
28
trading market for our Class A common stock does not
develop or is not sustained, it may be difficult for you to sell
your shares of our Class A common stock at an attractive
price or at all.
Holders
of our Class A common stock, which is the stock we are
selling in this offering, are entitled to one vote per share,
and holders of our Class B common stock are entitled
to votes per share. The lower
voting power of our Class A common stock may negatively
affect the attractiveness of our Class A common stock to
investors and, as a result, its market value.
Upon consummation of this offering, we will have two classes of
common stock: Class A common stock, which is the stock we
are selling in this offering and which is entitled to one vote
per share, and Class B common stock, which is entitled
to votes per share. The difference
in the voting power of our Class A and Class B common
stock could diminish the market value of our Class A common
stock because of the superior voting rights of our Class B
common stock and the power those rights confer.
For
the foreseeable future, Mr. Sakellaris or his affiliates
will be able to control the selection of all members of our
board of directors, as well as virtually every other matter that
requires stockholder approval, which will severely limit the
ability of other stockholders to influence corporate
matters.
Except in certain limited circumstances required by applicable
law, holders of Class A and Class B common stock vote
together as a single class on all matters to be voted on by our
stockholders. Immediately following the completion of this
offering, Mr. Sakellaris will own all of our Class B
common stock, representing % of the
combined voting power of our outstanding Class A and
Class B common stock. Under our restated certificate of
incorporation, holders of shares of Class B common stock
may generally transfer those shares to family members, including
spouses and descendents or the spouses of such descendents, as
well as to affiliated entities, without having the shares
automatically convert into shares of Class A common stock.
Therefore, Mr. Sakellaris, his affiliates, and his family
members and descendents will, for the foreseeable future, be
able to control the outcome of the voting on virtually all
matters requiring stockholder approval, including the election
of directors and significant corporate transactions such as an
acquisition of our company, even if they come to own, in the
aggregate, as little as % of the
economic interest of the outstanding shares of our Class A
and Class B common stock. Moreover, these persons may take
actions in their own interests that you or our other
stockholders do not view as beneficial. See Principal and
Selling Stockholders and Description of Capital
Stock.
Future
sales of shares by existing stockholders could cause our stock
price to decline.
Once a trading market develops for our Class A common
stock, many of our stockholders for the first time will have an
opportunity to sell their shares, subject to the contractual
lock-up
agreements and other restrictions on resale discussed in this
prospectus. Sales by our existing stockholders of a substantial
number of shares in the public market, or the threat that
substantial sales might occur, could cause the market price of
the Class A common stock to decrease significantly. These
factors could also make it difficult for us to raise additional
capital by selling our Class A common stock. See
Shares Eligible for Future Sale for further
details regarding the number of shares eligible for sale in the
public market after this offering.
If
securities or industry analysts do not publish research or
publish inaccurate or unfavorable research about our business,
our stock price and trading volume could decline.
The trading market for our Class A common stock will depend
in part on any research reports that securities or industry
analysts publish about us or our business. After this offering,
if no securities or industry analysts initiate coverage of our
company, the trading price for our Class A common stock may
be negatively impacted. In the event securities or industry
analysts cover our company and one or more of these analysts
downgrade our stock or publish unfavorable reports about our
business, our stock price would likely decline. In addition, if
any securities or industry analysts cease coverage of our
company or fail to publish reports on us regularly, demand for
our Class A common stock could decrease, which could cause
our stock price and trading volume to decline.
29
You
will experience substantial dilution as a result of this
offering and future equity issuances.
The initial public offering price per share of our Class A
common stock is substantially higher than the pro forma net
tangible book value per share of our Class A common stock.
As a result, investors purchasing Class A common stock in
this offering will experience immediate dilution of
$ per share, at an assumed initial
public offering price of $ per
share, which is the midpoint of the range listed on the cover
page of this prospectus. In addition, we have granted options
and a warrant to acquire Class A common stock at prices
significantly below the initial public offering price. To the
extent outstanding options and the warrant are exercised, there
will be further dilution to investors in this offering. See
Dilution.
Our
management will have broad discretion over the use of the
proceeds we receive in this offering and might not apply the
proceeds in ways that increase the value of your
investment.
We expect to use a portion of the net proceeds to us from this
offering to repay the balance outstanding under our
$50 million revolving senior secured credit facility, under
which $19.9 million in principal was outstanding at of
December 31, 2009, and the $3.0 million subordinated
note held by Mr. Sakellaris. We intend to use the balance
of the net proceeds for working capital and other general
corporate purposes, which may include opening additional offices
in the United States and abroad, expanding sales and marketing
activities, funding the development and construction of our
small-scale renewable energy projects and other capital
expenditures. Our management will have broad discretion over the
use of the net proceeds from this offering, and you will be
relying on the judgment of our management regarding the
application of those net proceeds. Although it is the intention
of our management to use the net proceeds from the offering in
the best interests of the company, our management might not
apply the net proceeds from this offering in ways that increase
the value of your investment or in ways with which you agree.
See Use of Proceeds.
We do
not anticipate paying any cash dividends on our capital stock in
the foreseeable future.
We have never declared or paid any cash dividends on our capital
stock and do not currently expect to pay any cash dividends for
the foreseeable future. Our revolving senior secured credit
facility with Bank of America limits our ability to declare and
pay cash dividends during the term of that agreement. See
Dividend Policy. We intend to use our future
earnings, if any, in the operation and expansion of our
business. Accordingly, you are not likely to receive any
dividends on your Class A common stock for the foreseeable
future, and your ability to achieve a return on your investment
will therefore depend on appreciation in the market price of our
Class A common stock.
Anti-takeover
provisions in our charter documents and Delaware law could
discourage, delay or prevent a change in control of our company
and may affect the trading price of our Class A common
stock.
We are a Delaware corporation and the anti-takeover provisions
of the Delaware General Corporation Law may discourage, delay or
prevent an acquisition of our company by prohibiting us from
engaging in a business combination with an interested
stockholder for a period of three years after the person becomes
an interested stockholder, even if a change in control would be
supported by our existing stockholders. In addition, our
restated certificate of incorporation and by-laws may
discourage, delay or prevent an acquisition or a change in our
management that stockholders may consider favorable. Our
restated certificate of incorporation and by-laws, which will be
in effect upon the closing of this offering:
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provide for a dual class capital structure that allows our
founder, principal stockholder, president and chief executive
officer, George P. Sakellaris, to control the outcome of the
voting on virtually all matters requiring stockholder approval,
including the election of directors and significant corporate
transactions such as an acquisition of our company;
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authorize the issuance of blank check preferred
stock that could be issued by our board of directors to thwart a
takeover attempt;
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establish a classified board of directors, as a result of which
only approximately one-third of our directors are presented to a
stockholder vote for re-election at any annual meeting of
stockholders;
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provide that directors may be removed from office only for cause
and only upon a supermajority stockholder vote;
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provide that vacancies on our board of directors, including
newly created directorships, may be filled only by a majority
vote of directors then in office;
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do not permit stockholders to call special meetings of
stockholders;
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prohibit stockholder action by written consent, requiring all
actions to be taken at a meeting of the stockholders;
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establish advance notice requirements for nominations for
election to our board of directors or for proposing matters that
can be acted upon by stockholders at stockholder
meetings; and
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require a supermajority stockholder vote to effect certain
amendments to our restated certificate of incorporation and
by-laws.
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For additional information regarding these and other
anti-takeover provisions, see Description of Capital
Stock Anti-Takeover Effects of Delaware Law and Our
Restated Certificate of Incorporation and By-Laws.
31
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. All
statements other than statements of historical facts contained
in this prospectus, including statements regarding our strategy,
future operations, future financial position, future revenue,
projected costs, prospects, plans, objectives of management and
expected market growth are forward-looking statements. These
statements involve known and unknown risks, uncertainties and
other important factors that may cause our actual results,
performance or achievements to be materially different from any
future results, performance or achievements expressed or implied
by the forward-looking statements.
The words anticipate, believe,
estimate, expect, intend,
may, plan, predict,
project, will, would and
similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words. These forward-looking statements
include, among other things, statements about:
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our expectations as to the future growth of our business;
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the expected future growth of the market for energy efficiency
and renewable energy solutions;
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our backlog, awarded projects and recurring revenue;
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the expected energy and cost savings of our projects; and
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the expected energy production capacity of our renewable energy
plants.
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These forward looking statements are only predictions and we may
not actually achieve the plans, intentions or expectations
disclosed in our forward-looking statements, so you should not
place undue reliance on our forward-looking statements. Actual
results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking
statements we make. We have based these forward-looking
statements largely on our current expectations and projections
about future events and trends that we believe may affect our
business, financial condition and operating results. We have
included important factors in the cautionary statements included
in this prospectus, particularly in the Risk Factors
section, that could cause actual future results or events to
differ materially from the forward-looking statements that we
make. Our forward-looking statements do not reflect the
potential impact of any future acquisitions, mergers,
dispositions, joint ventures or investments we may make.
The forward-looking statements in this prospectus represent our
views as of the date of this prospectus. We anticipate that
subsequent events and developments will cause our views to
change. However, while we may elect to update these
forward-looking statements at some point in the future, we have
no current intention of doing so except to the extent required
by applicable law. You should, therefore, not rely on these
forward-looking statements as representing our views as of any
date subsequent to the date of this prospectus.
This prospectus also contains estimates and other statistical
data made by independent parties and by us relating to market
size and growth and other data about our industry. We obtained
the industry and market data in this prospectus from our own
research as well as from industry and general publications,
surveys and studies conducted by third parties. This data
involves a number of assumptions and limitations and contains
projections and estimates of the future performance of the
industries in which we operate that are subject to a high degree
of uncertainty. We caution you not to give undue weight to such
projections, assumptions and estimates. Further, industry and
general publications, studies and surveys generally state that
they have been obtained from sources believed to be reliable,
although they do not guarantee the accuracy or completeness of
such information. While we believe that these publications,
studies and surveys are reliable, we have not independently
verified the data contained in them. In addition, while we
believe that the results and estimates from our internal
research are reliable, such results and estimates have not been
verified by any independent source.
32
USE OF
PROCEEDS
We estimate that we will receive net proceeds from this offering
of approximately $ million,
based on an assumed initial public offering price of
$ per share, which is the midpoint
of the estimated price range shown on the cover of this
prospectus, and after deducting the estimated underwriting
discount and estimated offering expenses payable by us. At an
assumed initial public offering price of
$ per share, the selling
stockholders will receive
$ million from their sale of
our Class A common stock in this offering, after deducting
the estimated underwriting discount. We will not receive any
proceeds from the sale of shares by the selling stockholders.
A $1.00 increase (decrease) in the assumed initial public
offering price of $ would increase
(decrease) the net proceeds to us from this offering by
$ million, assuming the
number of shares offered by us, as set forth on the cover of
this prospectus, remains the same.
We intend to use the net proceeds we receive from this offering
as follows:
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to repay the outstanding balance under our $50 million
revolving senior secured credit facility ($19.9 million
outstanding as of December 31, 2009), which as of
December 31, 2009 bears interest at a weighted-average rate
of 3.34% per annum and matures on June 30, 2011;
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approximately $3.0 million to repay the subordinated note
held by Mr. Sakellaris, which currently bears interest at
10.0% per annum and is payable on demand; and
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|
the balance for working capital and other general corporate
purposes, which may include opening additional offices in the
United States and abroad, expanding sales and marketing
activities, funding the development and construction of our
small-scale renewable energy projects and other capital
expenditures.
|
We may use a portion of the net proceeds that we receive from
this offering to expand our current business through
acquisitions of complementary companies, assets or technologies.
We currently have no understandings, commitments or agreements
to make any acquisitions.
Pending specific utilization of the net proceeds as described
above, we intend to invest the net proceeds of the offering in
short-term investment grade and U.S. government securities.
Bank of America, N.A., an affiliate of Merrill, Lynch, Pierce,
Fenner & Smith Incorporated, an underwriter of this
offering, is acting as the agent and a lender under our
revolving senior secured credit facility. See
Underwriting Conflicts of Interest.
33
DIVIDEND
POLICY
We have never declared or paid any cash dividends on our capital
stock. We currently intend to retain earnings, if any, to
finance the growth and development of our business and do not
expect to pay any cash dividends for the foreseeable future. Our
revolving senior secured credit facility with Bank of America
contains provisions that limit our ability to declare and pay
cash dividends during the term of that agreement. Payment of
future dividends, if any, will be at the discretion of our board
of directors and will depend on our financial condition, results
of operations, capital requirements, restrictions contained in
current or future financing instruments, provisions of
applicable law, and other factors our board of directors deems
relevant.
34
CAPITALIZATION
The following table sets forth our cash and cash equivalents and
capitalization as of December 31, 2009:
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on an actual basis;
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on a pro forma basis to reflect (1) the reclassification of
all outstanding shares of our common stock as Class A
common stock, (2) the election by all holders of our
convertible preferred stock, other than Mr. Sakellaris, to
convert all of their shares of our convertible preferred stock
into shares of our Class A common stock and (3) the
conversion of all outstanding shares of our convertible
preferred stock into shares of our Class B common
stock; and
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|
on a pro forma as adjusted basis to reflect, in addition, the
sale
of shares
of our Class A common stock offered by us at an assumed
initial public offering price of $
per share, the midpoint of the estimated price range shown on
the cover page of this prospectus and after deducting the
estimated underwriting discount and estimated offering expenses
payable by us, including the sale of shares of our Class A
common stock by the selling stockholders.
|
You should read this table together with our consolidated
financial statements and the related notes appearing at the end
of this prospectus and the Managements Discussion
and Analysis of Financial Condition and Results of
Operations section of this prospectus.
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December 31, 2009
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|
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Pro Forma
|
|
|
|
Actual
|
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|
Pro Forma
|
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as Adjusted
|
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(Unaudited)
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(In thousands, except share and per share amounts)
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Cash and cash equivalents
|
|
$
|
47,928
|
|
|
$
|
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$
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|
|
|
|
|
|
|
|
|
|
|
|
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Long-term debt, including current portion
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110,900
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|
|
|
|
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|
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Subordinated debt
|
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|
2,999
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|
|
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|
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Stockholders equity:
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|
|
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|
|
|
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Series A convertible preferred stock, par value $0.0001 per
share; 3,500,000 shares authorized, 3,210,000 shares
issued and outstanding, actual; no shares authorized, issued or
outstanding, pro forma and pro forma as adjusted
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0
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Common stock, par value $0.0001 per share;
30,000,000 shares authorized, 8,999,084 shares issued
and 6,641,142 outstanding, actual; no shares authorized, issued
or outstanding, pro forma and pro forma as adjusted
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1
|
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Class A common stock, par value $0.0001 per share; no
shares authorized, issued or outstanding,
actual; shares
authorized, no shares issued or outstanding, pro
forma; shares
authorized, shares
issued and outstanding, pro forma as adjusted
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|
|
|
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Class B common stock, par value $0.0001 per share; no
shares authorized, issued or outstanding,
actual; shares
authorized, 9,000,000 shares issued and outstanding, pro
forma; shares
authorized, 9,000,000 shares issued and outstanding, pro
forma as adjusted
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Preferred stock, par value $0.0001 per
share; shares
authorized, no shares issued or outstanding, actual, pro forma
and pro forma as adjusted
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|
|
|
|
|
|
|
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Additional paid-in capital
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10,467
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|
|
|
|
|
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Retained earnings
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97,883
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Accumulated other comprehensive income (loss)
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2,832
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Treasury stock, 2,357,942 shares, at cost
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(8,414
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)
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|
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|
|
|
|
|
|
|
|
|
|
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Total stockholders equity
|
|
|
102,770
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|
|
|
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|
|
|
|
|
|
|
|
|
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|
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|
|
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Total capitalization
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$
|
216,669
|
|
|
$
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|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
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35
A $1.00 increase (decrease) in the assumed initial public
offering price of $ would increase
(decrease) each of additional paid-in capital and total
stockholders equity in the pro forma as adjusted column by
$ million, assuming the
number of shares of our Class A common stock offered by us,
as set forth on the cover of this prospectus, remains the same.
The table above excludes:
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202,643 shares of our Class A common stock issuable
upon the exercise of a warrant outstanding and exercisable as of
December 31, 2009 at an exercise price of $0.01 per share,
which will remain outstanding after this offering if not
exercised prior to this offering;
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4,725,100 shares of our Class A common stock issuable
upon the exercise of stock options outstanding as of
December 31, 2009 at a weighted-average exercise price of
$5.36 per share; and
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shares
of our Class A common stock that will be available for
future issuance under our 2010 stock plan, which will become
effective upon the closing of this offering.
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36
DILUTION
If you invest in our Class A common stock in this offering,
your interest in our company will be diluted immediately to the
extent of the difference between the initial public offering
price per share of our Class A common stock and the pro
forma as adjusted net tangible book value per share of our
Class A and Class B common stock after this offering.
Our pro forma net tangible book value as of December 31,
2009 was $ million, or
$ per share of our Class A
and Class B common stock. Our pro forma net tangible book
value per share set forth below represents our total tangible
assets less total liabilities and convertible preferred stock,
divided by the number of shares of our Class A and
Class B common stock outstanding on December 31, 2009,
after giving effect to (i) the reclassification of all
outstanding shares of our common stock as Class A common
stock, (ii) the election by all holders of our convertible
preferred stock, other than Mr. Sakellaris, to convert all
of their shares of our convertible preferred stock into shares
of our Class A common stock and (iii) the conversion
of all outstanding shares of our convertible preferred stock
into shares of our Class B common stock.
After giving effect to our issuance and sale
of shares
of Class A common stock in this offering at an assumed
initial public offering price of $
per share, the midpoint of the estimated price range shown on
the cover of this prospectus, and after deducting the estimated
underwriting discount and estimated offering expenses payable by
us, the pro forma as adjusted net tangible book value as of
December 31, 2009 would have been
$ million, or
$ per share of Class A and
Class B common stock. This represents an immediate increase
in net tangible book value to existing stockholders of
$ per share of Class A and
Class B common stock. New investors who purchase shares of
Class A common stock in this offering will suffer an
immediate dilution of their investment of
$ per share. Dilution per share to
new investors is determined by subtracting the pro forma as
adjusted net tangible book value per share of our Class A
and Class B common stock after this offering from the
initial public offering price per share of our Class A
common stock paid by a new investor. The following table
illustrates this per share dilution to new investors purchasing
shares of Class A common stock in this offering:
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Assumed initial public offering price per share
|
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|
|
|
$
|
|
|
Pro forma net tangible book value per share of Class A and
Class B common stock as of December 31, 2009
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|
|
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|
Increase in pro forma net tangible book value per share
attributable to new investors
|
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|
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Pro forma as adjusted net tangible book value per share after
the offering
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|
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Dilution per share to new investors in Class A common stock
|
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$
|
|
|
|
|
|
|
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|
A $1.00 increase (decrease) in the assumed initial public
offering price of $ per share of
Class A common stock would increase (decrease) our net
tangible book value by $ per share
of Class A and Class B common stock and increase
(decrease) the dilution in net tangible book value per share to
investors in this offering by $
per share, assuming that the number of shares of Class A
common stock offered by us, as set forth on the cover page of
this prospectus, remains the same.
If the underwriters exercise their over-allotment option in
full, the pro forma as adjusted net tangible book value will
increase to $ per share of
Class A and Class B common stock, representing an
immediate increase in net tangible book value to existing
stockholders of $ per share of
Class A and Class B common stock and an immediate
dilution of $ per share of
Class A common stock to new investors. If any shares of our
Class B common stock are issued upon exercise of
outstanding options or warrants, new investors will experience
further dilution (see below in this section for additional
information).
The following table summarizes, on a pro forma basis as of
December 31, 2009 (giving effect to the reclassification of
all outstanding shares of our common stock as Class A
common stock, the election by all holders of our convertible
preferred stock, other than Mr. Sakellaris, to convert all
of their shares of our convertible preferred stock into shares
of our Class A common stock and the conversion of all
outstanding convertible preferred stock into Class B common
stock) the differences between the number of shares of
37
common stock purchased from us, the total consideration paid to
us, and the average price per share paid by existing
stockholders and by new investors purchasing shares of our
Class A common stock in this offering. The calculation
below is based on an assumed initial public offering price of
$ per share, the midpoint of the
estimated price range shown on the cover of this prospectus,
before the deduction of the estimated underwriting discount and
estimated offering expenses payable by us.
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|
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|
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|
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|
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Shares Purchased
|
|
|
Total Consideration
|
|
|
Average Price
|
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|
Number
|
|
|
%
|
|
|
Amount
|
|
|
%
|
|
|
Per Share
|
|
|
Existing stockholders
|
|
|
16,271,142
|
|
|
|
|
%
|
|
$
|
2,054,832
|
|
|
|
|
%
|
|
$
|
0.13
|
|
New investors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
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|
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Total
|
|
|
|
|
|
|
100
|
%
|
|
$
|
|
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
The number of shares of common stock purchased from us prior to
this offering by existing stockholders is based on
7,271,142 shares of our Class A common stock and
9,000,000 shares of our Class B common stock
outstanding as of December 31, 2009 after giving effect to
(i) the reclassification of all outstanding shares of our
common stock as Class A common stock, (ii) the
election by all holders of our convertible preferred stock,
other than Mr. Sakellaris, to convert all of their shares
of our convertible preferred stock into shares of our
Class A common stock and (iii) the conversion of all
outstanding shares of our convertible preferred stock into
shares of Class B common stock, and excludes:
|
|
|
|
|
202,643 shares of Class A common stock issuable upon
the exercise of a warrant outstanding and exercisable as of
December 31, 2009 at an exercise price of $0.01 per share,
which will remain outstanding after this offering if not
exercised prior to this offering;
|
|
|
|
4,725,100 shares of Class A common stock issuable upon
the exercise of stock options outstanding as of
December 31, 2009 at a weighted-average exercise price of
$5.36 per share; and
|
|
|
|
shares
of our Class A common stock that will be available for
future issuance under our 2010 stock plan, which will become
effective upon the closing of this offering.
|
To the extent that the warrant or any of the outstanding options
are exercised, there will be further dilution to new investors.
To the extent the warrant and all of such outstanding options
had been exercised as of December 31, 2009, the pro forma
net tangible book value of our Class A and Class B
common stock would be $ per share,
the pro forma as adjusted net tangible book value of our
Class A and Class B common stock after this offering
would be $ per share, and total
dilution to new investors in shares of Class A common stock
would be $ per share. If the
warrant and all options outstanding as of December 31, 2009
had been exercised in full, new investors would have
contributed % of the total
consideration paid for our Class A and Class B common
stock outstanding but would own
only % of our Class A and
Class B common stock outstanding after the offering.
If the underwriters exercise their over-allotment option in
full, the number of shares held by new investors will increase
to ,
or % of the total number of shares
of our Class A and Class B common stock outstanding
after this offering.
The sale
of shares
of Class A common stock to be sold by the selling
stockholders in this offering will reduce the number of shares
held by existing stockholders
to ,
or % of the total shares of our
Class A and Class B common stock outstanding, and will
increase the number of shares held by new investors
to ,
or % of the total shares of our
Class A and Class B common stock outstanding. If the
underwriters exercise their over-allotment option in full, the
shares held by existing stockholders will further decrease
to ,
or % of the total shares of our
Class A and Class B common stock outstanding, and the
number of shares held by new investors will further increase
to ,
or % of the total shares of our
Class A and Class B common stock outstanding.
38
SELECTED
CONSOLIDATED FINANCIAL DATA
The following tables summarize our consolidated financial data
for the periods presented. You should read the following
selected consolidated financial data in conjunction with our
consolidated financial statements and the related notes
appearing at the end of this prospectus and the
Managements Discussion and Analysis of Financial
Condition and Results of Operations section of this
prospectus.
We derived the consolidated statement of income data for the
fiscal years ended December 31, 2007, 2008 and 2009, and
the consolidated balance sheet data as of December 31, 2008
and 2009, from our audited consolidated financial statements
that are included in this prospectus. We derived the
consolidated statement of income data for the fiscal years ended
December 31, 2005 and 2006, and the consolidated balance
sheet data as of December 31, 2005, 2006 and 2007, from our
audited consolidated financial statements that are not included
in this prospectus. Our historical results for any prior period
are not necessarily indicative of results to be expected for any
future period.
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
|
(In thousands, except share and per share data)
|
|
|
Consolidated Statement of Income Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Energy efficiency revenue
|
|
$
|
248,759
|
|
|
$
|
264,477
|
|
|
$
|
345,936
|
|
|
$
|
325,032
|
|
|
$
|
340,635
|
|
Renewable energy revenue
|
|
|
10,970
|
|
|
|
13,445
|
|
|
|
32,541
|
|
|
|
70,822
|
|
|
|
87,881
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
259,729
|
|
|
|
277,922
|
|
|
|
378,477
|
|
|
|
395,854
|
|
|
|
428,517
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Direct expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Energy efficiency expenses
|
|
|
202,573
|
|
|
|
215,320
|
|
|
|
285,966
|
|
|
|
259,019
|
|
|
|
282,345
|
|
Renewable energy expenses
|
|
|
9,503
|
|
|
|
9,500
|
|
|
|
26,072
|
|
|
|
59,551
|
|
|
|
66,472
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
212,076
|
|
|
|
224,820
|
|
|
|
312,038
|
|
|
|
318,570
|
|
|
|
348,817
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
47,653
|
|
|
|
53,102
|
|
|
|
66,439
|
|
|
|
77,284
|
|
|
|
79,700
|
|
Operating expenses
|
|
|
32,637
|
|
|
|
37,307
|
|
|
|
47,042
|
|
|
|
52,608
|
|
|
|
54,406
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
15,016
|
|
|
|
15,795
|
|
|
|
19,397
|
|
|
|
24,676
|
|
|
|
25,294
|
|
Other (expense) income, net
|
|
|
(1,577
|
)
|
|
|
(1,842
|
)
|
|
|
(3,138
|
)
|
|
|
(5,188
|
)
|
|
|
1,563
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before provision for income taxes
|
|
|
13,439
|
|
|
|
13,953
|
|
|
|
16,259
|
|
|
|
19,488
|
|
|
|
26,857
|
|
Income tax provision
|
|
|
(1,223
|
)
|
|
|
(4,337
|
)
|
|
|
(5,714
|
)
|
|
|
(1,215
|
)
|
|
|
(6,950
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
12,216
|
|
|
$
|
9,615
|
|
|
$
|
10,545
|
|
|
$
|
18,273
|
|
|
$
|
19,907
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per share attributable to common shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
2.15
|
|
|
$
|
1.66
|
|
|
$
|
1.90
|
|
|
$
|
3.42
|
|
|
$
|
3.98
|
|
Diluted
|
|
$
|
0.71
|
|
|
$
|
0.53
|
|
|
$
|
0.60
|
|
|
$
|
1.09
|
|
|
$
|
1.25
|
|
Weighted-average number of common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
5,694,396
|
|
|
|
5,787,894
|
|
|
|
5,560,511
|
|
|
|
5,339,055
|
|
|
|
4,995,956
|
|
Diluted
|
|
|
17,093,088
|
|
|
|
18,159,840
|
|
|
|
17,698,569
|
|
|
|
16,789,954
|
|
|
|
15,964,317
|
|
Other Operating Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA(1)
|
|
$
|
18,254
|
|
|
$
|
19,928
|
|
|
$
|
27,975
|
|
|
$
|
29,045
|
|
|
$
|
35,097
|
|
39
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
|
2005
|
|
2006
|
|
2007
|
|
2008
|
|
2009
|
|
|
(In thousands)
|
|
Consolidated Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
11,790
|
|
|
$
|
45,454
|
|
|
$
|
40,892
|
|
|
$
|
18,149
|
|
|
$
|
47,928
|
|
Current assets
|
|
|
89,425
|
|
|
|
140,335
|
|
|
|
154,036
|
|
|
|
131,432
|
|
|
|
171,772
|
|
Total assets
|
|
|
170,050
|
|
|
|
268,750
|
|
|
|
262,224
|
|
|
|
292,027
|
|
|
|
375,545
|
|
Current liabilities
|
|
|
53,730
|
|
|
|
91,304
|
|
|
|
108,011
|
|
|
|
90,967
|
|
|
|
132,330
|
|
Long-term debt, less current portion
|
|
|
47,771
|
|
|
|
74,529
|
|
|
|
39,316
|
|
|
|
90,980
|
|
|
|
102,807
|
|
Subordinated debt
|
|
|
2,999
|
|
|
|
2,999
|
|
|
|
2,999
|
|
|
|
2,999
|
|
|
|
2,999
|
|
Total stockholders equity
|
|
|
46,888
|
|
|
|
56,963
|
|
|
|
70,776
|
|
|
|
74,086
|
|
|
|
102,770
|
|
|
|
|
(1)
|
|
We define adjusted EBITDA as operating income before
depreciation and amortization expense, share-based compensation
expense and a non-recurring non-cash recovery of a contingency
in 2008. Adjusted EBITDA is a non-GAAP financial measure and
should not be considered as an alternative to operating income
or any other measure of financial performance calculated and
presented in accordance with GAAP.
|
We believe adjusted EBITDA is useful to investors in evaluating
our operating performance for the following reasons:
|
|
|
|
|
adjusted EBITDA and similar non-GAAP measures are widely used by
investors to measure a companys operating performance
without regard to items that can vary substantially from company
to company depending upon financing and accounting methods, book
values of assets, capital structures and the methods by which
assets were acquired;
|
|
|
|
securities analysts often use adjusted EBITDA and similar
non-GAAP measures as supplemental measures to evaluate the
overall operating performance of companies; and
|
|
|
|
by comparing our adjusted EBITDA in different historical
periods, our investors can evaluate our operating results
without the additional variations of depreciation and
amortization expense, stock-based compensation expense and the
non-recurring non-cash recovery of a contingency in 2008.
|
Our management uses adjusted EBITDA:
|
|
|
|
|
as a measure of operating performance, because it does not
include the impact of items that we do not consider indicative
of our core operating performance;
|
|
|
|
for planning purposes, including the preparation of our annual
operating budget;
|
|
|
|
to allocate resources to enhance the financial performance of
our business;
|
|
|
|
to evaluate the effectiveness of our business
strategies; and
|
|
|
|
in communications with our board of directors and investors
concerning our financial performance.
|
We understand that, although measures similar to adjusted EBITDA
are frequently used by investors and securities analysts in
their evaluation of companies, adjusted EBITDA has limitations
as an analytical tool, and you should not consider it in
isolation or as a substitute for analysis of our results of
operations as reported under GAAP. Some of these limitations are:
|
|
|
|
|
adjusted EBITDA does not reflect our cash expenditures or future
requirements for capital expenditures or other contractual
commitments;
|
|
|
|
adjusted EBITDA does not reflect changes in, or cash
requirements for, our working capital needs;
|
|
|
|
adjusted EBITDA does not reflect stock-based compensation
expense;
|
40
|
|
|
|
|
adjusted EBITDA does not reflect cash requirements for income
taxes;
|
|
|
|
adjusted EBITDA does not reflect net interest income (expense);
|
|
|
|
although depreciation and amortization are non-cash charges, the
assets being depreciated or amortized will often have to be
replaced in the future, and adjusted EBITDA does not reflect any
cash requirements for these replacements; and
|
|
|
|
other companies in our industry may calculate adjusted EBITDA
differently than we do, limiting its usefulness as a comparative
measure.
|
To properly and prudently evaluate our business, we encourage
you to review the GAAP financial statements included elsewhere
in this prospectus, and not to rely on any single financial
measure to evaluate our business.
The following table presents a reconciliation of adjusted EBITDA
to operating income, the most comparable GAAP measure:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
|
(In thousands)
|
|
|
Operating income
|
|
$
|
15,016
|
|
|
$
|
15,795
|
|
|
$
|
19,397
|
|
|
$
|
24,676
|
|
|
$
|
25,294
|
|
Depreciation and impairment
|
|
|
3,238
|
|
|
|
3,538
|
|
|
|
5,898
|
|
|
|
7,278
|
|
|
|
6,634
|
|
Stock-based compensation
|
|
|
|
|
|
|
596
|
|
|
|
2,679
|
|
|
|
2,941
|
|
|
|
3,169
|
|
Recovery of contingency
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,850
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
|
$
|
18,254
|
|
|
$
|
19,928
|
|
|
$
|
27,975
|
|
|
$
|
29,045
|
|
|
$
|
35,097
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41
MANAGEMENTS
DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of our
financial condition and results of operations together with our
consolidated financial statements and the related notes and
other financial information included elsewhere in this
prospectus. Some of the information contained in this discussion
and analysis or set forth elsewhere in this prospectus,
including information with respect to our plans and strategy for
our business and related financing, includes forward-looking
statements that involve risks and uncertainties. You should
review the Risk Factors section of this prospectus
for a discussion of important factors that could cause actual
results to differ materially from the results described in or
implied by the forward-looking statements contained in the
following discussion and analysis.
Overview
Ameresco is a leading provider of energy efficiency solutions
for facilities throughout North America. We operate in one
business segment providing solutions that enable
customers to reduce their energy consumption, lower their
operating and maintenance costs and realize environmental
benefits. Our comprehensive set of services includes upgrades to
a facilitys energy infrastructure and the construction and
operation of small-scale renewable energy plants.
Our revenue has increased from $20.9 million in 2001, our
first full year of operations, to $428.5 million in 2009.
We achieved profitability in 2002, and we have been profitable
every year since then.
In addition to organic growth, strategic acquisitions of
complementary businesses and assets have been an important part
of our development. Since inception, we have completed more than
ten acquisitions, which have enabled us to broaden our service
offerings and expand our geographical reach. Our acquisition of
the energy services business of Duke Energy in 2002 expanded our
geographical reach into Canada and the southeastern United
States and enabled us to penetrate the federal government market
for energy efficiency projects. The acquisition of the energy
services business of Exelon in 2004 expanded our geographical
reach into the Midwest. Our acquisition of the energy services
business of Northeast Utilities in 2006 substantially grew our
capability to provide services for the federal market and in
Europe. Our acquisition of Southwestern Photovoltaics, Inc. in
2007 significantly expanded our offering of solar energy
products and services.
Energy
Savings Performance and Energy Supply Contracts
For our energy efficiency projects, we typically enter into
ESPCs under which we agree to develop, design, engineer and
construct a project and also commit that the project will
satisfy
agreed-upon
performance standards that vary from project to project. These
performance commitments are typically based on the design,
capacity, efficiency or operation of the specific equipment and
systems we install. Our commitments generally fall into three
categories: pre-agreed, equipment-level and whole
building-level. Under a pre-agreed energy reduction commitment,
our customer reviews the project design in advance and agrees
that, upon or shortly after completion of installation of the
specified equipment comprising the project, the commitment will
have been met. Under an equipment-level commitment, we commit to
a level of energy use reduction based on the difference in use
measured first with the existing equipment and then with the
replacement equipment. A whole building-level commitment
requires demonstration of energy usage reduction for a whole
building, often based on readings of the utility meter where
usage is measured. Depending on the project, the measurement and
demonstration may be required only once, upon installation,
based on an analysis of one or more sample installations, or may
be required to be repeated at agreed upon intervals generally
over up to 20 years.
Under our contracts, we typically do not take responsibility for
a wide variety of factors outside our control and exclude or
adjust for such factors in commitment calculations. These
factors include variations in energy prices and utility rates,
weather, facility occupancy schedules, the amount of
energy-using equipment in a facility, and failure of the
customer to operate or maintain the project properly. Typically,
our performance commitments apply to the aggregate overall
performance of a project rather than to individual energy
efficiency measures. Therefore, to the extent an individual
measure underperforms, it may be offset by other measures that
overperform. In the event that an energy efficiency project does
not perform according to the
42
agreed-upon
specifications, our agreements typically allow us to satisfy our
obligation by adjusting or modifying the installed equipment,
installing additional measures to provide substitute energy
savings, or paying the customer for lost energy savings based on
the assumed conditions specified in the agreement. Many of our
equipment supply, local design, and installation subcontracts
contain provisions that enable us to seek recourse against our
vendors or subcontractors if there is a deficiency in our energy
reduction commitment. From our inception to December 31,
2009, our total payments to customers and incurred equipment
replacement and maintenance costs under our energy reduction
commitments, after customer acceptance of a project, have been
less than $100,000 in the aggregate. See Risk
Factors We may have liability to our customers under
our ESPCs if our projects fail to deliver the energy use
reductions to which we are committed under the contract.
Payments by the federal government for energy efficiency
measures are based on the services provided and the products
installed, but are limited to the savings derived from such
measures, calculated in accordance with federal regulatory
guidelines and the specific contracts terms. The savings
are typically determined by comparing energy use and other costs
before and after the installation of the energy efficiency
measures, adjusted for changes that affect energy use and other
costs but are not caused by the energy efficiency measures.
For projects involving the construction of a small-scale
renewable energy plant that we own and operate, we enter into
long-term contracts to supply the electricity, processed LFG,
heat or cooling generated by the plant to the customer, which is
typically a utility, municipality, industrial facility or other
large purchaser of energy. The rights to use the site for the
plant and purchase of renewable fuel for the plant are also
obtained by us under long-term agreements with terms at least as
long as the associated output supply agreement. Our supply
agreements typically provide for fixed prices or prices that
escalate at a fixed rate or vary based on a market benchmark.
See Risk Factors We may assume responsibility
under customer contracts for factors outside our control,
including, in connection with some customer projects, the risk
that fuel prices will increase.
Project
Financing
To finance projects with federal governmental agencies, we
typically sell to the lenders our right to receive a portion of
the long-term payments from the customer arising out of the
project for a purchase price reflecting a discount to the
aggregate amount due from the customer. The purchase price is
generally advanced to us over the implementation period based on
completed work or a schedule predetermined to coincide with the
construction of the project. Under the terms of these financing
arrangements, we are required to complete the construction or
installation of the project in accordance with the contract with
our customer, and the debt remains on our consolidated balance
sheet until the completed project is accepted by the customer.
Once the completed project is accepted by the customer, the
financing is treated as a true sale and the related receivable
and financing liability are removed from our consolidated
balance sheet.
Institutional customers, such as state and local governments,
schools and public housing authorities, typically finance their
energy efficiency and renewable energy projects through either
tax-exempt leases or issuances of municipal bonds. We assist in
the structuring of such third-party financing.
In some instances, customers prefer that we retain ownership of
the renewable energy plants and related project assets that we
construct for them. In these projects, we typically enter into a
long-term supply agreement to furnish electricity, gas, heat or
cooling to the customers facility. To finance the
significant upfront capital costs required to develop and
construct the plant, we rely either on our internal cash flow
or, in some cases, third-party debt. For project financing by
third-party lenders, we typically establish a separate
subsidiary, usually a limited liability company, to own the
project assets and related contracts. The subsidiary contracts
with us for construction and operation of the project and enters
into a financing agreement directly with the lenders.
Additionally, we will provide assurance to the lender that the
project will achieve commercial operation. Although the
financing is secured by the assets of the subsidiary and a
pledge of our equity interests in the subsidiary, and is
non-recourse to Ameresco, we may from time to time determine to
provide financial support to the subsidiary in order to maintain
rights to the project or otherwise avoid the adverse
consequences of a default. The amount of such financing is
included on our consolidated balance sheet.
43
In addition to project-related debt, we currently maintain a
$50 million revolving senior secured credit facility with a
commercial bank to finance our working capital needs.
Effects
of Seasonality
We are subject to seasonal fluctuations and construction cycles,
particularly in climates that experience colder weather during
the winter months, such as the northern United States and
Canada, or at educational institutions, where large projects are
typically carried out during summer months when their facilities
are unoccupied. In addition, government customers, many of which
have fiscal years that do not coincide with ours, typically
follow annual procurement cycles and appropriate funds on a
fiscal-year basis even though contract performance may take more
than one year. Further, government contracting cycles can be
affected by the timing of, and delays in, the legislative
process related to government programs and incentives that help
drive demand for energy efficiency and renewable energy
projects. As a result, our revenue and operating income in the
third quarter are typically higher, and our revenue and
operating income in the first quarter are typically lower, than
in other quarters of the year. As a result of such fluctuations,
we may occasionally experience declines in revenue or earnings
as compared to the immediately preceding quarter, and
comparisons of our operating results on a
period-to-period
basis may not be meaningful.
Our annual and quarterly financial results are also subject to
significant fluctuations as a result of other factors, many of
which are outside our control. See Risk
Factors Our operating results may fluctuate
significantly from quarter to quarter and may fall below
expectations in any particular fiscal quarter.
Backlog
and Awarded Projects
As of December 31, 2009, we had backlog of approximately
$590 million in future revenue under signed customer
contracts for the installation or construction of projects,
which we expect to be recognized over the period from 2010 to
2013, and we had been awarded, but not yet signed customer
contracts for, projects with estimated total future revenue of
an additional $700 million. We also expect to realize
recurring revenue both under long-term O&M contracts and
under energy supply contracts for renewable energy plants that
we own. See Risk Factors We may not recognize
all revenue from our backlog or receive all payments anticipated
under awarded projects and customer contracts.
Financial
Operations Overview
Revenue
We derive revenue from energy efficiency and renewable energy
products and services. Our energy efficiency products and
services include the design, engineering and installation of
equipment and other measures to improve the efficiency and
control the operation of a facilitys energy
infrastructure. Our renewable energy products and services
include the construction of small-scale plants that produce
electricity, gas, heat or cooling from renewable sources of
energy, the sale of such electricity, processed LFG, heat or
cooling from plants that we own, and the sale and installation
of solar energy products and systems.
While in any particular quarter a single customer may account
for more than ten percent of revenue, in 2007, 2008 and 2009, no
customer accounted for more than ten percent of our revenue.
Direct
Expenses and Gross Margin
Direct expenses include the cost of labor, materials, equipment,
subcontracting and outside engineering that are required for the
development and installation of our projects, as well as
preconstruction costs, sales incentives, associated travel,
inventory obsolescence charges, and, if applicable, costs of
procuring financing. A majority of our contracts have fixed
price terms; however, in some cases we negotiate protections,
such as a cost-plus structure, to mitigate the risk of rising
prices for materials, services and equipment.
Direct expenses also include the costs of maintaining and
operating the small-scale renewable energy plants that we own,
including the cost of fuel (if any) and depreciation charges.
44
Gross margin, which is gross profit as a percent of revenue, is
affected by a number of factors, including the type of services
performed and the geographic region in which the sale is made.
Renewable energy projects that we own and operate typically have
higher margins than energy efficiency projects, and sales in the
United States typically have higher margins than in Canada due
to the typical mix of products and services that we sell there.
Operating
Expenses
Operating expenses consist of salaries and benefits, project
development costs, and general, administrative and other
expenses.
Salaries and benefits.
Salaries and benefits consist
primarily of expenses for personnel not directly engaged in
specific project or revenue generating activity. These expenses
include the time of executive management, legal, finance,
accounting, human resources, information technology and other
staff not utilized in a particular project. We employ a
comprehensive time card system which creates a contemporaneous
record of the actual time by employees on project activity. We
expect salaries and benefits to increase as we incur additional
costs related to operating as a publicly-traded company,
including accounting, compliance and legal.
Project development costs.
Project development costs
consist primarily of sales, engineering, legal, finance and
third-party expenses directly related to the development of a
specific customer opportunity. This also includes associated
travel and marketing expenses. We intend to hire additional
sales personnel and initiate additional marketing programs as we
expand into new regions or complement existing development
resources. Accordingly, we expect that our project development
costs will continue to increase, but will moderate as a
percentage of revenue over time.
General, administrative and other expenses.
These
expenses consist primarily of rents and occupancy, professional
services, insurance, unallocated travel expenses,
telecommunications and office expenses. Professional services
consist principally of recruiting costs, external legal, audit,
tax and other consulting services. We expect general and
administrative expenses to increase as we incur additional costs
related to operating as a publicly-traded company, including
increased audit and legal fees, costs of compliance with
securities, corporate governance and other regulations, investor
relations expenses and higher insurance premiums, particularly
those related to director and officer insurance.
Other
Income (Expense), net
Other income (expense), net consists primarily of interest
income on cash balances, interest expense on borrowings and
amortization of deferred financing costs, unrealized gains and
losses on derivatives not accounted for as hedges, and realized
gains on derivatives not accounted for as hedges. Interest
expense will vary periodically depending on the amounts drawn on
our revolving senior secured credit facility and the prevailing
short-term interest rates.
Provision
for Income Taxes.
The provision for income taxes is based on various rates set by
federal and local authorities and is affected by permanent and
temporary differences between financial accounting and tax
reporting requirements.
Critical
Accounting Policies and Estimates
This discussion and analysis of our financial condition and
results of operations is based upon our consolidated financial
statements, which have been prepared in accordance with GAAP.
The preparation of these consolidated financial statements
requires management to make estimates and assumptions that
affect the reported amounts of assets, liabilities, revenue,
expense and related disclosures. The most significant estimates
with regard to these consolidated financial statements relate to
estimates of final contract profit in accordance with long-term
contracts, project development costs, project assets, impairment
of goodwill, impairment of long-lived assets, fair value of
derivative financial instruments, income taxes and stock-based
compensation expense. Such estimates and assumptions are based
on historical experience and on various other factors that
45
management believes to be reasonable under the circumstances.
Estimates and assumptions are made on an ongoing basis, and
accordingly, the actual results may differ from these estimates
under different assumptions or conditions.
The following critical accounting policies, among others, affect
our more significant judgments and estimates used in the
preparation of our consolidated financial statements.
Revenue
Recognition
For each arrangement we have with a customer, we typically
provide a combination of one or more of the following services
or products:
|
|
|
|
|
installation or construction of energy efficiency measures,
facility upgrades
and/or
a
renewable energy plant to be owned by the customer;
|
|
|
|
sale and delivery, under long-term agreements, of electricity,
gas, heat, chilled water or other output of a renewable energy
or central plant that we own and operate;
|
|
|
|
sale and delivery of PV equipment and other renewable energy
products for which we are a distributor; and
|
|
|
|
O&M services provided under long-term O&M agreements,
as well as consulting services.
|
Often, we will sell a combination of these services and products
in a bundled arrangement. We divide bundled arrangements into
separate deliverables and revenue is allocated to each
deliverable based on the relative fair market value of all the
elements. The fair market value is determined based on the price
of the deliverable sold on a stand-alone basis.
We recognize revenue from the installation or construction of a
project on a
percentage-of-completion
basis. The
percentage-of-completion
for each project is determined on an actual
cost-to-estimated
final cost basis. In accordance with industry practice, we
include in current assets and liabilities the amounts of
receivables related to construction projects that are payable
over a period in excess of one year. We recognize revenue
associated with contract change orders only when the
authorization for the change order has been properly executed
and the work has been performed and accepted by the customer.
When the estimate on a contract indicates a loss, or claims
against costs incurred reduce the likelihood of recoverability
of such costs, our policy is to record the entire expected loss
immediately, regardless of the percentage of completion.
Deferred revenue represents circumstances where (i) there
has been a receipt of cash from the customer for work or
services that have yet to be performed, (ii) receipt of
cash where the product or service may not have been accepted by
the customer or (iii) when all other revenue recognition
criteria have been met, but an estimate of the final total cost
cannot be determined. Deferred revenue will vary depending on
the timing and amount of cash receipts from customers and can
vary significantly depending on specific contractual terms. As a
result, deferred revenue is likely to fluctuate from period to
period. Unbilled receivables represent amounts earned and
billable that were not invoiced at the end of the fiscal period.
We recognize revenue from the sale and delivery of products,
including the output of our renewable energy plants, when
produced and delivered to the customer, in accordance with the
specific contract terms, provided that persuasive evidence of an
arrangement exists, our price to the customer is fixed or
determinable and collectibility is reasonably assured.
We recognize revenue from O&M contracts and consulting
services as the related services are performed.
For a limited number of contracts under which we receive
additional revenue based on a share of energy savings, we
recognize such additional revenue as energy savings are
generated.
46
Project
Development Costs
We capitalize as project development costs only those costs
incurred in connection with the development of energy efficiency
and renewable energy projects, primarily direct labor, interest
costs, outside contractor services, consulting fees, legal fees
and associated travel, if incurred after a point in time when
the realization of related revenue becomes probable. Project
development costs incurred prior to the probable realization of
revenue are expensed as incurred.
Project
Assets
We capitalize interest costs relating to construction financing
during the period of construction. The interest capitalized is
included in the total cost of the project at completion. The
amount of interest capitalized for the years ended
December 31, 2007, 2008 and 2009 were $0, $0.2 million
and $1.4 million, respectively.
Routine maintenance costs are expensed in the current
years consolidated statements of income and comprehensive
income to the extent that they do not extend the life of the
asset. Major maintenance, upgrades and overhauls are required
for certain components of our assets. In these instances, the
costs associated with these upgrades are capitalized and are
depreciated over the shorter of the life of the asset or until
the next required major maintenance or overhaul period. Gains or
losses on disposal of property and equipment are reflected in
general and administrative expenses in the consolidated
statements of income and comprehensive income.
We evaluate our long-lived assets for impairment as events or
changes in circumstances indicate the carrying value of these
assets may not be fully recoverable. We evaluate recoverability
of long-lived assets to be held and used by estimating the
undiscounted future cash flows before interest associated with
the expected uses and eventual disposition of those assets. When
these comparisons indicate that the carrying value of those
assets is greater than the undiscounted cash flows, we recognize
an impairment loss for the amount that the carrying value
exceeds the fair value.
During 2008, we determined that impairment had incurred on two
of our LFG energy facilities. One facilitys landfill owner
was experiencing permanent operational issues with its existing
well field equipment. The volume of LFG supplied to our facility
was impaired by this factor, resulting in a write-down of the
asset value. The second facilitys industrial customer
filed for bankruptcy in 2008. We assessed the likelihood of the
industrial customer emerging from bankruptcy and the resulting
impact on future cash flows to the project in determining the
amount of the impairment. A total of $3.5 million was
written down for these two facilities, and is included in direct
expenses in the accompanying consolidated statement of income
and comprehensive income for 2008.
During 2007, we decommissioned one of our LFG facilities as the
supply agreement with the local utility company expired in
December 2006. During 2007, the plant was temporarily shut down.
The plant equipment had been in service for 20 years and
the cost of maintaining the aged equipment was economically
unfeasible. The remaining book value of $2.0 million was
written off, and is included in direct expenses in the
accompanying consolidated statement of income and comprehensive
income for 2007.
Impairment
of Goodwill
We apply ASC Topic 350 in accounting for the valuation of
goodwill and identifiable intangible assets. During our annual
goodwill impairment tests at December 31, 2009, 2008 and
2007, we determined that the fair value of equity exceeded the
carrying value of equity, and therefore that goodwill was not
impaired.
Goodwill represents the excess of cost over the fair value of
net tangible and identifiable intangible assets of businesses
acquired. We assess the impairment of goodwill and intangible
assets with indefinite lives on an annual basis and whenever
events or changes in circumstances indicate that the carrying
value of the asset may not be recoverable. We would record an
impairment charge if such an assessment were to indicate that,
more likely than not, the fair value of such assets was less
than their carrying values. Judgment is required in determining
whether an event has occurred that may impair the value of
goodwill or identifiable
47
intangible assets. Factors that could indicate that an
impairment may exist include significant underperformance
relative to plan or long-term projections, significant changes
in business strategy, significant negative industry or economic
trends or a significant decline in the base stock price of our
public competitors for a sustained period of time.
The first step, or Step 1, of the goodwill impairment test, used
to identify potential impairment, compares the fair value of the
equity with its carrying amount, including goodwill. If the fair
value of the equity exceeds its carrying amount, goodwill of the
reporting unit is considered not impaired, thus the second step
of the impairment test is unnecessary. If the carrying amount of
a reporting unit exceeds its fair value, the second step of the
goodwill impairment test shall be performed to measure the
amount of impairment loss, if any. We performed a Step 1 test at
our December 31, 2009, 2008 and 2007 annual testing dates
and determined that the fair value of equity exceeded the
carrying value of equity, and therefore that goodwill was not
impaired.
We completed the Step 1 test using both an income approach and a
market approach. The discounted cash flow method was used to
measure the fair value of our equity under the income approach.
A terminal value utilizing a constant growth rate of cash flows
was used to calculate a terminal value after the explicit
projection period. Determining the fair value using a discounted
cash flow method requires that we make significant estimates and
assumptions, including long-term projections of cash flows,
market conditions and appropriate discount rates. Our judgments
are based upon historical experience, current market trends,
pipeline for future sales and other information. While we
believe that the estimates and assumptions underlying the
valuation methodology are reasonable, different estimates and
assumptions could result in a different outcome. In estimating
future cash flows, we rely on internally-generated projections
for a defined time period for sales and operating profits,
including capital expenditures, changes in net working capital
and adjustments for non-cash items to arrive at the free cash
flow available to invested capital.
Under the market approach, we estimate the fair value based on
market multiples of revenue and earnings of comparable
publicly-traded companies and comparable transactions of similar
companies. The estimates and assumptions used in our
calculations include revenue growth rates, expense growth rates,
expected capital expenditures to determine projected cash flows,
expected tax rates and an estimated discount rate to determine
present value of expected cash flows. These estimates are based
on historical experiences, our projections of future operating
activity and our weighted-average cost of capital.
In addition, we periodically review the estimated useful lives
of our identifiable intangible assets, taking into consideration
any events or circumstances that might result in either a
diminished fair value or revised useful life. If the Step 1 test
concludes an impairment is indicated, we will employ a second
step to measure the impairment. If we determine that an
impairment has occurred, we will record a write-down of the
carrying value and charge the impairment as an operating expense
in the period the determination is made. Although we believe
goodwill and intangible assets are appropriately stated in our
consolidated financial statements, changes in strategy or market
conditions could significantly impact these judgments and
require an adjustment to the recorded balance.
Impairment
of Long-Lived Assets
We periodically evaluate long-lived assets for events and
circumstances that indicate a potential impairment. A review of
long-lived assets for impairment is performed whenever events or
changes in business circumstances indicate that the carrying
amount of the assets may not be fully recoverable or that the
useful lives of these assets are no longer appropriate. Each
impairment test is based on a comparison of the estimated
undiscounted cash flows of the asset as compared to the recorded
value of the asset. If these estimates or their related
assumptions change in the future, an impairment charge may be
required against these assets in the reporting period in which
the impairment is determined.
Derivative
Financial Instruments
We account for our interest rate swaps as derivative financial
instruments in accordance with the related guidance. Under this
guidance, derivatives are carried on our consolidated balance
sheet at fair value.
48
The fair value of our interest rate swaps is determined based on
observable market data in combination with expected cash flows
for each instrument.
Effective January 1, 2009, we adopted new guidance which
expands the disclosure requirements for derivative instruments
and hedging activities.
In the normal course of business, we utilize derivative
contracts as part of our risk management strategy to manage
exposure to market fluctuations in interest rates. These
instruments are subject to various credit and market risks.
Controls and monitoring procedures for these instruments have
been established and are routinely reevaluated. Credit risk
represents the potential loss that may occur because a party to
a transaction fails to perform according to the terms of the
contract. The measure of credit exposure is the replacement cost
of contracts with a positive fair value. We seek to manage
credit risk by entering into financial instrument transactions
only through counterparties that we believe to be creditworthy.
Market risk represents the potential loss due to the decrease in
the value of a financial instrument caused primarily by changes
in interest rates. We seek to manage market risk by establishing
and monitoring limits on the types and degree of risk that may
be undertaken. As a matter of policy, we do not use derivatives
for speculative purposes.
We did not apply hedge accounting based upon the criteria
established by the related guidance as we did not designate our
derivatives as cash flow hedges. We recognize all derivatives in
our consolidated financial statements at fair value. Cash flows
from derivative instruments are reported as operating activities
on the statements of cash flows.
We are exposed to interest rate risk through our borrowing
activities. A portion of our project financing includes two
projects that utilize a variable rate swap instrument. During
2007, we entered into two
15-year
interest rate swap contracts under which we agreed to pay an
amount equal to a specified fixed rate of interest times a
notional principal amount, and to, in turn, receive an amount
equal to a specified variable rate of interest times the same
notional principal amount. We entered into the interest rate
swap contracts as an economic hedge.
With respect to our interest rate swaps, we recorded the
unrealized gain (loss) in earnings in 2007, 2008 and 2009 of
approximately $(1.4 million), $(2.8 million) and
$2.3 million, respectively, as other (expense) income in
our consolidated statements of income and comprehensive income.
Income
Taxes
We provide for income taxes based on the liability method. We
provide for deferred income taxes based on the expected future
tax consequences of differences between the financial statement
basis and the tax basis of assets and liabilities calculated
using the enacted tax rates in effect for the year in which the
differences are expected to be reflected in the tax return.
We account for uncertain tax positions using a
more-likely-than-not threshold for recognizing and
resolving uncertain tax positions. The evaluation of uncertain
tax positions is based on factors that include, but are not
limited to, changes in tax law, the measurement of tax positions
taken or expected to be taken in tax returns, the effective
settlement of matters subject to audit, new audit activity and
changes in facts or circumstances related to a tax position. We
evaluate uncertain tax positions on a quarterly basis and adjust
the level of the liability to reflect any subsequent changes in
the relevant facts surrounding the uncertain positions. Our
liabilities for an uncertain tax position can be relieved only
if the contingency becomes legally extinguished through either
payment to the taxing authority or the expiration of the statute
of limitations, the recognition of the benefits associated with
the position meet the more-likely-than-not threshold
or the liability becomes effectively settled through the
examination process. We consider matters to be effectively
settled once: the taxing authority has completed all of its
required or expected examination procedures, including all
appeals and administrative reviews; we have no plans to appeal
or litigate any aspect of the tax position; and we believe that
it is highly unlikely that the taxing authority would examine or
re-examine the related tax position. We also accrue for
potential interest and penalties, related to unrecognized tax
benefits in income tax expense.
49
Stock-Based
Compensation Expense
Our stock-based compensation expense results from the issuances
of shares of restricted common stock and grants of stock options
and warrants to employees, directors, outside consultants and
others. We recognize the costs associated with option and
warrant grants using the fair value recognition provisions of
ASC 718, Compensation Stock Compensation (formerly
SFAS No. 123(R), Share-Based Payment). Generally, ASC
718 requires the value of all stock-based payments to be
recognized in the statement of operations based on their
estimated fair value at date of grant amortized over the
grants vesting period.
Grants
of Restricted Shares
On October 25, 2006, we issued 1,000,000 shares of
restricted stock to our principal shareholder under the 2000
stock plan in consideration for his personal indemnity of surety
arrangements required for certain projects. The shares vested in
full upon the date three years from the date of grant. At the
time the shares were issued, the fair value was determined to be
$6.82 per share. We recorded an expense of $2.3 million,
$2.3 million and $1.9 million in 2007, 2008 and 2009,
respectively, related to this award. This expense is included in
salaries and benefits in our consolidated statements of income
and comprehensive income.
Issuance
of Warrants
As part of a financing agreement, we issued warrants to acquire
1,000,000 and 800,000 shares of common stock in 2001 and
2002. The warrants initially had a per share exercise price of
$0.01 and $0.60, respectively; however the $0.60 per share
exercise price was subsequently reduced to $0.01. The holders of
the warrants are entitled to receive a proportionate share of
any distributions made to holders of the common stock. The
warrants expire on June 29, 2011 if unexercised.
During 2008, we repurchased 1,597,357 of these warrants at an
average price of $5.01 per share, for a total price of
$8.0 million. We recorded this transaction in additional
paid-in capital and it is reflected in our consolidated balance
sheets for 2008 and 2009.
Stock
Option Grants
We have granted stock options to certain employees and directors
under the 2000 stock plan. At December 31, 2009,
4,222,800 shares were available for grant under the 2000
stock plan.
Under the terms of the 2000 stock plan, all options expire if
not exercised within ten years after the grant date. The options
vest over five years, with 20% vesting at the end of the first
year and five percent vesting every three months beginning one
year after the grant date. If the employee ceases to be employed
for any reason before vested options have been exercised, the
employee generally has three months to exercise vested options
or they are forfeited.
Effective January 1, 2006, we adopted the fair value
recognition provisions of ASC 718 requiring that all stock-based
payments to employees, including grants of employee stock
options and modifications to existing stock options, be
recognized in the consolidated statements of income and
comprehensive income based on their fair values, using the
prospective-transition method.
Effective with the adoption of ASC 718, we elected to use the
Black-Scholes option pricing model to determine the
weighted-average fair value of options granted.
The determination of the fair value of stock-based payment
awards utilizing the Black-Scholes model is affected by the
stock price and a number of assumptions, including expected
volatility, expected life, risk-
50
free interest rate and expected dividends. The following table
sets forth the significant assumptions used in the model during
2007, 2008 and 2009:
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Year Ended December 31,
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2007
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2008
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2009
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Future dividends
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$
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$
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$
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Risk-free interest rate
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4.26-4.84%
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2.90-5.07%
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2.00-2.94%
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Expected volatility
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32-43%
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48-54%
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57-59%
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Expected life
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6.5 years
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6.5 years
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6.5 years
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We will continue to use our judgment in evaluating the expected
term, volatility and forfeiture rate related to our own
stock-based compensation on a prospective basis, and
incorporating these factors into the Black-Scholes pricing
model. Higher volatility and longer expected lives result in an
increase to stock-based compensation expense determined at the
date of grant. In addition, any changes in the estimated
forfeiture rate can have a significant effect on reported
stock-based compensation expense, as the cumulative effect of
adjusting the rate for all expense amortization is recognized in
the period that the forfeiture estimate is changed. If a revised
forfeiture rate is higher than the previously estimated
forfeiture rate, an adjustment is made that will result in a
decrease to the stock-based compensation expense recognized in
our consolidated financial statements. If a revised forfeiture
rate is lower than the previously estimated rate, an adjustment
is made that will result in an increase to the stock-based
compensation expense recognized in our consolidated financial
statements. These expenses will affect our direct expenses,
project development and marketing expenses, and salaries and
benefits expense.
As of December 31, 2009, we had $6.8 million of total
unrecognized stock-based compensation cost related to employee
stock options. We expect to recognize this cost over a
weighted-average period of 4.02 years after January 1,
2010. The allocation of this expense between direct expenses,
project development and marketing expenses, and salaries and
benefits expense will depend on the salaries and work
assignments of the personnel holding these options.
Determination
of Fair Value
We believe we have used reasonable methodologies and assumptions
in determining the fair value of our common stock for financial
reporting purposes. Our board of directors has historically
estimated the fair value of our common stock. Because there has
been no public market for our shares, our board of directors
historically determined the fair value of our common stock based
primarily on the market approach, together with a number of
objective and subjective factors, including:
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our results of operations and financial condition during the
most recently completed period;
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forecasts of our financial results and market conditions
affecting our business; and
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developments in our business
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The market approach estimates the fair value of a company by
applying market multiples of publicly-traded, or
recently-acquired, firms in the same or similar lines of
business to the results and projected results of the company
being valued. In establishing exercise prices for our options,
we followed a methodology designed to result in exercise prices
that were not lower than, but could be higher than, the then
fair value of our common stock. When choosing companies for use
in the market approach, we focused on companies that provide
energy efficiency services and have high rates of growth. To
determine our enterprise value, we reviewed the multiple of
market valuations of the comparable companies to their EBITDA
for the prior fiscal year (based on publicly-available data), as
well as the multiples of EBITDA for the prior fiscal year paid
by us for our acquisitions. Based on this review, we established
a market multiple which was generally higher than that of our
comparable companies, and which we then applied to our own
adjusted EBITDA for the prior fiscal year. To determine equity
value, we added cash on hand at the end of the period and the
cash from the pro forma exercise of stock options, and then
subtracted senior corporate debt. The resulting value was
divided by the number of common shares outstanding on a fully
diluted basis to obtain the fair value per share of
51
common stock. Typically, we performed a new valuation annually
after completing our audited consolidated financial statements.
Since the beginning of 2007, we granted stock options with
exercise prices as follows:
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Number of Shares of
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Common Stock
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Subject to Option
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Exercise Price
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Grant Date or Period
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Grants
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per Share
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January 24, 2007
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250,000
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$
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6.82
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July 25, 2007 to January 30, 2008
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491,000
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8.44
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April 30, 2008 to January 28, 2009
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124,000
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12.11
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July 22, 2009 to September 30, 2009
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421,000
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12.11
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The analyses undertaken in determining the exercise prices for
all option grants between January 24, 2007 and
December 31, 2009 are summarized below.
Grants on January 24, 2007.
On October 25,
2006, our board of directors established the exercise price per
share of common stock at $6.82 per share. The market approach
resulted in an enterprise value of $144.6 million,
determined by applying the market multiple to our adjusted
EBITDA for the year ended December 31, 2005. That value was
increased by cash on hand totaling $10.5 million and
reduced by debt of $11.8 million, for an equity value of
$145.9 million. The equity value was divided by
21.4 million fully diluted shares outstanding to arrive at
the estimated fair value per share.
Grants from July 25, 2007 to January 30,
2008.
On July 25, 2007, our board of directors
established the exercise price per share of common stock at
$8.44 per share. The market approach resulted in an enterprise
value of $157.9 million, determined by applying the market
multiple to our adjusted EBITDA for the year ended
December 31, 2006. That value was increased by cash on hand
totaling $43.5 million and reduced by debt of
$8.0 million, for an equity value of $195.3 million.
The equity value was divided by 23.1 million fully diluted
shares outstanding to arrive at the estimated fair value per
share.
Grants from April 30, 2008 to January 28,
2009.
On April 30, 2008, our board of directors
established the exercise price per share of common stock at
$12.11 per share. The market approach resulted in an enterprise
value of $223.6 million, determined by applying the market
multiple to our adjusted EBITDA for the year ended
December 31, 2007. That value was increased by cash on hand
totaling $43.5 million and reduced by debt of
$8.0 million. In view of the increase in the number of
options outstanding, we added the pro forma exercise cash value
of the options, at a weighted-average exercise price of $3.99
per share, totaling $21.7 million. This resulted in an
equity value of $280.7 million, which was divided by
23.2 million fully diluted shares outstanding to arrive at
the estimated fair value per share.
Grants from July 22, 2009 to September 30,
2009.
On July 22, 2009, our board of directors
established the exercise price per share of common stock at
$12.11 per share. Based on the methodology described above, our
board would have decreased the value of a share of our common
stock (from $12.11 to $11.32). However, the decrease was due
primarily to higher corporate debt levels and a lower cash
balance, which in our boards view were the result
primarily of the unprecedented economic conditions prevailing at
that time. Our board, therefore, determined not to reduce its
estimate of the fair value of the common stock and to maintain
the value at $12.11 per share.
In March 2010, in connection with the preparation of our
consolidated financial statements for the year ended
December 31, 2009 and in preparing for our initial public
offering, our board of directors decided to undertake a
reassessment of the fair value of our common stock in 2007, 2008
and 2009. As a part of that reassessment, our board of directors
took into account not only the factors it originally considered
in determining fair value, but it also considered as of such
dates:
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the liquidation preferences of our preferred stock, including
any financing and repurchase activities that may have occurred
in the relevant period;
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the illiquid nature of our common stock, including the
opportunity and timing for any expected liquidity events;
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our size and historical operating and financial performance,
including our recent operating and financial projections as of
each grant date;
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our existing backlog;
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important events in the development of our business; and
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the market performance of a peer group comprised of selected
publicly-traded companies we identified as being guidelines for
us.
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In performing this retrospective analysis, we reexamined and
reapplied the market approach and also applied the current value
method to allocate the equity to the various share classes as
outlined in the American Institute of Certified Public
Accountants Technical Practice Aid, Valuation of Privately-Held
Company Equity Securities Issued as Compensation, which we refer
to as the practice aid. We believe that the valuation
methodologies used in the retrospective analysis are reasonable
and consistent with the practice aid.
In applying the current value method, we considered the rights
of our Series A convertible preferred stock, which we refer
to as our Series A preferred stock, and which will be
converted into shares of Class B common stock upon the
closing of this offering. The calculated enterprise value as of
each of the valuation dates was significantly higher than the
cumulative liquidation preference of our Series A preferred
stock of $3.2 million. We also determined that in each
valuation date, the Series A preferred stock would receive
a substantially higher per share value on an as if
converted to common stock basis than by retaining its
liquidation preference. Thus for the purposes of these
valuations the total equity value was divided by the fully
diluted shares outstanding in order to calculate the per share
value of our common stock.
In connection with this retrospective analysis, in determining
our enterprise value, our analysis also considered the
calculated multiple of market valuations of the comparable
companies to their next 12 months EBITDA, and applied this
multiple to our own next 12 months projected adjusted
EBITDA, in addition to considering the enterprise value to
trailing 12 months adjusted EBITDA. To determine equity
value, we added cash on hand at the end of the period and the
cash from the assumed pro forma exercise of
in-the-money
stock options, and then subtracted senior corporate debt. To
allocate the equity, we considered the option pricing method
from the practice aid. In connection with applying the option
pricing method to value our common stock for these valuation
dates, we determined that allocating the equity based on
applying the option pricing method instead of the current value
method in the contemporaneous valuations resulted in immaterial
differences from the per share value calculated using the
current value method.
Following this retrospective analysis, our board of directors
determined that the fair value of our common stock remained as
previously determined in 2007, 2008 and on January 28, 2009, and
that the fair value was $18.00 per share on July 22, 2009
and $22.00 per share on September 25, 2009, as described
below.
January 28, 2009 Fair Value Calculation.
The
fair value of our common stock as of January 28, 2009 was
retrospectively determined to be $12.11 per share. In applying
the market approach, our next 12 months projected EBITDA was
primarily affected by the following factors:
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continued challenges during 2008 in the U.S. economy and
decreased valuations of comparable companies; and
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concerns about liquidity during the upcoming fiscal quarters.
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July 22, 2009 Fair Value Calculation.
The fair
value of our common stock as of July 22, 2009 was
retrospectively determined to be $18.00 per share. In applying
the market approach, our next 12 months projected adjusted
EBITDA was primarily affected by the following factors:
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we were notified in March 2009 that the U.S. Department of
Energy had lifted restrictions on its ability to enter into
ESPCs, which permitted us to proceed with the execution of
larger federal contracts;
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in May 2009, we executed a contract for our large
U.S. Department of Energy Savannah River Site renewable
energy project; however, we had not yet secured the financing
necessary to complete this project; and
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improvement in general economic and market conditions in the
first half of 2009.
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In addition, this determination took into account our
expectation that we would undertake an initial public offering
within one year.
September 25, 2009 Fair Value Calculation.
The
fair value of our common stock as of September 25, 2009 was
retrospectively determined to be $22.00 per share. In applying
the market approach, our next 12 months projected EBITDA was
primarily affected by our securing in August 2009 the financing
necessary to complete our Savannah River Site project and a
large energy efficiency project. In addition, this determination
took into account our expectation that we would undertake an
initial public offering within nine months.
We have incorporated the fair values calculated in the
retrospective valuations into the Black-Scholes option pricing
model when calculating the stock-based compensation expense to
be recognized for the stock options granted during the period
from July through September 2009. The retrospective valuations
generated per share fair values of common stock of $18.00 and
$22.00, respectively, at July 22, 2009 and
September 25, 2009. This resulted in intrinsic values of
$5.89 and $9.89 per share, respectively, at each grant date.
Valuation models require the input of highly subjective
assumptions. There are significant judgments and estimates
inherent in the determination of these valuations. These
judgments and estimates include assumptions regarding our future
performance, the time to undertaking and completing an initial
public offering or other liquidity event, as well as
determinations of the appropriate valuation methods. If we had
made different assumptions, our stock-based compensation
expense, net income and net income per share could have been
significantly different. Additionally, because our capital stock
prior to this offering had characteristics significantly
different from that which will apply upon the closing of this
offering, and because changes in the subjective input
assumptions can materially affect the fair value estimate, in
managements opinion, the existing models do not
necessarily provide a reliable, single measure of fair value.
The foregoing valuation methodologies are not the only valuation
methodologies available and will not be used to value our
Class A or Class B common stock once this offering is
complete. We cannot make assurances regarding any particular
valuation of our shares.
Internal
Control Over Financial Reporting
We had a material weakness in our internal control over
financial reporting in each of 2007, 2008 and 2009. A material
weakness is defined as a deficiency, or combination of
deficiencies, in internal control over financial reporting, such
that there is a reasonable possibility that a material
misstatement of the companys annual or interim financial
statements will not be prevented or detected on a timely basis
by the companys internal controls. We do not currently
have personnel with an appropriate level of knowledge,
experience and training in the selection, application and
implementation of GAAP as it relates to certain complex
accounting issues, income taxes and SEC financial reporting
requirements. This constitutes a material weakness, which we
plan to remediate by hiring additional personnel with the
requisite expertise. See Risk Factors We have
a material weakness in our internal control over financial
reporting. If we fail to establish and maintain proper and
effective internal controls, our ability to produce accurate
financial statements could be impaired, which could adversely
affect our operating results, our ability to operate our
business and investors and customers views of
us.
Results
of Operations
Revenue
Total revenue.
Total revenue increased by
$32.6 million, or 8.3%, from 2008 to 2009, due primarily to
an increase in energy efficiency revenue and, to a lesser
extent, an increase in renewable energy revenue.
54
Total revenue increased by $17.4 million, or 4.6%, from
2007 to 2008 due to an increase in renewable energy revenue,
offset in part by a decrease in energy efficiency revenue.
Energy efficiency revenue.
Energy efficiency revenue
increased by $15.6 million, or 4.8%, from 2008 to 2009, due
to an increase in the number of new projects for municipal and
other institutional customers that commenced in late 2008 and
continued through 2009. Revenue decreased by $20.9 million,
or 6.0%, from 2007 to 2008, primarily because the size of our
energy efficiency projects in the Canadian market decreased
significantly from an unusually high level in 2007.
Renewable energy revenue.
Renewable energy revenue
increased by $17.1 million, or 24.1%, from 2008 to 2009,
due mainly to an increase in the number of LFG and biomass
facilities being built by us for federal agencies. Construction
volume of such plants increased by $16.0 million from 2008
to 2009. Additionally, in 2009, we placed in service eight new
plants owned by us that sell and deliver LFG, or electricity
generated by LFG, to customers. Partially offsetting this
increase in revenue was a decline in the sales of PV systems and
components, primarily due to a decline in market prices of solar
panels. In 2008, renewable energy revenue increased by
$38.3 million, or 117.6% from 2007. The increase in 2008
was due primarily to increased sales of solar energy products
and services, reflecting the first full year of sales from
Southwestern Photovoltaic, Inc., or SWPV, which we acquired in
May 2007. Also contributing to the increase in 2008, to a lesser
extent, was an increase in revenue from the construction of
biomass and LFG plants for federal agencies.
Revenue from customers outside the United States, principally
Canada, was $86.9 million in 2009, compared with
$87.2 million in 2008 and $100.4 million in 2007.
Direct
Expenses
Total direct expenses.
Direct expenses increased by
$30.2 million, or 9.5%, from 2008 to 2009, due to higher
revenue. Lower profit margins caused direct expenses to increase
at a greater rate than revenue. Direct expenses increased by
$6.5 million, or 2.1%, from 2007 to 2008, due to the
increase in revenue, but at a slower rate as profit margins
improved during the year. Direct expenses generally increase or
decrease as related revenue increases or decreases.
Energy efficiency.
Energy efficiency gross margin
decreased from 20.3% in 2008 to 17.2% in 2009, due primarily to
cost overruns on several projects, as well as lower budgeted
margins on certain Canadian projects. Energy efficiency gross
margin increased from 17.4% in 2007 to 20.3% in 2008 due
primarily to the recovery of a cost contingency for a project
that was completed without requiring the use of such contingency
and the recovery of a cost contingency relating to an O&M
contract that was terminated as part of a settlement with a
customer.
Renewable energy.
Renewable energy gross margin
increased from 15.9% in 2008 to 24.4% in 2009 as a result of the
completion of seven new renewable energy plants, which typically
have higher margins than PV products. Renewable energy gross
margins decreased from 19.9% in 2007 to 15.9% in 2008 due
primarily to a higher proportion of sales in 2008 represented by
PV products.
Operating
Expenses
Salaries and benefits.
Salaries and benefits
declined $2.0 million, or 6.7%, from 2008 to 2009, as a
higher proportion of salaries and benefits was allocated to
direct expense due to the increased utilization rates of our
staff resulting from the higher volume of development and
construction activity in 2009. Lower employee incentive payments
also contributed to the decrease. Salaries and benefits
increased from 2007 to 2008 by $4.4 million, or 17.0%, due
primarily to the addition of personnel from the acquisition of
SWPV and other staff additions.
Project development.
Project development expenses
declined $3.5 million, or 26.8%, from 2008 to 2009, and
increased $5.0 million, or 62.6%, from 2007 to 2008. Our
project development expenses were unusually high in 2008 as a
result of a major marketing and rebranding initiative that we
undertook and delays
55
in projects due to the limited availability of financing for our
customers. Expenses that we incurred during such delays are
recorded as project development expenses rather than direct
expenses.
General, administrative and other.
General,
administrative and other expenses increased $7.3 million,
or 79.5%, from 2008 to 2009, and declined by $3.9 million,
or 29.6%, from 2007 to 2008. In 2008, we recorded as a reduction
to general, administrative and other expenses the sum of
$5.8 million reflecting the recovery of a contingency that
we had established in connection with our acquisition of Select
Energy in 2006. Also in 2008, we incurred an additional
$2.0 million of general, administrative and other expenses
due to the first full year of operations of SWPV. In 2009,
general, administrative and other expense included
$2.2 million paid by us to settle a dispute with a
competitor related to our PV business.
Other
Income (Expense)
Other income (expense) increased from 2008 to 2009 by
$6.7 million, from a net expense of $5.2 million to a
net income of $1.6 million, due primarily to realized and
unrealized gains from derivatives. In 2008, net expense
increased by $2.0 million, or 65.3%, due to an increase in
unrealized losses on derivatives and an increase in net interest
expense. The following table shows the changes in other income
(expense) from 2007 to 2008 and from 2008 to 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Gain realized from derivative
|
|
$
|
|
|
|
$
|
|
|
|
$
|
2,493,980
|
|
Unrealized (loss) gain from derivatives
|
|
|
(1,365,813
|
)
|
|
|
(2,831,524
|
)
|
|
|
2,263,802
|
|
Interest expense, net of interest income
|
|
|
(1,448,667
|
)
|
|
|
(2,117,567
|
)
|
|
|
(2,993,250
|
)
|
Amortization of deferred financing costs
|
|
|
(323,587
|
)
|
|
|
(238,454
|
)
|
|
|
(201,622
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(3,138,067
|
)
|
|
$
|
(5,187,545
|
)
|
|
$
|
1,562,910
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
Before Taxes
Income before taxes increased from 2008 to 2009 by
$7.4 million, or 37.8%, due to realized and unrealized
gains on derivatives, partially offset by the $5.8 million
contingency recovery in 2008. Adjusting for the effect of these
items, income before taxes in 2009 would have increased by
$6.0 million, or 36.4%, compared to 2008. Higher revenue
and improving margins were the principal reasons for the
improvement in the adjusted results.
Income before taxes increased from 2007 to 2008 by
$3.2 million, or 19.9%, due to the contingency recovery
described above, partially offset by unrealized losses on
derivatives and higher depreciation charges.
Provision
for Income Taxes
The provision for income taxes is based on various rates set by
federal and local authorities and are affected by permanent and
temporary differences between financial accounting and tax
reporting requirements. Our statutory rate, which is combined
federal and state rate, has ranged between 36.1% and 41.3%.
During 2009, we recognized income taxes of $6.9 million, or
25.8% of pretax income. The principal difference between the
statutory rate and the effective rate was due to deductions
permitted under Section 179(d) of the Code, which relate to
the installation of certain energy efficiency equipment in
government-owned buildings, as well as production tax credits to
which we are entitled from the electricity generated by certain
plants that we own. These energy efficiency tax benefits
accounted for a $3.0 million reduction in the 2009
provision, or a reduction of 11.1 percentage points in the
rate.
In 2008, the tax provision was $1.2 million, or 6.2%, as we
recognized benefits of the Section 179(d) deduction. These
cumulative benefits, plus production tax credits for electricity
generation, resulted in an $8.0 million reduction in the
tax provision, and decreased our effective rate by
40.9 percentage points.
In 2007, the tax provision was $5.7 million, or 35.1%. The
difference between the statutory rate and our effective rate was
due primarily to the energy efficiency preferences from the
Section 179(d) deduction
56
and production tax credits for electricity generation, resulting
in an $1.2 million reduction in the tax provision, and a
decrease in the effective rate by 7.5 percentage points.
Net
Income
Net income increased in 2009 by $1.6 million, or 8.9%, due
to higher pre-tax income, partially offset by an increase in the
tax provision. Earnings per share in 2009 were $3.98 per basic
share, and $1.24 per diluted share, representing an increase of
$0.56, or 16.4%, and $0.16, or 14.5%, respectively. The
weighted-average number of basic and diluted shares decreased by
6.4% and 4.9%, respectively, as a result of share repurchases.
Net income in 2008 was $18.3 million, compared with
$10.5 million in 2007, an increase of $7.7 million, or
73.3%. The increase was a result of higher income before taxes,
and a significantly lower tax provision. Earnings per share were
$3.42 per basic share and $1.09 per diluted share in 2008,
representing an increase of 80.5% and 83.1%, respectively, from
2007. The weighted-average number of basic and diluted shares
outstanding decreased in 2008 by 4.0% and 5.4%, respectively, as
a result of share and option repurchases.
Liquidity
and Capital Resources
Sources of liquidity.
Since inception, we have
funded operations primarily through cash flow from operations
and various forms of debt. We believe that available cash and
cash equivalents and availability under our revolving senior
secured credit facility, combined with our access to credit
markets and the net proceeds from this offering, will be
sufficient to fund our operations through 2011 and thereafter.
Capital expenditures.
Our total capital expenditures
were $22.8 million in 2007, $43.0 million in 2008, and
$21.6 million in 2009, which is net of $12.9 million
in Section 1603 rebates. Section 1603 of the American
Recovery and Reinvestment Tax Act of 2009 authorized the
U.S. Department of the Treasury to make payments to
eligible persons who place in service specified energy property.
This property would have been eligible for production tax
credits under the Code, but we elected to forego such tax in
exchange for the payment made under Section 1603.
Additionally, we invested $10.8 million for an acquisition
in 2007 and $0.7 million for an acquisition in 2009. We
currently plan to make capital expenditures of approximately
$30 million in 2010, principally for new renewable energy
plants.
Cash flows from operating activities.
Operating
activities provided $45.3 million of net cash during 2009.
In 2009, we had net income of $19.9 million, which is net
of non-cash compensation, depreciation and amortization totaling
$10.1 million, partially offset by a $2.3 million
unrealized gain on derivatives. Increases in accounts payable
and other liabilities contributed $36.7 million, and
investment in federal projects used $19.8 million, in 2009.
Other changes in net assets and liabilities provided the balance
of net cash during the year.
Operating activities provided $1.3 million of net cash
during 2008. We had net income of $18.3 million which
included non-cash compensation, depreciation and amortization
totaling $6.7 million, impairments and write-downs totaling
$4.8 million and a $2.8 million unrealized loss on
derivatives. Net income also included a non-cash gain related to
an acquisition of $5.9 million. Payments pursuant to
O&M contracts decreased by $8.0 million due primarily
to late customer remittances. Inventory and project development
costs used $3.8 million and $3.6 million,
respectively. Other changes in net assets and liabilities used
$12.3 million of net cash during the year.
Operating activities provided $30.3 million of net cash
during 2007. We had net income of $10.5 million which
included non-cash compensation, depreciation and amortization
totaling $6.6 million, a $2.0 million asset write-down
and a $1.4 million unrealized loss from a derivative. Net
income also included a non-cash gain related to a securitization
of $2.3 million. Activity related to federal projects
contributed $11.4 million of cash and changes in net assets
and liabilities used $3.9 million of net cash during the
year.
Cash flows from investing activities.
Cash flows
from investing activities primarily relate to capital
expenditures to support our growth.
57
Cash used in investing activities totaled $22.3 million
during 2009 and consisted of capital expenditures of
$21.6 million, primarily related to the development of
renewable energy plants. This amount was net of
$12.9 million of Section 1603 rebates. Also,
$0.7 million of cash was used for an acquisition.
Cash used in investing activities totaled $43.0 million
during 2008 and consisted solely of capital expenditures
primarily for development of renewable energy plants.
Cash used in investing activities totaled $33.6 million
during 2007 and consisted of capital expenditures of
$22.8 million, primarily related to the development of
renewable energy plants. Also, $10.8 million of cash was
used for an acquisition.
Cash flows from financing activities.
Cash flows
provided by financing activities totaled $4.1 million
during 2009 and included proceeds, net of financing costs, of
$25.4 million from a construction and term loan facility
provided by a bank. These proceeds were offset by repayments of
$14.6 million on our revolving senior secured credit
facility, repayments of $3.6 million on other long-term
debt and payments of $3.1 million into restricted cash
accounts.
Cash flows provided by financing activities totaled
$22.2 million during 2008 and included proceeds of
$34.5 million from our revolving senior secured credit
facility and proceeds from project finance debt of
$9.3 million. These proceeds were partially offset by
repayments of $2.5 million on long-term debt,
$2.9 million of project debt, $0.9 million in
financing fees, $12.9 million for the repurchase of stock
and warrants and payments of $2.4 million into restricted
cash accounts.
Cash flows used in financing activities totaled
$3.2 million during 2007, primarily related to the
repayment of long-term debt of $4.4 million, repayment of
senior debt of $2.5 million and the repurchase of employee
stock and options of $2.5 million, partially offset by
$6.2 million of proceeds from project financing.
Subordinated
Note
In connection with the organization of Ameresco, on May 17,
2000, we issued a subordinated note to our principal stockholder
in the amount of $3.0 million. The subordinated note bears
interest at the rate of 10.00% per annum, payable monthly in
arrears, and is subordinate to our revolving senior secured
credit facility. The subordinated note is payable upon demand.
We incurred $0.3 million of interest related to the
subordinated note during each of 2007, 2008 and 2009. The note
will be repaid out of the proceeds of this offering.
Revolving
Senior Secured Credit Facility
On June 10, 2008, we entered into a credit and security
agreement with a bank, consisting of a $50 million
revolving facility. The agreement requires us to pay monthly
interest at various rates in arrears, based on the amount
outstanding. This facility has a maturity date of June 30,
2011. The facility is secured by a lien on all of our assets
other than renewable energy projects that we own that were
financed by others, and limits our ability to enter into other
financing arrangements. Availability under the facility is based
on two times our EBITDA for the preceding four quarters, and we
are required to maintain a minimum EBITDA of $20 million on
a rolling four-quarter basis and a minimum level of tangible net
worth. The full line of credit was available to us as of
December 31, 2009. There was $34.5 million and
$19.9 million in principal outstanding under the facility
as of December 31, 2008 and 2009, respectively.
Project
Financing
Construction and Term Loans.
We have entered into a
number of construction and term loan agreements for the purpose
of constructing and owning certain renewable energy plants. The
physical assets and the operating agreements related to the
energy plants are owned by wholly-owned, single member special
purpose subsidiaries. These construction and term loans are
structured as project financings made directly to a subsidiary,
and upon acceptance of a project, the related construction loan
converts into a term loan. While we are required under GAAP to
reflect these loans as liabilities on our balance sheet, they
are nonrecourse and not
58
direct obligations of Ameresco, Inc. As of December 31,
2009, we had outstanding $58.4 million in aggregate
principal amount under these loans, bearing interest at rates
ranging from 6.9% to 8.7% and maturing at various dates from
2014 to 2021. As of December 31, 2009, a term loan in the
amount of $5.4 million was in default as a result of the
bankruptcy of the customer for the energy output of the plant
financed by the loan. This customer has emerged from bankruptcy,
confirmed its obligations to our subsidiary and made all back
payments together with interest. We are currently seeking to
refinance this loan to cure the default.
Federal ESPC Receivable Financing.
We have
arrangements with certain lenders to provide advances to us
during the construction or installation of projects for certain
customers, typically federal governmental entities, in exchange
for our assignment to the lenders of our rights to the long-term
receivables arising from the ESPCs related to such projects.
These financings totaled $32.6 million in principal amount
at December 31, 2009. Under the terms of these financing
arrangements, we are required to complete the construction or
installation of the project in accordance with the contract with
our customer, and the debt remains on our consolidated balance
sheet until the completed project is accepted by the customer.
Contractual
Obligations
The following table summarizes our significant contractual
obligations and commitments as of December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments due by Period
|
|
|
|
|
Less than
|
|
One to
|
|
Three to
|
|
More than
|
|
|
Total
|
|
One Year
|
|
Three Years
|
|
Five Years
|
|
Five Years
|
|
|
(In thousands)
|
|
Revolving senior secured credit facility(1)
|
|
$
|
19,915
|
|
|
$
|
|
|
|
$
|
19,915
|
|
|
$
|
|
|
|
$
|
|
|
Term loans
|
|
|
31,307
|
|
|
|
8,093
|
|
|
|
5,906
|
|
|
|
5,638
|
|
|
|
11,670
|
|
Construction loans(2)
|
|
|
27,055
|
|
|
|
27,055
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal ESPC receivable financing(3)
|
|
|
32,622
|
|
|
|
3,419
|
|
|
|
29,203
|
|
|
|
|
|
|
|
|
|
Interest obligations(4)
|
|
|
10,641
|
|
|
|
2,801
|
|
|
|
3,262
|
|
|
|
1,781
|
|
|
|
2,797
|
|
Operating leases
|
|
|
5,521
|
|
|
|
2,195
|
|
|
|
1,819
|
|
|
|
745
|
|
|
|
762
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
127,061
|
|
|
$
|
43,563
|
|
|
$
|
60,105
|
|
|
$
|
8,164
|
|
|
$
|
15,229
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
For our revolving senior secured credit facility, the table
above assumes that the variable interest rate in effect as of
December 31, 2009 remains constant for the term of the
facility.
|
|
(2)
|
|
These construction loans will convert during 2010 into term
loans under our existing construction and term loan agreement
upon customer acceptance of the projects financed with such
loans, and the to-be-converted amounts are not reflected in this
table as term loans following such anticipated conversion.
|
|
(3)
|
|
Federal ESPC receivable financing arrangements relate to the
installation and construction of projects for certain customers,
typically federal governmental entities, where we assign to the
lenders our right to customer receivables. We are relieved of
the financing liability when the project is completed and
accepted by the customer.
|
|
(4)
|
|
The table does not include, for our federal ESPC receivable
financing arrangements, the difference between the aggregate
amount of the long-term customer receivables sold by us to the
lender and the amount received by us from the lender for such
sale.
|
|
|
|
During 2010, we have entered into four federal ESPC
financing arrangements. These financings are with various
financial institutions, totaling approximately
$40.4 million. Discount rates vary by project, ranging from
6.80% to 7.81%.
|
Off-Balance
Sheet Arrangements
We did not have during the periods presented, and we do not
currently have, any off-balance sheet arrangements, as defined
under SEC rules, such as relationships with unconsolidated
entities or financial partnerships, which are often referred to
as structured finance or special purpose entities, established
for the purpose of facilitating financing transactions that are
not required to be reflected on our balance sheet.
59
Quantitative
and Qualitative Disclosures About Market Risk
We are exposed to changes in interest rates and foreign currency
exchange rates because we finance certain operations through
fixed and variable rate debt instruments and denominate our
transactions in U.S. and Canadian dollars. Changes in these
rates may have an impact on future cash flows and earnings. We
manage these risks through normal operating and financing
activities and, when deemed appropriate, through the use of
derivative financial instruments.
Interest
Rate Risk
We had cash and cash equivalents totaling $47.9 million as
of December 31, 2009, $18.1 million as of
December 31, 2008, and $40.9 million as of
December 31, 2007. Our exposure to interest rate risk
primarily relates to the interest expense paid on our revolving
line of credit.
Foreign
Currency Risk
As a result of our operations in Canada, we have significant
expenses, assets and liabilities that are denominated in a
foreign currency. Also, a significant number of employees are
located in Canada. Accordingly, we have a significant amount of
business transacted in Canadian currency.
As a consequence, gross profit, operating results, profitability
and cash flows are impacted by relative changes in the value of
the Canadian dollar. We have not repatriated earnings from the
Canadian subsidiary, but have elected to invest in new business
opportunities there. We do not hedge our exposure to foreign
currency exchange risk.
Derivative
Instruments
We do not enter into financial instruments for trading or
speculative purposes.
By using derivative instruments, we are subject to credit and
market risk. The fair market value of the derivative instruments
is determined by using valuation models whose inputs are derived
using market observable inputs, including interest rate yield
curves, and reflects the asset or liability position as of the
end of each reporting period. When the fair value of a
derivative contract is positive, the counterparty owes us, thus
creating a receivable risk for us. We are exposed to
counterparty credit risk in the event of non-performance by
counterparties to our derivative agreements. We minimize
counterparty credit (or repayment) risk by entering into
transactions with major financial institutions of investment
grade credit rating.
Our exposure to market risk is not hedged in a manner that
completely eliminates the effects of changing market conditions
on earnings or cash flow.
Recent
Accounting Pronouncements
Codification.
In 2009, the Financial Accounting
Standards Board, or FASB, issued an accounting pronouncement
establishing the FASB Accounting Standards Codification, or ASC,
as the source of authoritative accounting principles recognized
by the FASB to be applied by nongovernmental entities. This
pronouncement was effective for financial statements issued for
interim and annual periods ending after September 15, 2009
for most entities. On the effective date, all non-SEC accounting
and reporting standards were superseded. We adopted this new
accounting pronouncement during 2009, and it did not have a
material impact on our consolidated financial statements.
Subsequent Events.
In May 2009, the FASB issued
guidance on subsequent events, which sets forth general
standards of accounting for and disclosure of events that occur
after the balance sheet date but before financial statements are
issued or are available to be issued. We adopted the guidance
during 2009, and it did not have a material impact on our
consolidated financial statements.
Fair Value Measurement.
In January 2010, the FASB
issued guidance on improving disclosures about fair value
measurements. This guidance has new requirements for disclosures
related to recurring or
60
nonrecurring fair-value measurements including significant
transfers into and out of Level 1 and Level 2
fair-value measurements and information on purchases, sales,
issuances and settlements in a rollforward reconciliation of
Level 3 fair-value measurements. This guidance is effective
for the first reporting period beginning after December 15,
2009, and, as a result, it was effective for us beginning on
January 1, 2010. The Level 3 reconciliation
disclosures are effective for fiscal years beginning after
December 15, 2010, which will be effective for us for the
year ending December 31, 2011. We do not expect our
adoption of this guidance to have a material impact on our
consolidated financial statements.
On January 1, 2007, we adopted the related guidance for
fair value measurements. The guidance defines fair value,
establishes a framework for measuring fair value in accordance
with GAAP and expands disclosures about fair value measurements.
In addition, in 2009, we adopted fair value measurements for all
of our
non-financial
assets and non-financial liabilities, except for those
recognized at fair value in our consolidated financial
statements at least annually. These assets include goodwill and
long-lived assets measured at fair value for impairment
assessments, and non-financial assets and liabilities initially
measured at fair value in a business combination. Our adoption
of this guidance did not have a material impact on our
consolidated financial statements.
In September 2009, the FASB issued guidance related to revenue
arrangements with multiple deliverables as codified in
ASC 605, Revenue Recognition, or ASC 605. ASC 605
provides greater ability to separate and allocate arrangement
consideration in a multiple element revenue arrangement. In
addition, ASC 605 requires the use of estimated selling
price to allocate arrangement considerations, therefore
eliminating the use of the residual method of accounting.
ASC 605 will be effective for fiscal years beginning after
June 15, 2010 and may be applied retrospectively or
prospectively for new or materially modified arrangements.
Earlier application is permitted. We do not expect our adoption
of this guidance will have a material effect on our consolidated
financial statements.
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BUSINESS
Company
Overview
Ameresco is a leading provider of energy efficiency solutions
for facilities throughout North America. Our solutions enable
customers to reduce their energy consumption, lower their
operating and maintenance costs and realize environmental
benefits. Our comprehensive set of services addresses almost all
aspects of purchasing and using energy within a facility. Our
services include upgrades to a facilitys energy
infrastructure and the construction and operation of small-scale
renewable energy plants. As one of the few large, independent
energy efficiency service providers, we are able to objectively
select and provide the products and technologies best suited for
a customers needs. Having grown from four offices in three
states in 2001 to 54 offices in 29 states and four Canadian
provinces in 2009, we now combine a North American footprint
with strong local operations, which enable us to remain close to
our customers and serve them effectively.
The market for energy efficiency services has grown
significantly, driven largely by rising and volatile energy
prices, advances in energy efficiency and renewable energy
technologies, governmental support for energy efficiency and
renewable energy programs and growing customer awareness of
energy costs and environmental issues. End-users and
governmental agencies are increasingly viewing energy efficiency
measures as a cost-effective solution for saving energy,
renewing aging facility infrastructure and reducing harmful
emissions.
Our principal service is the development, design, engineering
and installation of projects that reduce the energy and O&M
costs of our customers facilities. These projects
typically include a variety of measures customized for the
facility and designed to improve the efficiency of major
building systems, such as heating, ventilation, air conditioning
and lighting systems. We typically commit to customers that our
energy efficiency projects will satisfy
agreed-upon
performance standards upon installation or achieve specified
increases in energy efficiency. In most cases, the forecasted
lifetime energy and operating cost savings of the energy
efficiency measures we install will defray all or almost all of
the cost of such measures. In many cases, we assist customers in
obtaining third-party financing for the cost of constructing the
facility improvements, resulting in little or no upfront capital
expenditure by the customer. After a project is complete, we may
operate, maintain and repair the customers energy systems
under a multi-year O&M contract, which provides us with
recurring revenue and visibility into the customers
evolving needs.
We also serve certain customers by developing and building
small-scale renewable energy plants located at or close to a
customers site. Depending on the customers
preference, we will either retain ownership of the completed
plant or build it for the customer. Most of our plants have to
date been constructed adjacent to landfills and use LFG to
generate energy. Our largest renewable energy plant is currently
under construction and will use biomass as the source of energy.
In the case of the plants that we own, the electricity, thermal
energy or processed LFG generated by the plant is sold under a
long-term supply contract with the customer, which is typically
a utility, municipality, industrial facility or other large
purchaser of energy. We also sell and install PV panels and
integrated PV systems that convert solar energy to power. By
enabling our customers to procure renewable sources of energy,
we help them reduce or stabilize their energy costs, as well as
realize environmental benefits.
We provide our services primarily to governmental, educational,
utility, healthcare and other institutional, commercial and
industrial entities. Since our inception in 2000, we have served
more than 2,000 customers.
Our revenue has increased from $20.9 million in 2001, our
first full year of operations, to $428.5 million in 2009.
We achieved profitability in 2002 and have been profitable every
year since then.
As of December 31, 2009, we had backlog of approximately
$590 million in future revenue under signed customer
contracts for the installation or construction of projects,
which we expect to be recognized over the period from 2010 to
2013, and we had been awarded, but not yet signed customer
contracts for,
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projects with estimated total future revenue of an additional
$700 million over the same period. We also expect to
realize recurring revenue both under long-term O&M
contracts and under energy supply contracts for renewable energy
plants that we own. See Risk Factors We may
not recognize all revenue from our backlog or receive all
payments anticipated under awarded projects and customer
contracts.
Industry
Overview
Energy efficiency companies, sometimes referred to as energy
services companies, or ESCOs, develop, install and arrange
financing for projects designed to improve the energy efficiency
of buildings and other facilities. Typical products and services
offered by energy efficiency companies include boiler and
chiller replacement, HVAC upgrades, lighting retrofits,
equipment installations,
on-site
cogeneration, renewable energy plants, load management, energy
procurement, rate analysis, risk management and billing
administration. Energy efficiency companies often offer their
products and services through ESPCs. Under these contracts,
energy efficiency companies assume certain responsibilities for
the performance of the installed measures, under assumed
conditions, for a portion of the projects economic
lifetime.
Energy
Efficiency
The market for energy efficiency services has grown
significantly, driven largely by rising and volatile energy
prices, advances in energy efficiency and renewable energy
technologies, governmental support for energy efficiency and
renewable energy programs and growing customer awareness of
energy and environmental issues. End-users, utilities and
governmental agencies are increasingly viewing energy efficiency
measures as a cost-effective solution for saving energy,
renewing aging facility infrastructure and reducing harmful
emissions.
According to a 2008 Frost & Sullivan report, as shown
in the table below, activity by ESCOs in the North American
market for energy management services, including energy
efficiency, demand response and other services, grew at a
compound annual growth rate, or CAGR, of 22% from 2004 through
2008, with the estimated size of the market reaching more than
$5 billion in 2008:
In a 2009 report, McKinsey & Company estimated that
energy savings worth $1.2 trillion are available if the full
amount of economically viable and commercially available energy
efficiency potential is implemented in the United States through
2020, which would require upfront investment of
$520 billion.
In 2008, Frost & Sullivan estimated that government
and institutional facilities accounted for approximately 60% of
energy management services revenue, with commercial and
industrial customers accounting for 32% of the market and
residential customers accounting for the balance. While we
expect these existing U.S. markets will continue to grow,
we also believe that the international markets provide
opportunities for significant additional growth. For example,
Frost & Sullivan in its 2008 report estimated that
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the spending for energy efficiency measures outside North
America will reach approximately $216 billion over the
ensuing four to five years.
The U.S. federal government has over the past decade
significantly increased its interest in and spending on energy
efficiency measures. Legislation authorizing federal agencies to
enter into ESPCs was originally passed in 1992, and in 2007,
three years after the sunset of the original legislation,
Congress passed new ESPC legislation without a sunset provision.
As of the end of 2009, ESPCs have been awarded by 19 different
federal agencies and departments in 48 states, resulting in
more than 485 federal energy efficiency projects cumulatively
worth $2.7 billion. In December 2008, the
U.S. Department of Energy awarded new IDIQ contracts that
permit 16 companies to propose and procure ESPCs with
federal agencies. Of these 16 companies, only two are
independent companies not affiliated with an equipment
manufacturer, utility or fuel company.
There are three principal types of energy efficiency companies:
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Independent Energy Services Companies
Energy
efficiency companies not associated with an equipment
manufacturer, utility or fuel company. Most of these companies
are small and focus either on a specific geography or specific
customer base.
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Utility-Affiliated Energy Services Companies
Companies owned by regulated North American utilities, many of
which were traditionally focused on the service territories of
their affiliated utilities. Many of these companies have since
expanded their geographical markets. Examples include
Constellation Energy Projects and Services and ConEdison
Solutions.
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Equipment Manufacturers
Companies owned by
building equipment or controls manufacturers. Many of these
companies have a national presence through an extensive network
of branch offices. Examples include Honeywell, Johnson Controls
and Siemens.
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Renewable
Energy
Utilities and large purchasers of energy are increasingly
seeking to use renewable sources of energy, such as LFG, wind,
biomass, geothermal and solar, to reduce or stabilize their
energy costs, meet regulatory mandates for use of renewable
energy, diversify their fuel sources and realize environmental
benefits, such as the reduction of greenhouse gas emissions.
According to the International Energy Agency, utilities
worldwide are expected to increase their overall renewable
generation capacity as a percentage of their overall capacity
from less than four percent in 2007 to 13% in 2030.
Industry
Trends
We believe the following trends and developments are driving the
growth of our industry.
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Rising and Volatile Energy Prices.
Over the past
decade, energy-linked commodity prices, including oil, gas, coal
and electricity, have all increased and exhibited significant
volatility. From 1999 to 2009, average U.S. retail electricity
prices have increased by more than 50%. Over an
18-month
period from January 2007 to July 2008, oil prices increased by
almost 200%. According to the U.S. Energy Information
Administration, or EIA, oil prices are expected to increase by
approximately 115% from 2009 to 2035 and electricity prices are
expected to increase by approximately six percent annually over
the same time period. We believe that rising energy prices
combined with significant volatility have resulted in growing
demand for energy efficiency measures that reduce energy usage
and for sources of renewable energy that can stabilize energy
costs.
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Potential of Energy Efficiency Measures to Significantly
Reduce Energy Consumption
. According to the EIA,
U.S. energy demand is expected to increase nearly twofold
from 2010 to
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2035 in the absence of any improvements in energy efficiency,
but the implementation of energy efficiency measures can
significantly reduce energy consumption, as shown below:
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Total
U.S. Energy Consumption
According to a July 2009 report by McKinsey & Company,
economically viable and commercially available energy efficiency
measures, if fully implemented, have the potential to save more
than one trillion kWh of electricity, or 23% of overall U.S.
demand, by 2020.
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Aging and Inefficient Facility Infrastructure.
Many
organizations continue to operate with an energy infrastructure
that is significantly less efficient and cost-effective than
that now available through more advanced technologies applied to
lighting, heating, cooling and other building systems. As these
organizations explore alternatives for renewing their aging
facilities, they often identify multiple areas within their
facilities that could benefit from the implementation of energy
efficiency measures, including the possible use of renewable
sources of energy. According to a July 2009 report by
McKinsey & Company, increased energy efficiency
through facility renewal of government buildings, community
infrastructure and existing homes in the United States
represents a $76 billion market opportunity through 2020,
and could result in energy savings of $174 billion over the
same period.
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Increased Focus on Cost Reduction.
The current
economic environment has led many organizations to search for
opportunities to reduce their operating costs. There has been a
growing awareness that reduced energy consumption presents an
opportunity for significant long-term savings in operating costs
and that the installation of energy efficiency measures can be a
cost-effective way to achieve such reductions.
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Movement Toward Industry Consolidation.
As energy
efficiency solutions continue to increase in technological
complexity and customers look for service providers that can
offer broad geographic and product coverage, we believe smaller
niche energy efficiency companies will continue to look for
opportunities to combine with larger companies that can better
serve their customers needs. In addition, we believe
utilities will continue to consider divesting their energy
management services divisions, in part because of the potential
conflicts between the interests of an energy provider and the
interests of a provider of energy efficiency services. Increased
market presence and size of energy efficiency companies should,
in turn, create greater customer awareness of the benefits of
energy efficiency measures.
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Increased Use of Third-Party Financing.
Many
organizations desire to use their existing sources of capital
for core investments or do not have the internal capacity to
finance improvements to their energy infrastructure. These
organizations often require innovative structures to facilitate
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the financing of energy efficiency and renewable energy
projects. Customers seeking to upgrade or renew their energy
systems are increasingly seeking to enter into ESPCs or other
creative arrangements that facilitate third-party financing for
their projects.
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Increasing Legislative Support and Initiatives.
In
the United States and Canada, federal, state, provincial and
local governments have enacted and are considering legislation
and regulations aimed at increasing energy efficiency, reducing
greenhouse gas emissions and encouraging the expansion of
renewable energy generation. Examples of such legislation and
regulation are:
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Federal.
In 2007, the United States enacted the
Energy Independence and Security Act which mandates that federal
buildings reduce energy consumption by 30% by 2015 compared to
their 2003 baseline and contains multiple provisions promoting
long-term ESPCs. The U.S. Department of Energy also has a
number of research, development, grant and financing
programs most notably the DOE Loan Guarantee
Program to encourage energy efficiency and renewable
energy. Additionally, the United States has adopted federal
incentives for renewable energy, including the production tax
credit, investment tax credit and accelerated depreciation.
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States.
At the U.S. state level, significant
measures to support energy efficiency and renewable energy have
been implemented, including as of December 31, 2009, the
following:
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20 states have adopted energy efficiency resource
standards, or EERS, and long-term energy savings targets for
utilities.
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29 U.S. states and the District of Columbia have renewable
portfolio standards, or RPS, in place, and six states have
renewable portfolio goals.
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14 states have passed legislation enabling a new financing
mechanism known as Property Assessed Clean Energy (PACE) Bonds.
The bonds provide funds that can be used by commercial and
residential property owners to finance efficiency measures and
small-scale renewable energy systems.
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The U.S. Senate and House of Representatives have passed
various forms of EERS and RPS legislation and, if enacted, all
50 states would have additional incentives to support
energy efficiency and renewable energy.
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Canada.
The federal, provincial and local
governments have also provided incentives for the development of
energy efficiency and renewable energy projects, and facility
renewal. In 2010, the federal government announced its 2020
greenhouse gas emissions reduction target under the Copenhagen
Accord, a 17% reduction from 2005 levels, subject to adjustment
to remain consistent with the U.S. target. In 2009, Ontario
and Quebec both passed enabling legislation to establish
cap-and-trade
programs, which aim at reducing emissions by 15% below 1990
levels by 2020 and 20% by 2020, respectively. Ontario also
passed the Green Energy and Green Economy Act in May 2009 to
expand renewable energy production, encourage energy
conservation and create green jobs. The act established a
feed-in tariff
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program with pricing incentives to encourage the development of
renewable energy. Similarly, British Columbia has also passed
enabling legislation to establish a
cap-and-trade
program and a greenhouse gas reduction target of at least 33%
below 2007 levels by 2020. Under the federal Economic Action
Plan, the federal government has committed to multi-year
expenditures of $4 billion for new infrastructure funding,
and has established program funds of $1 billion for
sustainable energy and other green projects and $2 billion
to repair, retrofit and expand facilities at post-secondary
institutions.
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Economic Stimuli.
Governments worldwide have
allocated significant portions of economic stimuli to clean
energy. The American Recovery and Reinvestment Act of 2009
allocated $67 billion to promote clean energy, energy
efficiency and advanced vehicles. Additionally, the Emergency
Economic Stabilization Act instituted a grant program that
provides cash in lieu of the investment tax credit for eligible
renewable energy generation sources which commence construction
in 2010.
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These trends and developments are contributing to the growth of
the market for energy efficiency and renewable energy solutions
and create opportunities for energy efficiency companies that
can provide the comprehensive range of services and deep level
of expertise necessary to cost-effectively meet customers
energy and facility renewal needs.
The
Ameresco Solution
Amerescos solutions enable customers to increase energy
efficiency, reduce costs and realize environmental benefits. Our
comprehensive set of services addresses almost all aspects of
purchasing and using energy within a facility. We have
significant in-house expertise in identifying, designing and
installing the improvements necessary to enhance the energy
efficiency of a facility. As an independent company unaffiliated
with any specific equipment manufacturer or utility, we have the
freedom and flexibility to be objective in selecting, purchasing
and integrating the particular systems best suited for a
facilitys infrastructure.
We can reduce our customers energy costs in several ways.
The energy efficiency measures that we design, install and
manage, such as boilers, chillers, lighting systems and control
systems, can reduce the usage of energy and water, thereby
significantly reducing operating costs. By upgrading aging
facilities, we can also significantly reduce ongoing O&M
costs. In addition, customers buying energy from our renewable
energy plants can reduce or stabilize their energy prices under
10- to
20-year
supply contracts with us. We also sell and install equipment,
such as solar energy products, that enable customers to benefit
from federal and state tax credits and other governmental
incentives.
Most customers undertaking an energy efficiency project desire
to minimize their upfront costs and overall cost of system
ownership. We assist customers in achieving their economic
objectives by helping to arrange third-party financing, which
often results in little or no upfront capital expenditure by the
customer. By committing that our energy efficiency measures will
achieve specified performance standards upon installation or
specified increases in energy efficiency over a multi-year
period, we enable our customers to reduce the risk that the
systems we install will not achieve forecasted energy usage
savings. In most cases, the forecasted lifetime savings of the
energy efficiency measures we install will defray all or almost
all of the cost of such measures. For customers desiring to
procure renewable energy sources, we provide financing
flexibility by offering either to build a small-scale renewable
energy plant that will be owned and financed by the customer
itself or to build and finance a plant that we will own and that
will supply energy or gas to the customer under a long-term
contract.
Our solutions also assist our customers in achieving their
environmental goals and, in the case of governmental customers,
complying with federal and state energy efficiency and emission
reduction mandates. Our energy efficiency improvements enable
customers to achieve environmental benefits both by reducing
their energy and water usage and by reducing their reliance on
conventional energy sources. Customers procuring electricity,
thermal energy or processed gas from the renewable energy plants
that we construct can further reduce their emissions of
greenhouse gases and other pollutants.
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Our
Competitive Strengths
We believe our competitive strengths include the following:
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One-Stop, Comprehensive Service Provider.
We offer
our customers expertise in addressing almost all aspects of
purchasing and using energy within a facility. Our experienced
project development and engineering staff provide us with the
capability and flexibility to determine the combination of
energy efficiency measures that is best suited to achieve the
customers energy efficiency and environmental goals. Our
solutions range from smaller projects, such as a lighting system
retrofit, to larger and more complex projects comprising new
heating, cooling and electrical infrastructure, solar panels and
a small-scale renewable energy plant serving multiple buildings.
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Independence.
We are an independent company with no
affiliation to any equipment manufacturer, utility or fuel
company. Unlike affiliated service companies, we have the
freedom and flexibility to be objective in selecting particular
products and technologies available from different
manufacturers. By bundling components from multiple sources, we
can optimize our solution for customers particular needs.
In addition, we can leverage the high volume of equipment
purchases that originate across our North American operations to
obtain attractive pricing terms that enable us to provide
cost-effective solutions to our customers.
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Strong Customer Relationships.
We have served over
2,000 customers since our inception, including over 1,000
customers in 2009. The sales, design and construction process
for energy efficiency and renewable energy projects typically
takes from 12 to 36 months, during which time our engineers
work closely with the customer to ensure a successful
installation. For certain projects, we enter into a multi-year
O&M contract under which we have personnel
on-site
monitoring and controlling the customers energy systems.
Our services include helping customers procure energy and
managing their utility bill payment processes. All of these
design, engineering and support activities foster a close
relationship with our customers, which positions us to identify
their future needs and provide additional services to them. For
example, for a single federal facility, we have completed three
separate projects over the period from 2005 to 2009.
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Creative Solutions.
We seek to provide innovative
solutions to meet our customers energy efficiency,
facility renewal and environmental goals. Our engineering staff
has expertise in a broad range of technologies and energy
savings strategies encompassing different types of electrical,
heating, cooling, lighting, water, renewable energy, and other
facility infrastructure systems. We are constantly seeking to
identify new services, products and technologies that can be
incorporated into our energy efficiency and renewable energy
solutions to enhance their performance. We apply this expertise
to design and engineer innovative solutions customized to meet
the specific needs of each client. We also have an internal
structured finance team that is skilled and experienced in
arranging third-party financing for our customers projects.
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Strong National and Local Presence.
We have a
nationwide presence in both the United States and Canada and
serve certain of our customers in European locations. We
maintain a centralized staff of engineering, financial and legal
personnel at our headquarters in Massachusetts, who provide
support to our seven regional offices and 46 other field offices
located throughout the United States and Canada. We leverage our
centralized resources and local offices by sharing experiences
and best practices across the offices. We are able to maintain
an entrepreneurial approach toward our customers by delegating
significant responsibility to our regional offices and making
them accountable for their own operational and financial
performance. We believe that our organizational structure
enables us to be fast, flexible and cost-effective in responding
to our customers needs.
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Experienced Management and Operations Team.
Our
executive officers have an aggregate of over 150 years of
experience in the energy efficiency field. Some have worked
together for over
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15 years and most have worked together at Ameresco for over
five years. In addition, we have accumulated significant
in-house expertise in our sales, engineering, financing, legal,
construction and operations functions. As of December 31,
2009, we employed over 200 engineers, whose experience with
respect to fuels, rates, technologies and geography-specific
regulation and economic benefits enables us to propose and
design energy efficiency solutions that take into account the
economic, technological, environmental and regulatory
considerations that we believe underlie the cost efficiencies
and operational success of a project. Many of our employees were
previously employed by utilities, construction companies,
financial institutions, engineering firms, consultancies and
government agencies, which provides them with specialized
experience in solving problems and creating value for our
customers.
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Federal and State Qualifications.
The federal
governmental program under which federal agencies and
departments can enter into ESPCs requires that energy service
providers have a track record in the industry and meet other
specified qualifications. Over 20 states require similar
qualifications to do business with state agencies and, in
certain cases, with other governmental agencies in the state. In
2008, we renewed our IDIQ qualification under the
U.S. Department of Energy program for ESPCs, and we are
currently qualified to enter into ESPCs in most states that
require qualification. Our projects accounted for almost half of
the total dollar amount of published task orders issued under
the Department of Energys IDIQ program for ESPCs in fiscal
2009. The scope of our qualifications provides us with the
opportunity to continue to grow our business with federal, state
and other governmental customers and differentiates us from
energy efficiency companies that have not been similarly
qualified.
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Integration of Strategic Acquisitions.
We have a
track record of completing over ten acquisitions that have
enabled us to broaden our offerings, expand our geographical
reach and accelerate our growth. We follow a disciplined
approach in evaluating and valuing potential acquisition
candidates and frequently improve their operating performance
significantly following our acquisition. Our acquisition of the
energy services business of Duke Energy in 2002 expanded our
geographical reach into Canada and the southeastern United
States, and enabled us to penetrate the federal government
market for energy efficiency projects. Our acquisition of the
energy services business of Northeast Utilities in 2006 further
grew our capability to provide services for the federal market
and in Europe. Our acquisition of Southwestern Photovoltaics in
2007 significantly expanded our offering of solar energy
products and services. We believe that our ability to offer a
comprehensive set of energy efficiency services across North
America has been, and will continue to be, enhanced by our
expertise in identifying and completing acquisitions that expand
our service offerings, as well as by our ability to integrate
and leverage the skilled engineering, sales and operational
personnel that come to us through these acquisitions.
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Strategy
Our goal is to capitalize on our strong customer base and broad
range of service offerings to become the leading provider of
comprehensive energy efficiency and renewable energy solutions.
Key elements of our strategy include the following:
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Pursue Organic Growth.
We plan to grow primarily by
leveraging our core expertise in designing, engineering and
installing energy efficiency solutions to reach additional
customers in our target markets. To achieve this goal, we plan
to open additional local offices in the regions we currently
serve, as well as hire additional sales personnel. We also plan
to expand geographically by opening new offices in regions we do
not currently serve in the United States and Canada, as well as
in Europe.
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Continue to Maintain Customer Focus.
Our success
will continue to depend in large part on our ability to
understand and meet our customers energy infrastructure
requirements. We will
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maintain an entrepreneurial approach toward our customers and
remain flexible in designing projects tailored specifically to
meet their needs. We will also continue to monitor and explore
alternative services, products and technologies that might offer
improved system performance and will seek to design and engineer
innovative solutions for our customers.
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Expand Scope of Product and Service Offerings.
We
believe the breadth of our services differentiates us from our
competitors. We plan to continue to expand our offerings by
including new types of energy efficiency services, products and
improvements to existing products based on technological
advances in energy savings strategies, equipment and materials.
Examples of services that we have added to complement our energy
efficiency services include asset planning, new construction,
waste reduction, water conservation, demand response, management
of utility and non-utility invoices and web-based software for
tracking of a customers carbon footprint, electrical
distribution upgrades, meters with communication capabilities,
transformer replacements and power factor correction. Through
our acquisition of Southwestern Photovoltaics in 2007, we
significantly expanded our offering of solar energy products,
which enabled us both to integrate solar solutions into broad
energy efficiency projects and to target projects based
specifically on solar energy. We plan to seek similar
opportunities to broaden our offerings of complementary products
and services.
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Meet Market Demand for Cost-Effective,
Environmentally-Friendly Solutions.
We believe that
addressing climate change will remain a global theme for
governmental, institutional and commercial organizations.
Through our energy efficiency measures and small-scale renewable
energy plants and products, we enable customers to conserve
energy and reduce emissions of carbon dioxide and other
pollutants. We plan to continue to focus on providing
sustainable energy solutions that will address the growing
demand for products and services that create environmental
benefits for customers.
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Increase Recurring Revenue.
We intend to continue to
seek opportunities to increase our sources of recurring revenue.
For many of our energy efficiency projects, we enter into
multi-year O&M contracts, and we plan to continue to grow
both the number and scope of such contracts. We also obtain
recurring revenue from sales of electricity, thermal energy and
gas generated by the small-scale renewable energy and central
plants that we construct and own, and we plan to continue to
seek opportunities to construct such plants based on LFG,
biomass, biogas, solar, wind, geothermal and other sources of
energy.
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Grow through Select Strategic Acquisitions.
We have
been able to accelerate the expansion of our service offerings,
customer base and geographic reach through targeted
acquisitions. We will continue to follow a disciplined approach
in evaluating and valuing potential acquisition candidates. We
plan to pursue complementary acquisitions that will enable us to
both expand geographically in North America and abroad, and
broaden our product and service offerings.
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Amerescos
Products and Services
We offer a comprehensive set of services that includes the
design and installation of upgrades to a facilitys energy
infrastructure, the design and construction of renewable energy
plants, the sale of other renewable energy products and the
arranging of financing for customer projects.
Energy
Efficiency Services
Our services typically includes the design, engineering and
installation of, and the arranging of financing for, equipment
to improve the efficiency, and control the operation, of a
buildings heating, ventilation, cooling and lighting
systems. In certain projects, we also design and construct a
central plant or cogeneration system providing power, heat
and/or
cooling to a building. Our projects generally range in size and
scope from a one-month project to design and retrofit a lighting
system to a more complex
30-month
project to design and install a central plant or cogeneration
system.
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At the commencement of a project, we typically evaluate the
customers energy needs and opportunities to reduce costs.
We start by reviewing and analyzing the customers utility
and other energy bills, using in complex cases our proprietary
AXIS software for bill scanning and analyses. Our in-house
personnel can, for example, analyze whether a customer is
eligible for lower rates in a different utility rate class. Our
experienced engineers then review and assess the customers
current energy systems and determine how to optimize federal,
state or local energy, utility and environmental-based payments
or credits available for usage reductions or renewable power
generation. Upon customer approval of a project, our engineers,
with the assistance in some cases of local or specialized
engineers, design and engineer the project.
Energy Efficiency Measures
In designing a project for a customer, we typically include a
combination of the following energy efficiency measures:
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Boilers and Furnaces.
We replace low efficiency
boilers and furnaces with higher efficiency equipment. In
addition, to reduce emissions, we can install emissions controls
or either modify existing equipment or install new equipment to
use cleaner fuels. We can also install biomass boilers for
customers that have access to organic materials, such as waste
from agricultural or food processing activities.
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Chillers.
Small buildings are cooled by air
conditioners and large buildings are cooled by chillers. We
replace older low efficiency chillers with new higher efficiency
chillers capable of delivering the same cooling with less energy
input, often eliminating the use of atmospheric ozone depleting
chlorofluorocarbon-based refrigerants in the process. We
retrofit existing chillers with new, more sophisticated,
automated controls, high efficiency motors and variable speed
drives to improve efficiency in cases where complete equipment
replacement is not necessary. If the customer has an
on-site
source of recoverable waste heat, we may replace an electric
chiller with an absorption chiller that can utilize the waste
heat to directly produce cooling with reduced need to purchase
energy for chiller operation.
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Central Plants.
Customers that have multiple
buildings in close proximity on a site may benefit from
installation of a single central plant to provide power, heat or
cooling to these buildings. The central plant typically contains
multiple large boilers, chillers or combined heat and power, or
CHP, systems to handle the combined requirements of all site
buildings. Pipes are installed to distribute steam, hot water or
chilled water from the central plant to the individual
buildings. Any centrally generated power is delivered via
interconnection with the existing site-wide electrical
distribution system. A central plant allows the multiple smaller
and less energy efficient individual building heating and
cooling plants to be decommissioned. In addition to improved
energy efficiency, centralization can create other scale
benefits in operating labor, equipment maintenance and operating
reliability. Where a customer already has a central plant, we
can improve the efficiency of the plant by implementing improved
equipment controls and by retrofit or replacement of existing
equipment for enhanced energy efficiency.
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Cogeneration or Combined Heat and Power.
CHP systems
produce both heat and power simultaneously at a customer site,
displacing power purchases from the utility grid and
conventional sources of heat generation at the customer
facility. When utilities produce power at large central station
plants, the heat produced as a byproduct of the power generation
process is typically wasted via disposal to the atmosphere or a
nearby waterway. This wasted heat is generally a majority of the
energy value of the input fuel to the power generation process.
With on site power generation, the waste heat can be recovered
from the power generation process and used as a substitute for
heat that would otherwise be generated using site purchased
fuels. Through use of heat driven chillers, also known as
absorption chillers, this recovered heat can also be employed to
provide building cooling. For facilities with large and
relatively constant needs for power and heat or cooling, the
cost of fuel for the cogeneration system operation can often be
less than the cost of the purchased utility power and
conventional heating fuel that is
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displaced. Installing a CHP that uses a lower-cost fossil fuel
or a renewable fuel source can create further economic benefits.
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Energy Management Systems.
Automating building
system adjustments for optimum performance under changing
building operating conditions is one of the most cost effective
energy saving strategies. We install energy management system,
or EMS, projects consisting of small computers, wiring or
wireless communication systems, and sensors and controllers
located at energy-using equipment and at locations that need
monitoring for such conditions as temperature and flow.
Equipment that may be controlled through an energy management
system includes lights, boilers, chillers, and fans and pumps
that move energy throughout a building. We program the computers
to automatically turn the equipment on and off or to adjust
equipment operating setpoints for lower energy use in response
to monitored conditions. For example, when the outdoor air is
cool and the building requires cooling, instead of turning on
the chillers to cool the building, the EMS may turn on building
fans to draw the cool outside air into the building and
significantly reduce the energy use under that condition. Both
we and the customer can access the EMS information through a
personal computer and reprogram the energy-saving strategies
through secure, hard-wired or web-based communications systems.
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Lighting.
We replace lighting system components with
more efficient components in both indoor and outdoor lighting
systems. We may alternatively redesign and install a new
lighting system. Typical measures include replacing incandescent
lighting with compact fluorescent lighting, metal halide
lighting with fluorescent lighting and low efficiency
fluorescent lighting with higher efficiency fluorescent
lighting. Also, lighting controls may be installed to turn off
lights when the lit space is unoccupied or if natural light
through windows or skylights is adequate.
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Retro-commissioning.
Over time, the performance of
building systems can degrade due to a variety of factors, such
as a failure of dampers, actuators and switches to operate in
accordance with the building control system or modifications to
equipment without taking into account their interaction with
other building systems. Cumulatively, these factors can lead to
significant increased energy consumption and reduce the quality
of the indoor environment. Through a retro-commissioning
process, we systematically repair and restore building equipment
and systems so that they function together in an optimal manner
to enhance overall building performance.
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Motors.
The energy cost over the life of a motor is
often many times the original cost of the motor. We replace
older low efficiency motors with new higher efficiency motors.
Often, motors are over-sized for the application and additional
savings can be attained by replacing an existing motor with an
appropriately sized motor. We may also replace the sheave and
belt drives associated with motors so that the motor output is
transmitted to the driven device with reduced energy loss.
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Variable Speed Drives or Variable Frequency
Drives.
Motors driving building equipment such as fans,
pumps, chillers and elevators are typically selected and
operated at the size and speed necessary to deliver services
under worst case or peak load conditions. This causes
inefficiencies when operating at less than peak load conditions.
We install electronic devices called variable speed drives, or
VSDs, that automatically adjust the characteristics of the power
supplied to a motor so that the motor is operated at only the
speed necessary to meet the load conditions at any time.
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Electric Load Shaping.
Many customers pay an energy
charge per kWh of electricity used and a demand charge based on
their highest or peak use of electricity in a 15 minute period
during the month. By installing an EMS or an
on-site
generator and controlling the system using our monitoring and
analysis of the customers electricity use, we can reduce
the customers peak electricity use and thus its demand
charge. We may also shift energy use from expensive on-peak
(weekday) periods to less expensive off-peak periods (nights and
weekends). For example, by adding chilled water storage tanks to
a facility, cooling systems can be operated at night to
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generate stored chilled water and the chilled water can then be
withdrawn to cool the building during the next day without
operating the cooling equipment during daytime peak periods.
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Utility Rate Reductions.
A customers cost of
gas and electricity is a function of how much energy is used and
what rate the customer is charged for the energy. We analyze a
customers energy use and the various utility rates that
the customer is eligible to select. By switching a customer to
the optimal rate, the customer can typically save energy costs.
We may be able to switch a customer into a better rate by
installing an EMS or an
on-site
generator.
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Geothermal Heat Pumps.
Heat pumps are designed to
efficiently provide both heat and cooling to a facility. The
geothermal heat pump system works to store and recapture energy
from the ground on a seasonally advantageous basis. Beneath the
surface, the earth is warmer than the air in winter and cooler
than the air in summer. Using the heat pump, heat removed from a
building to cool it during the summer can be stored in the
ground. This stored heat can then be withdrawn by the heat pump
in the winter to provide necessary building heating. We install
piping loops in the ground and heat pumps in buildings. Water
piped underground captures the stored geothermal energy and heat
pumps deliver the energy efficiently to the building interior.
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Window Replacement.
Existing windows are often the
most inefficient component of a building envelope. We may
replace existing inefficient windows with new windows with
features that more effectively control the sources of window
heat transfer.
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Roofs.
An existing roof with inadequate insulation
levels or with water damage compromising the effectiveness of
insulation is a source of unnecessary energy waste. We replace
existing roofs with new roofs with higher insulation levels to
reduce heat losses in winter and heat gains in summer. We may
employ membrane roof technology for better protection of the
insulation against degradation.
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Insulation.
Insulating materials reduce unwanted
transfer of heat that can increase energy usage. We apply
additional insulation to building shell components, such as
walls, ceilings, floors and foundations, to reduce heat loss in
winter and heat gain in summer. We may add to or fully replace
existing insulation on equipment such as piping, storage tanks
and heat exchangers to reduce energy losses and the equipment
inefficiency that results from these losses.
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Asset Planning.
Asset planning tools enable
organizations to identify and prioritize current and future
facility renewal requirements and associated capital-investment
needs. We have developed software that helps organizations
measure the condition of their facilities, the costs necessary
to improve the facilities and make them more energy efficient
and the funding alternatives for any such improvements. Our
asset planning tools enable customers to develop facility
renewal plans that will effectively leverage their available
sources of capital and meet their future needs.
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Demand Response and Demand-Side Management.
Electric
utilities and regional or independent system operators, or ISOs,
are responsible for ensuring that power is available at all
times throughout a regions electrical transmission and
distribution system. It is expensive to provide power during
peak times such as a hot summer afternoon when customers are
turning on their air conditioners and chillers. Utilities and
ISOs seek to reduce the peak load demand and are willing to pay
customers to reduce their power usage at these times, either
during pre-arranged hours or in response to a call to reduce
power. We help utilities and ISOs to attract customers to their
programs and coordinate the customers participation in the
programs. Typically we enter into a contract with a utility or
ISO, market the program to customers, and share contract
payments with the customers.
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Utility Data Management.
We have developed
proprietary software and systems that allow us to efficiently
collect, optically scan, enter into a data base and perform
analysis on information from customer utility bills. Using these
systems, we can deliver a variety of services, including
centralized and automated collection, processing and preparation
for payment of utility billing information; identification of
errors in utility metering or billings; aggregation of multiple
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location billings from a single utility to facilitate payment;
modeling of available utility tariff rates against a database of
historical energy use to identify the most economical rate; and
analysis of utility use data in multiple ways to identify and
report usage and cost trends, variances and performance relative
to benchmarks.
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Carbon Emissions Tracking.
Our carbon management
program provides greenhouse gas, or GHG, emissions accounting
and reporting services to our customers. With an international,
multi-tiered approach, we can support a wide variety of GHG
accounting and reporting standards, including utility-based GHG
and full ISO 14064 compliance reporting. This service helps
customers, for example, to develop corporate social
responsibility reports and prepare for an audit of their GHG
emissions.
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We typically purchase the equipment for our projects either from
local vendors or, in certain cases, from vendors with which we
have a company-wide relationship. Our large volume of equipment
purchases enables us to achieve cost-efficiencies with our
significant vendors. In most cases, we use local subcontractors
to install the purchased equipment in accordance with our design
and under the supervision of our project manager.
Customer
Arrangements
For our energy efficiency projects, we typically enter into
ESPCs under which we agree to develop, design, engineer and
construct a project and also commit that the project will
satisfy
agreed-upon
performance standards that vary from project to project. These
performance commitments are typically based on the design,
capacity, efficiency or operation of the specific equipment and
systems we install. Our commitments generally fall into three
categories: pre-agreed, equipment-level and whole
building-level. Under a pre-agreed energy reduction commitment,
our customer reviews the project design in advance and agrees
that, upon or shortly after completion of installation of the
specified equipment comprising the project, the commitment will
have been met. Under an equipment-level commitment, we commit to
a level of energy use reduction based on the difference in use
measured first with the existing equipment and then with the
replacement equipment. A whole building-level commitment
requires demonstration of energy usage reduction for a whole
building, often based on readings of the utility meter where
usage is measured. Depending on the project, the measurement and
demonstration may be required only once, upon installation,
based on an analysis of one or more sample installations, or may
be required to be repeated at agreed upon intervals generally
over periods of up to 20 years.
Under our contracts, we typically do not take responsibility for
a wide variety of factors outside our control and exclude or
adjust for such factors in commitment calculations. These
factors include variations in energy prices and utility rates,
weather, facility occupancy schedules, the amount of
energy-using equipment in a facility, and failure of the
customer to operate or maintain the project properly. Typically,
our performance commitments apply to the aggregate overall
performance of a project and not to individual energy efficiency
measures. Therefore, to the extent an individual measure
underperforms, it may be offset by other measures that
overperform during the same period. In the event that an energy
efficiency project does not perform according to the
agreed-upon
specifications, our agreements typically allow us to satisfy our
obligation by adjusting or modifying the installed equipment,
installing additional measures to provide substitute energy
savings, or paying the customer for lost energy savings based on
the assumed conditions specified in the agreement. Many of our
equipment supply, local design, and installation subcontracts
contain provisions that enable us to seek recourse against our
vendors or subcontractors if there is a deficiency in our energy
reduction commitment. From our inception to December 31,
2009, our total payments to customers and incurred costs under
our energy reduction commitments, after customer acceptance of a
project, have been less than $100,000 in the aggregate. See
Risk Factors We may have liability to our
customers under our ESPCs if our projects fail to deliver the
energy use reductions to which we are committed under the
contract.
The projects that we perform for governmental agencies are
governed by particular qualification and contracting regimes.
Certain states require qualification with an appropriate state
agency as a precondition to performing work or appearing as a
qualified energy service provider for state, county and local
agencies
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within the state. Most of the work that we perform for the
federal government is performed under IDIQ agreements between
government agencies and us or our subsidiaries. These IDIQ
agreements allow us to contract with the relevant agencies to
implement energy projects, but no work may be performed unless
we and the agency agree on a task order or delivery order
governing the provision of a specific project. The government
agencies enter into contracts for specific projects on a
competitive basis. We and our subsidiaries and affiliates are
currently party to an IDIQ agreement with the
U.S. Department of Energy, expiring in 2019, with an
aggregate maximum potential ordering amount of $5 billion.
Payments by the federal government for energy efficiency
measures are based on the services provided and products
installed, but are limited to the savings derived from such
measures, calculated in accordance with federal regulatory
guidelines and the specific contract terms. The savings are
typically determined by comparing energy use and O&M costs
before and after the installation of the energy efficiency
measures, adjusted for changes that affect energy use and
O&M costs but are not caused by the energy efficiency
measures.
Engineering
and Installation Controls
Our engineering and construction quality, schedule and budget
goals are managed through several control processes. We follow
formal processes for the review and approval of the technical
and economic content of all proposals by senior managers. Our
engineers employ standardized, and in some cases proprietary,
software tools for technical and economic analysis to establish
a baseline for quality and accuracy during the development stage
of our projects. We fully review final design, engineering and
construction document preparation efforts at selected
milestones, using internal or subcontracted specialized
engineering resources. During the construction phase, a
construction project management team utilizes a number of tools
to manage quality, cost and schedule. We use agreement
templates, customized to meet the specific technical
requirements of each project, to ensure well defined procedures
and responsibilities to be followed by our equipment suppliers
and labor subcontractors. We use scheduling software to prepare,
regularly update and communicate project schedules at a task
specific level. Inspections of work progress and quality are
conducted throughout the construction process at frequent
internals. Both project managers and senior management use a
computerized project control system throughout the project
delivery process to track actual project costs against project
budgets on a real-time basis. In addition, we employ a
full-time, dedicated safety director who is responsible for
developing and promulgating best practices and training
throughout the organization and working with our regional safety
coordinators to ensure appropriate procedures are in place at
all job sites.
Operations
and Maintenance Services
After a project is completed, we often provide ongoing O&M
services under a multi-year contract. These services include
operating, maintaining and repairing facility energy systems
such as boilers, chillers and building controls, as well as
central power plants. For larger projects, we often maintain
staff
on-site
to
perform these services.
Renewable
Energy Projects and Products
Our services offering includes the development, construction and
operation of, and the arrangement of financing for, small-scale
renewable energy plants, as well as the sale and integration of
solar energy products and systems.
We have constructed and are currently designing and constructing
a wide range of renewable energy plants using LFG, wastewater
treatment biogas, solar, wind, biomass, food waste, animal waste
and hydro sources of energy. Most of our renewable energy
projects to date have involved the generation of electricity
from LFG or the sale of processed LFG. LFG is created by the
action of micro-organisms within a landfill that generate
methane gas as a byproduct of solid waste decay. Generally,
landfills avoid the unsafe build up of methane-containing LFG by
venting it into the atmosphere, or in most cases, by collecting
and flaring it. As methane is suspected of contributing to
global climate change and is regulated as a pollutant, landfill
owners are generally required by environmental laws to collect
and combust LFG, usually in a flare. We purchase the LFG that
otherwise would be combusted or vented, process it, and either
sell it or use it in our energy plants. Electricity that we sell
is generally delivered to the customer at the interconnection of
our plant with the
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electrical grid. The thermal energy that we sell is generally
delivered to the customer at the inlet flange of the thermal
piping located at the customers facilities. The processed
LFG we sell to industrial customers is generally delivered by us
to the customers facility through a pipeline transmission
system that we design, construct and operate. Under our energy
supply agreements, we typically provide all environmental
attributes associated with the project, including those
represented by renewable energy certificates, to the customer.
Depending on the customers preference, we will either
build, own and operate the completed plant or build it for the
customer to own. We generally sell the electricity, gas, heat or
cooling generated by small-scale plants that we own under
long-term contracts, typically to utilities, industrial
facilities or other large users of energy. For an LFG-based
plant, the output will typically be sold under a sales agreement
with a term covering ten to 20 years of plant operation.
The right to use the site for the energy plant, and the purchase
of the renewable energy needed to fuel the plant, are also
obtained under long-term agreements with terms at least as long
as that of the associated output sales agreement. Our projects
are generally designed and permitted by our own engineers,
although we often obtain additional engineering assistance from
consulting engineers. We generally subcontract installation of
project equipment, under the supervision of our construction
manager.
As part of our renewable energy offering, we also distribute and
integrate solar energy products manufactured by several vendors.
We are a distributor of PV panels, solar regulators, solar
charge controllers, inverters, solar-powered lighting systems,
solar-powered water pumps, solar panel mounting hardware and
other system components. We also integrate our PV products and
system components into solar solutions designed specifically for
customers. We provide solar energy solutions for both on-grid
applications where the solar power is used in a building
connected to a utility distribution system, and for off-grid
applications where the power is used directly in the device
using the electricity, such as traffic signs.
We also design and construct renewable energy plants based on
wind power. In many parts of the country, available wind
resources, utility net metering and local incentives can make
on-site
wind
generation a viable solution for meeting a significant portion
of customers energy needs. As of December 31, 2009,
we had completed two projects that included a wind turbine.
In addition, we have constructed, and are constructing,
small-scale renewable energy plants based on biomass. Biomass is
organic material such as wood, agricultural waste, animal waste
and waste from food processors. Biomass is typically converted
to energy by burning or gasifying it in a boiler to produce
steam or gas. Our largest renewable energy plant is currently
under construction and will use biomass as the primary source of
energy.
As of December 31, 2009, we had constructed more than 25
renewable energy plants, and owned and operated 19 renewable
energy plants. Of the owned plants, 18 are renewable LFG plants.
These 18 plants have the capacity to generate electricity or
deliver LFG producing an aggregate of 83 MW (megawatts) or
MWE (megawatt-equivalents). As of December 31, 2009, we had
signed contracts for the construction, operation and ownership
of an additional three LFG plants, two wastewater treatment
biogas plants, two biomass power and cogeneration plants and
five biomass boiler projects. If and when completed, the LFG
plants will be capable of producing an aggregate of
approximately 15 MW or MWE, the biogas plants will be
capable of producing an aggregate of approximately eight MW or
MWE, the biomass power and cogeneration plants will be capable
of producing approximately 21 MWs, and the biomass boiler
projects will be capable of producing approximately
41 million BTU per hour of steam or hot water.
Examples
of Energy Efficiency and Renewable Energy Projects
The following are examples of energy efficiency and renewable
energy projects we have designed and either have installed or
are installing for customers. While most of our projects are
less complex and smaller in scope than those shown below, these
examples are intended to demonstrate how various different types
of energy efficiency measures and renewable energy plants can be
combined to create a customized solution addressing the multiple
needs of a customer.
Elmendorf Air Force Base (Alaska).
Elmendorf Air
Force Base had an inefficient,
costly-to-operate
central heating and power plant and approximately 50 miles
of aging steam and condensate distribution piping. We
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modernized the heating system by demolishing the central plant
and installing over 200 boilers and 20 alternate heating systems
in over 120 commercial facilities. We worked with the local gas
utility to install approximately seven miles of gas pipeline to
serve the new, decentralized boilers and negotiated a new gas
and electric service for the Base with the local utilities. We
also installed over 800 energy efficient steam traps and abated
over 125 steam pits throughout the base. The $49 million
project is designed to save approximately $4 million of
energy and energy-related O&M costs per year. This work was
completed in 2008. We provide a full-time staff of four people
at the base and have contracted to perform approximately
$22 million of fixed price O&M services throughout the
22-year
performance period term of our agreement.
Hill Air Force Base (Utah).
Hill Air Force Base was
seeking to upgrade its inefficient energy systems and maximize
the use of renewable energy sources including using gas from an
off-base landfill to lower its energy costs. In response, during
the period from 2005 to 2009, we designed and installed
$17.7 million of energy efficiency and renewable energy
projects which are designed to save approximately
$2.1 million of energy costs per year. The energy
efficiency projects include the installation of a wide range of
high efficiency lighting, heating and cooling systems and
associated controls for these and other energy-consuming
equipment. The Base also provides compressed air, steam, water
cooling and wastewater treatment services to a nearby industrial
area. We upgraded and control these systems to reduce the
disposal of hazardous materials and the loss of steam, water and
electricity. The renewable energy projects include a 210 kW
ground-mounted solar PV array and an LFG project involving the
purchase of gas from the Davis County landfill, piping the gas
over one mile to the base, processing the gas and producing
approximately 2.25 MW of power. We operate and maintain the
LFG project, the PV project, and the steam traps in the heating
distribution system with an
on-site
operator and the remote support of two engineers for a fixed
price of $0.9 million per year under a 20 year
contract. We believe the PV system was the largest in Utah at
the time it was installed.
State of Missouri Correctional Facilities.
The State
of Missouri and Columbia Water & Light were seeking to
lower and stabilize their energy costs by purchasing thermal
energy and electricity, respectively, from a cogeneration
facility fueled by LFG from the Jefferson City Landfill owned by
a subsidiary of Republic Services, Inc. The State of Missouri
also wanted to upgrade its inefficient energy systems at two
state-owned correctional facilities, Algoa and Jefferson City.
In 2009 we completed the design and installation of
$7.6 million of energy efficiency improvements and the
design, financing and installation of a 3.2 MW
$10.4 million cogeneration facility, which together are
designed to save approximately $0.7 million of energy costs
per year. The energy efficiency measures include the
installation of high efficiency lighting systems, electrical
system improvements, steam traps to reduce steam losses and
controls for various energy-using equipment within the
correctional facilities. The LFG project, which we own,
purchases LFG from Republic, processes the gas and then pipes it
approximately three miles to the Jefferson City Correctional
Facility to use as a fuel source in our cogeneration facility
that produces electricity and thermal energy. Columbia
Water & Light purchases the power at a fixed rate per
kWh for all electricity that is delivered. The State of Missouri
has a take or pay obligation for a minimum amount of thermal
energy at a fixed price.
Porta Community Unit School District
(Illinois).
Porta Community Unit School
District #202 was seeking to lower and stabilize its
operating costs and improve its educational environment. To
achieve this goal, we designed, installed and completed in 2009
a $7.6 million energy efficiency and renewable energy
project, which is designed to save over $0.4 million of
energy and operating costs per year. The project includes energy
efficient lighting retrofits, re-commissioning and upgrade of
the existing heating, ventilation and air conditioning control
system, domestic hot water system upgrades and swimming pool
heating system upgrades. The project also includes the design
and construction of a geothermal heating and cooling system to
heat and cool the building. In addition, we installed a one kW
PV energy system and a 600 kW wind energy generating system.
When the wind turbine generates more electricity than the
district can use, the excess electricity is sold to the local
utility under a net metering arrangement. We believe the
district is the first school district in Illinois to employ a
combination of geothermal, solar and wind renewable technologies.
BMW (South Carolina).
BMW was seeking to lower and
stabilize its energy costs, and Waste Management was seeking to
monetize the value of the LFG produced at its Palmetto Landfill.
To achieve these goals, in 2003, we completed the development,
design, construction and financing for the $11.4 million
project to process and deliver LFG to BMWs factory and
refurbish BMWs boilers and turbines to be able to
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utilize the LFG fuel. BMW also uses the LFG to provide energy
for its paint shop, incinerator and pollution control devices.
This project involves buying LFG from Waste Management at its
Palmetto Landfill, processing and compressing the LFG adjacent
to the landfill and piping the LFG approximately 9.5 miles
for delivery to BMW. Over the period from 2005 to 2009, the
project has delivered from 0.88 to 1.17 million BTU
annually. BMW pays for the LFG under a multi-year supply
contract. Our delivery obligations are limited to those volumes
of LFG supplied to us by Waste Management. In 2009, BMW
announced that the project produces over 60% of the plants
total energy requirements, saving BMW an average of
$5 million in energy costs annually while reducing carbon
dioxide emissions by approximately 92,000 tons per year.
U.S. Department of Energy Savannah River Site (South
Carolina).
The Savannah River Site, or SRS, utilizes
steam and power for process and heating loads currently
generated from an aging and inefficient coal power plant. We are
currently constructing a 20.7 MW cogeneration plant to replace
this coal power plant. The cogeneration plant will use fuel from
forest residue, scrap tires, pallets and other clean wood and is
scheduled to come on-line in December 2011. We will install two
ten million BTU per hour wood-fired heating plants at other SRS
locations to replace an old and inefficient fuel oil heating
plant. These smaller plants are scheduled to come on-line in
November 2010. This $183.4 million project is designed to
save approximately $35 million of energy and energy-related
O&M costs per year. We will provide a full-time staff of 20
to 25 people at the new plant and have contracted to
perform approximately $17 million of O&M services
annually, at escalating fixed rates, throughout the
19-year
performance period of the agreement.
City of Vancouver (British Columbia, Canada).
The
City of Vancouver was seeking to implement a comprehensive
greenhouse gas reduction project in its larger facilities. From
2007 to 2010, we designed and installed two-phases of work, with
an additional third-phase expected to be completed by October
2010. This comprehensive $15.4 million energy efficiency
and facility renewal project includes boiler plant replacements
in 18 facilities, comprehensive lighting upgrades, HVAC
upgrades, solar hot water, desiccant dehumidification and
low-emissivity ceilings and heat recovery in ice rinks. The
project is designed to save $0.9 million per year in energy
costs.
Sales and
Marketing
Our sales and marketing approach is to offer customers
customized and comprehensive energy efficiency solutions
tailored to meet their economic, operational and technical
needs. The sales, design and construction process for energy
efficiency and renewable energy projects typically takes from 12
to 36 months, with sales to federal governmental and
housing authority customers tending to require the longest sales
processes. We identify project opportunities through referrals,
requests for proposals, or RFPs, conferences, web searches,
telemarketing and repeat business from existing customers. Our
direct sales force develops and follows up on customer leads
and, in some cases, works with customers to develop their RFPs.
By working with customers prior to the issuance of an RFP, we
can gain a deeper understanding of the customers needs and
the scope of the potential project. As of December 31,
2009, we had 105 sales people.
In preparation for a proposal, we typically conduct a
preliminary audit of the customers needs and the
opportunity to reduce its energy costs. We start by reading and
analyzing the customers utility and other energy bills. If
the bills are complex or numerous, we employ our proprietary
AXIS software for bill scanning and analysis. Our experienced
engineers visit and assess the customers current energy
systems. Through our knowledge of the federal, state, local
governmental and utility environment, we assess the availability
of energy, utility or environmental-based payments for usage
reductions or renewable power generation, which helps us
optimize the economic benefits of a proposed project for a
customer. If we are awarded a project, we perform a more
detailed audit of the customers facilities, which serves
as the basis for the final specifications of the project and
final contract terms.
For renewable energy plants that are not located on a
customers site or use sources of energy not within the
customers control, the sales process also involves the
identification of sites with attractive sources of renewable
energy, such as a landfill or a site with high wind, and
obtaining necessary rights and governmental permits to develop a
plant on that site. For example, for LFG projects, we start with
gaining control of a LFG resource located close to the
prospective customer. For solar and wind projects, we look for
78
sites where utilities are interested in purchasing renewable
energy power at rates that are sufficient to make a project
feasible. Where governmental agencies control the site and
resource, such as a landfill owned by a municipality, the
customer may be required to issue an RFP to use the site or
resource. Once we believe we are likely to obtain the rights to
the site and the resource, we seek customers for the energy
output of the potential project.
Customers
In 2009, we served more than 1,000 customers in 49 states
in the United States and seven Canadian provinces. Our customers
include government, education, utility, healthcare and other
institutional, industrial and commercial customers. Outside
North America, we have constructed projects for U.S. naval
bases in Europe, and also sell our off-grid PV systems. In 2007,
2008 and 2009, no single customer accounted for more than
ten percent of our total revenue, and in 2009 the largest
20 customers accounted for approximately 37% of our revenue. In
2009, approximately 85% of our revenue was derived from sales to
federal, state, provincial or local governmental entities. Our
20 largest customers in 2009, by revenue, in alphabetical order,
were:
Belleville Township High School District 201 (Belleville,
Illinois)
Bethlehem Pennsylvania Housing Authority (Bethlehem,
Pennsylvania)
Chicago Housing Authority (Chicago, Illinois)
City of Henderson, Nevada
Franklin County, Ohio
Freeport Unified School District (Freeport, New York)
Hamilton-Wentworth District School Board (Hamilton, Ontario)
Hastings Prince Edward District School Board (Belleville,
Ontario)
Los Angeles Community College District
Medical University of South Carolina (Charleston, South Carolina)
Portsmouth Naval Shipyard (Portsmouth, New Hampshire)
Prairie Valley School District (Regina, Saskatchewan)
Providence Housing Authority (Providence, Rhode Island)
Rainbow District School Board (Sudbury, Ontario)
U.S. Department of Energy, Savannah River Site (South
Carolina)
Toronto Community Housing (Toronto, Ontario)
U.S. Army Adelphi Laboratory Center (Maryland)
University City School District (University City, Missouri)
Wolf Branch School District (Swansea, Illinois)
Worcester Housing Authority (Worcester, Massachusetts)
Competition
While we face significant competition from a large number of
companies, we believe few offer the full range of services that
we provide.
Our principal competitors include Chevron Energy Solutions,
Constellation Energy, Honeywell, Johnson Controls, Siemens
Building Technologies and TAC Energy Solutions. We compete
primarily on the basis of our comprehensive, independent
offering of energy efficiency and renewable energy services and
the breadth and depth of our expertise.
For renewable energy plants, we compete primarily with many
large independent power producers and utilities, as well as a
large number of developers of renewable energy projects. In the
LFG market, our principal competitors include national project
developers and owners of landfills which self-develop projects
using LFG from their landfills. For the sale of solar energy
products and systems, we face numerous
79
competitors ranging from small web-based companies that sell
components to PV module manufacturers and other multi-national
corporations that sell both products and systems. We compete for
renewable energy projects primarily on the basis of our
experience, reputation and ability to identify and complete high
quality and cost-effective projects.
In addition, we may also face competition based on technological
developments that reduce demand for electricity, increase power
supplies through existing infrastructure or that otherwise
compete with our energy efficiency and renewable energy projects
and services. We also encounter competition in the form of
potential customers electing to develop solutions or perform
services internally rather than engaging an outside provider
such as us.
Many of our competitors have longer operating histories and
greater resources than we do, and there can be no assurance that
we will continue to be able to compete effectively against our
current competitors or additional companies that may enter our
markets.
Regulatory
Various regulations affect the conduct of our business. Federal
and state legislation and regulations enable us to enter into
ESPCs with government agencies in the United States. The
applicable regulatory requirements for ESPCs differ in each
state and between agencies of the federal government.
Our projects must conform to all applicable electric
reliability, building and safety, and environmental regulations
and codes, which vary from place to place and time to time.
Various federal, state, provincial and local permits are
required to construct an energy efficiency project or renewable
energy plant.
Renewable energy projects are also subject to specific
governmental safety and economic regulation. States and the
federal government typically do not regulate the transportation
or sale of LFG unless it is combined with and distributed with
natural gas, but this is not uniform among states and may change
from time to time. The sale and distribution of electricity at
the retail level is subject to state and provincial regulation,
and the sale and transmission of electricity at the wholesale
level is subject to U.S. federal regulation. While we do
not own or operate retail-level electric distribution systems or
wholesale-level transmission systems, the prices for the
products we offer can be affected by the tariffs, rules and
regulations applicable to such systems, as well as the prices
that the owners of such systems are able to charge. The
construction of power generation projects typically is regulated
at the state and provincial levels, and the operation of these
projects also may be subject to state and provincial regulation
as utilities. At the U.S. federal level, the
ownership, operation, and sale of power generation facilities
may be subject to regulation under PURPA, the FPA and PHUCA.
However, because all of the plants that we have constructed and
operated to date are small power qualifying
facilities under PURPA, they are subject to less
regulation by the FPA, PHUCA and related state utility laws than
traditional utilities.
If we pursue projects employing different technologies or with
electrical capacities greater than 20 MW, we could become
subject to some of the regulatory schemes which do not apply to
our current projects. In addition, the state and federal
regulations that govern qualifying facilities and other power
sellers frequently change, and the effect of these changes on
our business cannot be predicted.
LFG-based power generation facilities require an air emissions
permit, which may be difficult to obtain in certain
jurisdictions. Renewable energy projects may also be eligible
for certain governmental or government-related incentives from
time to time, including tax credits, cash payments in lieu of
tax credits, and the ability to sell associated environmental
attributes, including carbon credits. Government incentives and
mandates typically vary by jurisdiction.
Some of the demand-reduction services we provide for utilities
and institutional clients are subject to regulatory tariffs
imposed under federal and state utility laws. In addition, the
operation of, and electrical interconnection for, our renewable
energy projects are subject to federal, state or provincial
interconnection and federal reliability standards also set forth
in utility tariffs. These tariffs specify rules, business
practices and economic terms to which we are subject. The
tariffs are drafted by the utilities and approved by the
utilities state and federal regulatory commissions.
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Employees
As of December 31, 2009, we had a total of
639 employees in offices located in 29 states and four
Canadian provinces.
Legal
Proceedings
In the ordinary conduct of our business we are subject to
periodic lawsuits, investigations and claims. Although we cannot
predict with certainty the ultimate resolution of such lawsuits,
investigations and claims against us, we do not believe that any
currently pending or threatened legal proceedings to which we
are a party will have a material adverse effect on our business,
results of operations or financial condition.
Facilities
Our corporate headquarters is located in Framingham,
Massachusetts, where we occupy approximately 20,000 square
feet under a sublease agreement expiring on December 31,
2010. We occupy seven regional offices in Oak Brook, Illinois;
Columbia, Maryland; Charlotte, North Carolina; Knoxville,
Tennessee; Tomball, Texas; Spokane, Washington; and North York,
Ontario, each less than 25,000 square feet, under lease or
sublease agreements. In addition, we lease space, typically less
than 5,000 square feet, for 46 field offices throughout
North America. We also own 21 small-scale renewable energy and
central plants throughout North America, which are located on
leased sites or sites provided by customers. We expect to add
new facilities and expand existing facilities as we continue to
add employees and expand our business into new geographic areas.
81
MANAGEMENT
Executive
Officers and Directors
Our executive officers and directors, their current positions
and their ages as of March 1, 2010 are set forth below:
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Name
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Age
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Position (s)
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George P. Sakellaris
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63
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Chairman of the Board of Directors, President and Chief
Executive Officer
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David J. Anderson
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49
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Executive Vice President, Business Development and Director
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Michael T. Bakas
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41
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Senior Vice President, Renewable Energy
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David J. Corrsin
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51
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Executive Vice President and General Counsel and Director
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William J. Cunningham
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50
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Senior Vice President, Corporate Government Relations
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Joseph P. DeManche
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53
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Executive Vice President, Engineering and Operations
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Keith A. Derrington
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49
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Executive Vice President and General Manager, Federal Operations
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Mario Iusi
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51
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President, Ameresco Canada
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Louis P. Maltezos
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43
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Executive Vice President and General Manager, Central Region
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Andrew B. Spence
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53
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Vice President and Chief Financial Officer
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William M. Bulger
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76
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Director
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Guy W. Nichols
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85
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Director
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Joseph W. Sutton
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62
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Director
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(1)
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Member of compensation committee.
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(2)
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Member of audit committee.
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(3)
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Member of nominating and corporate governance committee.
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George P. Sakellaris:
Mr. Sakellaris has served
as chairman of our board of directors and our president and
chief executive officer since founding Ameresco in 2000.
Mr. Sakellaris previously founded Noresco, an energy
services company, in 1989 and served as its president and chief
executive officer until 2000. Noresco was acquired by Equitable
Resources, Inc. in 1997. Mr. Sakellaris was a founding
member and previously served as the president, and is currently
a director, of the National Association of Energy Service
Companies, a national trade organization representing the energy
efficiency industry. We believe that Mr. Sakellaris is
qualified to serve as a director because of his 31 years of
experience in the energy services and renewable energy
industries, his leadership experience, skill and familiarity
with our business gained from serving as our chief executive
officer for over a decade, as well as his experience developed
through founding and serving as chief executive officer of two
previous energy services companies.
David J. Anderson:
Mr. Anderson has served as
our executive vice president, business development, as well as a
director, since 2000. From 1992 to 2000, Mr. Anderson was a
senior vice president at Noresco. We believe that
Mr. Anderson is qualified to serve as a director because of
his extensive knowledge of our business, gained through more
than a decade as an executive officer, and his more than
20 years of experience in the energy services and renewable
energy industries. We also believe that Mr. Anderson brings
a deep understanding of operations and strategy to our board of
directors.
Michael T. Bakas:
Mr. Bakas has served as our
senior vice president, renewable energy, since March 2010. From
2000 to February 2010, he was our vice president, renewable
energy. From 1997 to 2000, Mr. Bakas was director of energy
services at Noresco.
David J. Corrsin:
Mr. Corrsin has served as our
executive vice president and general counsel, as well as a
director, since 2000. From 1996 to 2000, Mr. Corrsin was
executive vice president of Public Power
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International, Inc., an independent developer of power projects
in south Asia and Europe. We believe that Mr. Corrsin is
qualified to serve as a director because of his extensive
experience with energy regulations, federal, state and local
regulatory authorities and complex energy construction and
financing projects, gained through more than 23 years of
energy-related legal practice, and his more than a decade as an
executive officer of our company.
William J. Cunningham:
Mr. Cunningham has
served as our senior vice president, corporate government
relations since January 2008. From April 2007 to January 2008,
he was a vice president at Dutko Worldwide, a public affairs and
lobbying firm. From 2004 to 2006, Mr. Cunningham was senior
vice president, corporate government relations, at Conseco
Services, which is a subsidiary of Conseco, Inc., an insurance
company.
Joseph P. DeManche:
Mr. DeManche has served as
our executive vice president, engineering and operations since
2002. Mr. DeManche joined the company as a result of our
acquisition of DukeSolutions Inc., where he most recently served
as executive vice president in charge of all commercial
operations.
Keith A. Derrington:
Mr. Derrington has served
as our executive vice president and general manager, federal
operations since April 2009. From 2004 to April 2009,
Mr. Derrington was our vice president and general manager,
federal operations. From 2000 to 2004, Mr. Derrington was
vice president and general manager of the federal group of the
ESPC business of Exelon, an electric utility.
Mario Iusi:
Mr. Iusi has served as president of
Ameresco Canada since 2002. From 1998 to 2002, he was president
of DukeSolutions Canada, a subsidiary of Duke Energy, which we
acquired in 2002.
Louis P. Maltezos:
Mr. Maltezos has served as
our executive vice president and general manager, central
region, since April 2009. From 2004 until April 2009,
Mr. Maltezos was our vice president and general manager,
midwest region. From 1988 until 2004, Mr. Maltezos was with
Exelon, where he most recently served as vice president and
general manager of Exelons ESPC business.
Andrew B. Spence:
Mr. Spence has served as our
vice president and chief financial officer since 2002. From 1997
to 2000, Mr. Spence was chief financial officer of ABB
Energy Capital L.L.C. an energy-related financial services
company.
William M. Bulger:
Mr. Bulger has served as a
director since 2001. From 2004 to 2009, Mr. Bulger served
as an adjunct professor at Suffolk University and a part-time
faculty member of the political science department at Boston
College. From 1996 to 2003, Mr. Bulger was president of the
University of Massachusetts. From 1970 to 1996, Mr. Bulger
was a member of the Massachusetts State Senate, where he served
as president from 1978 to 1996. Mr. Bulger was a director
of New England Electric System until it was acquired by National
Grid in 2000. We believe that Mr. Bulger is qualified to
serve as a director because of his prior experience as a
director of a large public utility. He has valuable experience
serving as the leader of large, complex organizations gained
through his legislative experience, and as president of the
University of Massachusetts.
Guy W. Nichols:
Mr. Nichols has served as a
director since 2001. Prior to retiring in 1984, he was chairman,
president and chief executive officer of New England Electric
System. We believe that Mr. Nichols is qualified to serve
as a director because of his extensive leadership experience in
the energy, energy services and renewable energy industries,
including as chief executive officer of New England Electric
Systems. Mr. Nichols provides our board of directors with
critical advice on strategy within the energy services industry.
Joseph W. Sutton:
Mr. Sutton has served as a
director since 2002. Since 2000, Mr. Sutton has been the
manager of Sutton Ventures Group, LLC, an energy investment firm
that he founded. From 1992 to November 2000, Mr. Sutton
worked for Enron Corporation, an energy company, where he most
recently served as vice chairman, and served as chief executive
officer of Enron International. Enron Corporation filed a
voluntary bankruptcy petition under Chapter 11 of the U.S.
Bankruptcy Code in December 2001. We believe that
Mr. Sutton is qualified to serve as a director because of
his prior experience as a director of a large public energy and
energy services company. Mr. Suttons general
financial expertise and his specific financial knowledge with
respect to the energy industry also enhance his ability to
contribute to our board of directors.
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Composition
of our Board of Directors
Our board of directors currently consists of six members. We
intend to add independent directors
to our board of directors prior to the closing of this offering.
Our directors hold office until their successors have been
elected and qualified or until the earlier of their death,
resignation or removal. There are no family relationships among
any of our directors or executive officers.
In accordance with the terms of our restated certificate of
incorporation and by-laws, our board of directors is divided
into three classes, each of which consists, as nearly as
possible, of one-third of the total number of directors
constituting our entire board of directors and each of whose
members serve for staggered three-year terms. As a result, only
one class of our board of directors will be elected each year.
Upon the expiration of the term of a class of directors,
directors in that class will be eligible to be elected for a new
three-year term at the annual meeting of stockholders in the
year in which their term expires. The members of the classes are
as follows:
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the class I directors
are ,
and their term expires at the annual meeting of stockholders to
be held in 2011;
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the class II directors
are ,
and their term expires at the annual meeting of stockholders to
be held in 2012; and
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the class III directors
are ,
and their term expires at the annual meeting of stockholders to
be held in 2013.
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Our restated certificate of incorporation and restated by-laws
provide that the authorized number of directors comprising our
board of directors may be changed only by resolution of our
board of directors. Any additional directorships resulting from
an increase in the number of directors will be distributed among
the three classes so that, as nearly as possible, each class
will consist of one-third of the directors. Our restated
certificate of incorporation and restated by-laws also provide
that our directors may be removed only for cause by the
affirmative vote of the holders of at least two-thirds of the
votes that all our stockholders would be entitled to cast in an
annual election of directors, and that any vacancy on our board
of directors, including a vacancy resulting from an enlargement
of our board of directors, may be filled only by vote of a
majority of our directors then in office. Our classified board
could have the effect of delaying or discouraging an acquisition
of Ameresco or a change in our management.
Director
Independence
Under applicable stock market rules, a director will qualify as
independent if our board of directors affirmatively
determines that he or she has no material relationship with
Ameresco (either directly or as a partner, stockholder or
officer of an organization that has a relationship with us). Our
board of directors has established guidelines to assist it in
determining whether a director has such a material relationship.
Under these guidelines, a director is not considered to have a
material relationship with Ameresco if he or she is independent
under applicable stock market rules and he or she:
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is an executive officer of another company which is indebted to
us, or to which we are indebted, unless the total amount of
either companys indebtedness to the other is more than one
percent of the total consolidated assets of the company he or
she serves as an executive officer; or
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serves as an officer, director or trustee of a tax exempt
organization, unless our discretionary contributions to such
organization are more than the greater of $1 million or two
percent of that organizations consolidated gross revenue.
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In addition, ownership of a significant amount of our stock, by
itself, does not constitute a material relationship.
Pursuant to applicable stock market rules, a director employed
by us cannot be deemed to be an independent
director, and consequently neither Mr. Sakellaris nor
Mr. Corrsin nor Mr. Anderson qualifies as an
independent director.
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Our board of directors has affirmatively determined that each of
Messrs. Bulger, Nichols and Sutton is
independent under applicable stock market rules.
Committees
of our Board of Directors
Our board of directors has established an audit committee, a
compensation committee and a nominating and corporate governance
committee. Each committee operates under a charter approved by
our board of directors. Following this offering, copies of each
committees charter will be posted on the Investor
Relations section of our website, which is located at
www.ameresco.com.
All of the members of our boards three standing committees
described below have been determined to be independent as
defined under applicable stock market rules and in the case of
all members of the audit committee, the independence
requirements contemplated by
Rule 10A-3
under the Securities Exchange Act of 1934.
Audit
Committee
The members of our audit committee
are .
Our board of directors has determined that each of the members
of our audit committee satisfy the requirements for financial
literacy under applicable stock market and SEC rules and
regulations. is
the chair of the audit committee and is also an audit
committee financial expert, as defined by SEC rules and
satisfies the financial sophistication requirements of
applicable stock market rules. Our audit committee assists our
board of directors in its oversight of our accounting and
financial reporting process and the audits of our financial
statements.
The audit committees responsibilities include:
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appointing, approving the compensation of, and assessing the
independence of our registered public accounting firm;
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overseeing the work of our registered public accounting firm,
including through the receipt and consideration of reports from
such firm;
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reviewing and discussing with management and our registered
public accounting firm our annual and quarterly financial
statements and related disclosures;
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monitoring our internal control over financial reporting,
disclosure controls and procedures and code of business conduct
and ethics;
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overseeing our internal audit function;
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overseeing our risk assessment and risk management policies;
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establishing policies regarding hiring employees from our
registered public accounting firm and procedures for the receipt
and retention of accounting related complaints and concerns;
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meeting independently with our internal auditing staff,
registered public accounting firm and management;
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reviewing and approving or ratifying any related person
transactions; and
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preparing the audit committee report required by SEC rules to be
included in our proxy statement for our annual meeting of
stockholders.
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All audit services and all non-audit services, other than de
minimis non-audit services, to be provided to us by our
registered public accounting firm must be approved in advance by
our audit committee.
Compensation
Committee
The members of our compensation committee
are . is
the chair of the compensation committee. Our compensation
committee assists our board of directors in the discharge of its
85
responsibilities relating to the compensation of our executive
officers. The compensation committees responsibilities
include:
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annually reviewing and approving corporate goals and objectives
relevant to CEO compensation;
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determining our CEOs compensation;
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reviewing and approving, or making recommendations to our board
of directors with respect to, the compensation of our other
executive officers;
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overseeing an evaluation of our senior executives;
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overseeing and administering our cash and equity incentive plans;
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reviewing and making recommendations to our board of directors
with respect to director compensation;
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reviewing and discussing annually with management our
Compensation Discussion and Analysis, which is
included beginning on page 87 of this prospectus; and
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preparing the compensation committee report required by SEC
rules to be included in our proxy statement for our annual
meeting of stockholders.
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Nominating
and Corporate Governance Committee
The members of our nominating and corporate governance committee
are . is
the chair of the nominating and corporate governance committee.
The nominating and corporate governance committees
responsibilities include:
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identifying individuals qualified to become members of our board
of directors;
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recommending to our board of directors the persons to be
nominated for election as directors and to each of the
committees of our board of directors;
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reviewing and making recommendations to our board of directors
with respect to our board of directors leadership
structure;
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reviewing and making recommendations to our board of directors
with respect to management succession planning;
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developing and recommending to our board of directors corporate
governance principles; and
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overseeing an annual evaluation of our board of directors.
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Compensation
Committee Interlocks and Insider Participation
None of our executive officers serves as a member of the board
of directors or compensation committee, or other committee
serving an equivalent function, of any entity that has one or
more executive officers who serve as members of our board of
directors or our compensation committee. None of the members of
our compensation committee is an officer or employee of our
company, nor have they ever been an officer or employee of our
company.
Corporate
Governance Guidelines
Our board of directors has adopted corporate governance
guidelines to assist the board in the exercise of its duties and
responsibilities and to serve the best interests of our company
and our stockholders. Following this offering, a copy of these
guidelines will be posted on the Investor Relations section of
our website, which is located at www.ameresco.com. These
guidelines, which provide a framework for the conduct of our
boards business, provide that:
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our boards principal responsibility is to oversee the
management of Ameresco;
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a majority of the members of our board of directors shall be
independent directors;
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the non-management directors meet regularly in executive session;
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directors have full and free access to management and employees
of our company, and the right to hire and consult with
independent advisors at our expense;
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new directors participate in an orientation program and all
directors are expected to participate in continuing director
education on an ongoing basis; and
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at least annually, our board of directors and its committees
will conduct self-evaluations to determine whether they are
functioning effectively.
|
Code of
Business Conduct and Ethics
We have adopted a written code of business conduct and ethics
that applies to our directors, officers and employees, including
our principal executive officer, principal financial officer,
principal accounting officer or controller, and persons
performing similar functions. Following this offering, a copy of
the code of business conduct and ethics will be posted on the
Investor Relations section of our website, which is located at
www.ameresco.com. In addition, we intend to post on our website
all disclosures that are required by law or applicable stock
exchange listing standards concerning any amendments to, or
waivers from, any provision of the code.
Director
Compensation
Since our company was formed, we have not paid cash compensation
to any director for his or her service as a director. However,
non-employee directors are reimbursed for reasonable travel and
other expenses incurred in connection with attending our board
and committee meetings. Messrs. Bulger, Nichols and Sutton
are our non-employee directors.
In the past, we have granted options to purchase shares of our
Class A common stock to our non-employee directors. We did
not grant any options or shares of restricted stock to our
non-employee directors during 2009.
None of Mr. Sakellaris, Mr. Anderson or
Mr. Corrsin has ever received any compensation in any form
in connection with his service as a director, and none of
Mr. Bulger, Mr. Nichols or Mr. Sutton received
any compensation in any form in connection with his service as a
director in 2009.
Upon the closing of this offering, we intend to implement a
director compensation plan to provide non-employee directors
with appropriate cash and equity compensation for service on our
board of directors and committees of the board of directors. The
amount of this compensation has not been determined, but we
anticipate that it will be consistent with amounts paid by
comparable public companies.
Compensation
Discussion and Analysis
This section discusses the material elements of our executive
compensation policies and decisions and the most important
factors relevant to an analysis of these policies and decisions.
It provides qualitative information regarding the manner and
context in which compensation is awarded to and earned by our
executive officers and is intended to place in perspective the
data presented in the tables and narrative that follow.
In preparing to become a public company, we have begun a
thorough review of all elements of our executive compensation
program, including the function and design of our annual
incentive bonus and equity incentive programs. We have begun,
and we expect to continue in the coming months, to evaluate the
need for revisions to our executive compensation program to
ensure our program is competitive with the companies with which
we compete for executive talent and is appropriate for a public
company.
87
Overview
of Executive Compensation Process
Roles of Our Board, Chief Executive Officer and Compensation
Committee in Compensation Decisions.
As a private
company, our chief executive historically has overseen our
executive compensation program. In this role, our chief
executive officer has reviewed all compensation decisions
relating to our executive officers other than himself. He has
annually reviewed the performance of each of our other executive
officers, and, based on these reviews, has made recommendations
to our board of directors regarding salary adjustments, annual
incentive bonus payments and equity incentive awards for our
executive officers. Our chief executive officer has annually met
in executive session with our board of directors to discuss
these recommendations. Our chief executive officer has not
historically been present for board discussions regarding his
compensation.
In anticipation of becoming a public company, we have
established a compensation committee, which will oversee our
executive compensation program. Our chief executive officer will
make recommendations to the compensation committee regarding the
compensation of our executive officers, but the compensation
committee will either make all compensation decisions regarding
our executive officers or will make recommendations concerning
executive compensation to our board of directors, with the
independent directors making such decisions.
Competitive Market Data and Use of Compensation
Consultants.
Historically, we have not formally
benchmarked our executive compensation against compensation data
of a peer group of companies, but rather have relied on the
business judgment and experience in the energy services and
engineering consulting industries of our chief executive officer
and our executive management team. We have developed substantial
information about compensation practices and levels at
comparable companies through extensive recruiting, networking
and industry research. Once we are a public company, our
compensation committee may elect to engage an independent
compensation consulting firm to provide advice regarding our
executive compensation program and general information regarding
executive compensation practices in our industry. Although the
compensation committee would consider such a compensation
firms advice in establishing and approving the various
elements of our executive compensation program, the compensation
committee would ultimately make its own decisions, or make
recommendations to our board of directors, about these matters.
Objectives and Philosophy of Our Executive Compensation
Program.
Our primary objective with respect to
executive compensation is to attract, retain and motivate highly
talented individuals who have the skills and experience to
successfully execute our business strategy. Our executive
compensation program is designed to:
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reward the achievement of our annual and long-term operating and
strategic goals;
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recognize individual contributions;
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align the interests of our executives with those of our
stockholders by rewarding performance that meets or exceeds
established goals, with the ultimate objective of increasing
stockholder value; and
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retain and build our executive management team.
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To achieve these objectives, our executive compensation program
ties a portion of each executives overall
compensation annual incentive bonuses to
key corporate financial goals and to individual goals. We have
also provided a portion of our executive compensation in the
form of restricted stock and option awards that vest over time,
which we believe helps to retain our executive officers and
aligns their interests with those of our stockholders by
allowing them to participate in our long-term performance as
reflected in the trading price of shares of our common stock.
Elements of Our Executive Compensation Program.
The
primary elements of our executive compensation program are:
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base salaries;
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annual incentive bonuses;
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equity incentive awards; and
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other employee benefits.
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We have not adopted any formal or informal policies or
guidelines for allocating compensation among these elements.
Base Salaries
. We use competitive base salaries to
attract and retain qualified candidates to help us achieve our
growth and performance goals. Base salaries are intended to
recognize an executive officers immediate contribution to
our organization, as well as his or her experience, knowledge
and responsibilities.
Historically, our chief executive officer (with respect to
executive officers other than himself) has annually evaluated
and adjusted executive officer base salary levels based on
factors determined to be relevant, including:
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the executive officers skills and experience;
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the particular importance of the executive officers
position to us;
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the executive officers individual performance;
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the executive officers growth in his or her
position; and
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base salaries for comparable positions within our company and at
other companies.
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Our chief executive officers base salary has been
determined by the
non-management
members of our board of directors, taking into account these
same factors.
We have historically made annual base salary adjustments during
the year, often around the anniversary of the executives
hire, with the adjustments taking effect as of the anniversary
of hire (rather than as of the beginning of the year). In 2009,
we increased the base salaries for Messrs. Anderson,
Spence, Cunningham and Maltezos by 2.3%, 4.8%, 17.9% and 9.3%,
respectively, and made no adjustment for Mr. Sakellaris.
Once we are a public company, our compensation committee will
perform such annual evaluations, and we expect that it will
consider similar factors, as well as perhaps the input of a
compensation firm and peer group benchmarking data, in making
any adjustments to executive officer base salary levels.
Annual Incentive Bonus Program.
Each year we
establish an incentive bonus program in which all of our
executive officers, as well as most other full-time employees,
participate. These annual incentive bonuses are intended to
compensate our executive officers for our achievement of
corporate financial goals, as well as individual performance
goals.
Under our incentive bonus program for 2009, the total bonus pool
payable is determined based on our performance with respect to
the following corporate financial goals: revenue, adjusted
EBITDA from ongoing operations, value of customer contracts
signed, proposal volume and qualitative operational measures.
The specific targets for each of these performance metrics were
established near the beginning of 2009 by our board of
directors, with input from our chief executive officer and other
executive officers. These targets were based on our historical
operating results and growth rates, as well as our expected
future results, and are designed to require significant effort
and operational success on the part of our company. The amount
of the total bonus pool can be up to ten percent of our adjusted
EBITDA from continuing operations for 2009, with the actual
percentage based on our performance against these corporate
financial goals.
Once the total bonus pool is calculated, it is allocated among
our executive officers and organizational units based on their
performance with respect to financial and operational goals for
2009. These goals, and the specific targets with respect to each
goal, were established near the beginning of 2009 by our board
of directors, based on recommendations from our executive
management team, including our chief executive officer.
In addition to the corporate and organizational unit goals
described above, members of management including
each of our executive officers were assigned written
individual performance goals
89
near the beginning of fiscal 2009. For our executive officers
other than our chief executive officer, these individual goals
were set by our chief executive officer in collaboration with
our executive management team; the individual goals for our
chief executive officer were set by our board of directors,
taking into account discussions with our chief executive officer.
Each participant in the 2009 incentive bonus program was
assigned a maximum bonus, expressed as a percentage of his or
her annual base salary. The maximum bonus payment for our chief
executive officer is 50% of his base salary. For each of our
other executive officers, the maximum bonus payment is 40% of
his base salary.
Once the total bonus pool for the 2009 program is determined and
allocated among our executive officers and organizational units,
the bonus pool for each organizational unit is allocated among
its members based on their performance with respect to their
individual performance goals, subject to the maximum payments
described above. For our executive officers other than our chief
executive officer, the assessment of performance against
individual goals and the determination of individual bonus
payments are done by our chief executive officer, subject to
approval by our board of directors.
The bonus payments to our executive officers under our incentive
bonus program for 2009 have not yet been determined. We expect
that they will be determined in the second quarter of 2010.
Once we are a public company, our compensation committee, or our
board of directors based on recommendations from our
compensation committee, will establish and administer our annual
incentive bonus program for executive officers.
Equity Incentive Awards.
Our equity incentive award
program is the primary vehicle for offering long-term incentives
to our executive officers. To date, equity incentive awards to
our executive officers have been made in the form of restricted
stock awards and stock options, with options being the primary
form of equity grants in recent years. We believe that equity
incentive awards:
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provide our executive officers with a strong link to our
long-term performance by enhancing their accountability for
long-term decision making;
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help balance the short-term orientation of our annual incentive
bonus program;
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create an ownership culture by aligning the interests of our
executive officers with the creation of value for our
stockholders; and
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further our goal of executive retention.
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Employees who are considered important to our long-term success
are eligible to receive equity incentive awards, which generally
vest over five years. Equity incentive awards have been granted
to over 25% of our current employees.
Historically, all equity awards to our executive officers have
been approved by our board of directors, with input from our
chief executive officer and our executive management team. In
determining the size of equity awards to executive officers, our
board and chief executive officer have generally considered the
executives experience, skills, level and scope of
responsibilities, existing equity holdings, and comparisons to
comparable positions in our company.
Once we are a public company, our compensation committee will
have the authority to make equity awards to our executive
officers and to administer our equity compensation plans.
We do not have any equity ownership guidelines or requirements
for our executive officers.
Other Employee Benefits.
We maintain broad-based
benefits that are provided to all employees, including our
401(k) retirement plan, flexible spending accounts, medical and
dental care plans, life insurance, short- and long-term
disability policies, vacation and company holidays. Our
executive officers are eligible to participate in each of these
programs on the same terms as non-executive employees; however,
employees at the director level and above are eligible for life
insurance coverage equal to three times (rather than twice)
their annual base salary.
90
Severance and Change of Control Arrangements.
We
have no severance or change of control agreements with our
executive officers, other than the acceleration of stock option
vesting as described under Management Stock
Option and Other Compensation Plans below.
Risk Considerations in our Compensation Program.
We
do not believe that any risks arising from our employee
compensation policies and practices are reasonably likely to
have a material adverse effect on our company. In addition, we
do not believe that the mix and design of the components of our
executive compensation program encourage management to assume
excessive risks.
Tax Considerations.
Section 162(m) of the Code
generally disallows a tax deduction for compensation in excess
of $1.0 million paid by a public company to its chief
executive officer and to each other officer (other than its
chief executive officer and chief financial officer) whose
compensation is required to be reported to stockholders by
reason of being among the three other most highly paid executive
officers. Qualifying performance-based compensation is not
subject to the deduction limitation if specified requirements
are met. We will periodically review the potential consequences
of Section 162(m) on the various elements of our executive
compensation program, and we generally intend to structure the
equity incentives component of our executive compensation
program, where feasible, to comply with exemptions in
Section 162(m) so that the compensation remains tax
deductible to us. However, our board of directors or
compensation committee may, in its judgment, authorize
compensation payments that do not comply with the exemptions in
Section 162(m) when it believes that such payments are
appropriate to attract and retain executive talent.
Section 409A of the Code applies to plans, agreements and
arrangements that provide for the deferral of compensation, and
imposes penalty taxes on employees if those plans, agreements
and arrangements do not comply with Section 409A. We have
sought to structure our executive compensation arrangements to
be exempt from, or comply with, Section 409A.
Executive
Compensation
Summary
Compensation Table
The following table sets forth information regarding
compensation earned by our chief executive officer, our chief
financial officer and our three next most highly compensated
executive officers during our fiscal year ended
December 31, 2009. We refer to these individuals as our
named executive officers.
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Option
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All Other
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Name and
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Salary
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Bonus
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Awards
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Compensation
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Total
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Principal Position
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($)
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($)(1)
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($)(2)
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($)(3)
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($)
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George P. Sakellaris(4)
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500,000
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2,049,424
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26,785
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2,576,209
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President and Chief
Executive Officer
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Andrew B. Spence
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220,000
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16,816
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14,504
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251,320
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Vice President and
Chief Financial Officer
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Louis P. Maltezos
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250,000
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119,658
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15,870
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385,528
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Executive Vice President and General Manager
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William J. Cunningham
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250,000
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20,834
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15,175
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286,009
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Senior Vice President, Corporate Government Relations
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David J. Anderson(4)
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264,750
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15,911
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280,661
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Executive Vice President, Business Development
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(1)
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The bonus payments to our executive officers under our incentive
bonus program for 2009 have not yet been determined. We expect
that they will be determined in the second quarter of 2010.
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(2)
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Value is equal to the aggregate grant date fair value of stock
options computed in accordance with ASC Topic 718. These amounts
do not represent the actual amounts paid to or realized by the
named executive officer with respect to these option grants. The
assumptions used by us with respect to the valuation of
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option awards are the same as those set forth in Note 11 to our
consolidated financial statements included elsewhere in this
prospectus.
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(3)
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Amounts represent the value of perquisites and other personal
benefits, which are further detailed below.
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Matched 401(k)
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Group Life
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Auto
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Contribution ($)
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Insurance ($)
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Insurance ($)
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Total ($)
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George P. Sakellaris
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14,700
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10,585
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1,500
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26,785
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Andrew B. Spence
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13,521
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983
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14,504
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Louis P. Maltezos
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14,700
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1,170
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15,870
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William J. Cunningham
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14,005
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1,170
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15,175
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David J. Anderson
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14,700
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1,211
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15,911
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(4)
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Messrs. Sakellaris and Anderson are also members of our
board of directors, but do not receive any additional
compensation in their capacities as directors.
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Grants
of Plan-Based Awards in 2009
The following table sets forth information regarding grants of
compensation in the form of plan-based awards during the fiscal
year ended December 31, 2009 to our named executive
officers.
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All Other
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Grant
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Option
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Date
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Awards:
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Exercise
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Fair
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Number of
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or Base
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Market
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Value of
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Securities
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Price of
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Price on
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Stock and
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Underlying
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Option
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Grant
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Option
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Grant
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Approval
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Options
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Awards
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Date
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Awards
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Name
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Date
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Date
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(#) (1)
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($/Sh)
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($/Sh)
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($)
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George P. Sakellaris
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9/30/2009
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9/30/2009
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300,000
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12.11
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22.00
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6,600,000
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Andrew B. Spence
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Louis P. Maltezos
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7/22/2009
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7/22/2009
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50,000
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12.11
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18.00
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900,000
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William J. Cunningham
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7/22/2009
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7/22/2009
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25,000
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12.11
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18.00
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450,000
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David J. Anderson
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Outstanding
Equity Awards at Fiscal Year End
The following table sets forth information regarding outstanding
stock options held by our named executive officers as of
December 31, 2009. No unvested restricted stock was held by
our named executive officers as of December 31, 2009.
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Option Awards (1)
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Number of
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Number of
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Securities
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Securities
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Underlying
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Underlying
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Unexercised
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Unexercised
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Option
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Option
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Options (#)
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Options (#)
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Exercise
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Expiration
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Name
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Exercisable
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Unexercisable
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Price ($)
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Date
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George P. Sakellaris
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300,000
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12.11
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9/30/2019
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Andrew B. Spence
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150,000
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1.75
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4/25/2012
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50,000
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3.75
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10/16/2013
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32,500
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17,500
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6.50
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7/26/2016
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Louis P. Maltezos
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100,000
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5.50
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6/25/2014
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37,500
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12,500
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6.50
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1/27/2016
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|
|
|
45,000
|
|
|
|
55,000
|
|
|
|
8.44
|
|
|
|
7/25/2017
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|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
|
|
12.11
|
|
|
|
7/22/2019
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|
|
|
|
|
William J. Cunningham
|
|
|
|
|
|
|
25,000
|
|
|
|
12.11
|
|
|
|
7/22/2019
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|
|
|
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|
David J. Anderson
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92
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(1)
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All option awards and stock awards listed in this table were
granted under the 2000 stock plan. Each option listed above
vests or has vested as to 20% of the shares on the first
anniversary of the grant date, and as to an additional five
percent of the shares at the end of each successive three-month
period of employment with us until the fifth anniversary of the
grant date. Under the terms of the individual stock option
agreements we have entered into with our named executive
officers, if, an Acquisition Event (as defined in
the 2000 stock plan) involving us occurs, and prior to the
one-year anniversary of such Acquisition Event the
executives employment is terminated without Cause (as
defined in the 2000 stock plan) or the executive voluntarily
terminates his or her employment for Good Reason (as defined in
the 2000 stock plan) prior to such anniversary, then the number
of shares subject to the option which would have vested and
become exercisable had the last 24 months (or if less than
24 months remained, such lesser period) of scheduled
vesting been accelerated shall vest and become exercisable
immediately prior to such named executive officers
termination date.
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Option
Exercises and Stock Vested
No named executive officer exercised any options during the
fiscal year ended December 31, 2009. The following table
sets forth information regarding vesting of restricted stock
awards held by our named executive officers during the fiscal
year ended December 31, 2009.
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Option Awards
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Stock Awards
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Number of Shares
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Value Realized on
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Number of Shares
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Value Realized on
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Acquired on Exercise
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Exercise
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Acquired on Vesting
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Vesting
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Name
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|
(#)
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|
($)
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|
(#)
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($) (1)
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George P. Sakellaris
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1,000,000
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12,110,000
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|
Andrew B. Spence
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Louis P. Maltezos
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William J. Cunningham
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David J. Anderson
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(1)
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There was no public market for our Class A common stock on
the date that these shares of restricted stock vested. The value
realized has been calculated by multiplying the fair value of
our Class A common stock as of the date that such shares
vested, based on the fair value that was most recently
determined by our board of directors, by the number of vested
shares.
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Potential
Payments Upon Termination or Change of Control
The table below summarizes the potential payments to each of our
named executive officers if he were to be terminated without
cause or resign for good reason prior to the
one-year
anniversary of a sale of our company, based on stock options
held on December 31, 2009.
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Value of Additional
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Vested Option
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Total
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Name
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Awards($)(1)
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Benefits
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George P. Sakellaris
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(2
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)
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Andrew B. Spence
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(3
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)
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Louis P. Maltezos
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(4
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)
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William J. Cunningham
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(5
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)
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David J. Anderson
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(1)
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Valuation of these options is based on a price per share of our
Class A common stock of $ ,
which is the midpoint of the estimated price range shown on the
cover of this prospectus.
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(2)
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Upon termination without cause or resignation for good reason
prior to the one-year anniversary of an Acquisition Event,
options to purchase 120,000 shares of Class A common
stock would vest and become immediately exercisable.
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93
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(3)
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Upon termination without cause or resignation for good reason
prior to the one-year anniversary of an Acquisition Event,
options to purchase 30,000 shares of Class A common
stock would vest and become immediately exercisable.
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(4)
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Upon termination without cause or resignation for good reason
prior to the one-year anniversary of an Acquisition Event,
options to purchase 47,000 shares of Class A common stock would
vest and become immediately exercisable.
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(5)
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Upon termination without cause or resignation for good reason
prior to the one-year anniversary of an Acquisition Event,
options to purchase 10,000 shares of Class A common
stock would vest and become immediately exercisable.
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Stock
Option and Other Compensation Plans
2010
Stock Incentive Plan
The 2010 stock plan, which will become effective upon the
closing of this offering, was adopted by our board of directors
in
2010 and approved by our stockholders
on ,
2010. The 2010 stock plan provides for the grant of incentive
stock options, non-statutory stock options, restricted stock
awards and other stock-based awards. Upon its
effectiveness, shares
of our Class A common stock will be reserved for issuance
under the 2010 stock plan.
Our employees, officers, directors, consultants and advisors are
eligible to receive awards under the 2010 stock plan; however,
incentive stock options may only be granted to our employees.
The maximum number of shares of our Class A common stock
with respect to which awards may be granted to any participant
under the 2010 stock plan
is
per year.
In accordance with the terms of the 2010 stock plan, our board
of directors has authorized our compensation committee to
administer the 2010 stock plan. Pursuant to the terms of the
2010 stock plan, our compensation committee will select the
recipients of awards and determine:
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the number of shares of our Class A common stock covered by
the award and the dates upon which the award will vest;
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with respect to options, the exercise price and period of
exercise; and
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with respect to restricted stock and other stock-based awards,
the terms and conditions of such awards, including conditions
for repurchase, issue price and repurchase price.
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Upon a merger or other reorganization event, our board of
directors may, in its sole discretion, take any one or more of
the following actions pursuant to the 2010 stock plan as to some
or all outstanding awards:
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provide that all outstanding awards shall be assumed or
substituted by the successor corporation;
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upon written notice to a participant, provide that the
participants unexercised options or awards will terminate
immediately prior to the consummation of such transaction unless
exercised by the participant;
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provide that outstanding awards will become exercisable,
realizable or deliverable, or restrictions applicable to an
award will lapse, in whole or in part, prior to or upon the
reorganization event;
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in the event of a reorganization event pursuant to which holders
of our Class A common stock will receive a cash payment for
each share surrendered in the reorganization event, make or
provide for a cash payment to the participants equal to the
excess, if any, of the acquisition price times the number of
shares of our Class A common stock subject to such
outstanding awards (to the extent then exercisable at prices not
in excess of the acquisition price), over the aggregate exercise
price of all such outstanding awards and any applicable tax
withholdings, in exchange for the termination of such
awards; and
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94
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provide that, in connection with a liquidation or dissolution,
awards convert into the right to receive liquidation proceeds.
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Upon the occurrence of a reorganization event other than a
liquidation or dissolution, the repurchase and other rights
under each outstanding restricted stock award will continue for
the benefit of the successor company and will, unless the board
of directors may otherwise determine, apply to the cash,
securities or other property into which our Class A common
stock is converted pursuant to the reorganization event. Upon
the occurrence of a reorganization event involving a liquidation
or dissolution, all conditions on each outstanding restricted
stock award will automatically be deemed terminated or
satisfied, unless otherwise provided in the agreement evidencing
the restricted stock award.
No award may be granted under the 2010 stock plan after 2020.
Our board of directors may amend, suspend or terminate the 2010
stock plan at any time, except that stockholder approval will be
required to comply with applicable law or stock market
requirements.
2000
Stock Incentive Plan
The 2000 stock plan was adopted in October 2000. As of
December 31, 2009, a maximum of 14,250,000 shares of
our Class A common stock was authorized for issuance under
the 2000 stock plan. The 2000 stock plan allows us to grant
options, restricted stock awards and other stock-based awards to
our employees, officers and directors as well as outside
consultants and advisors we retain from time to time. As of
December 31, 2009, under the 2000 stock plan, options to
purchase 4,725,100 shares of our Class A common stock
were outstanding, 1,088,350 shares of our Class A
common stock had been issued and were outstanding pursuant to
the exercise of options, 4,211,125 shares of our
Class A common stock had been issued pursuant to restricted
stock awards and remain outstanding, and 4,222,800 shares
of our Class A common stock were available for future
awards. After the effective date of the 2010 stock plan, we will
grant no further stock options or restricted stock awards under
the 2000 stock plan.
401(k)
Retirement Plan
We maintain a 401(k) retirement plan that is intended to be a
tax-qualified defined contribution plan under
Section 401(k) of the Code. In general, all of our
employees are eligible to participate upon commencement of their
employment. The 401(k) plan includes a salary deferral
arrangement pursuant to which participants may elect to reduce
their current compensation by up to the statutorily prescribed
limit, equal to $16,500 in 2009, plus $5,500 for those age 50
and over, and have the amount of the reduction contributed to
the 401(k) plan. We currently match on a per payroll basis up to
100% of the first six percent of base compensation and
commissions that a participant contributes to his or her in
401(k) plan, up to $14,700 in 2009, subject to certain time of
service and other eligibility conditions.
Limitation
of Liability and Indemnification
As permitted by Delaware law, we have included provisions in our
restated certificate of incorporation, which will become
effective upon the closing of this offering, that limit or
eliminate the personal liability of our directors to the maximum
extent permitted by Delaware law. Our directors will not be
personally liable for monetary damages for breaches of their
fiduciary duties as directors, except liability for:
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any breach of the directors duty of loyalty to us or our
stockholders;
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|
|
|
any act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law;
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|
|
|
any unlawful payments related to dividends or unlawful stock
repurchases, redemptions or other distributions; or
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|
|
|
any transaction from which the director derived an improper
personal benefit.
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These limitations do not affect the availability of equitable
remedies, including injunctive relief or rescission. Any
amendment to or repeal of these provisions will not eliminate or
reduce the effect of these
95
provisions in respect of any act, omission or claim that
occurred or arose prior to such amendment or repeal. If Delaware
law is amended to authorize the further elimination or limiting
of a director, then the liability of our directors will be
eliminated or limited to the fullest extent permitted by
Delaware law as so amended.
As permitted by Delaware law, our restated certificate of
incorporation that will become effective upon the closing of
this offering also provides that:
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|
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|
|
we will indemnify our directors and officers to the fullest
extent permitted by law;
|
|
|
|
we may indemnify our other employees and other agents to the
same extent that we indemnify our officers and directors, unless
otherwise determined by our board of directors; and
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|
|
|
we will advance expenses to our directors and officers in
connection with legal proceedings in connection with a legal
proceeding to the fullest extent permitted by law.
|
The indemnification provisions contained in our restated
certificate of incorporation that will become effective upon the
closing of this offering are not exclusive.
In addition, we have entered into indemnification agreements
with each of our directors and executive officers. Each
indemnification agreement will provide that we will indemnify
the director or executive officer to the fullest extent
permitted by law for claims arising in his or her capacity as
our director, officer, employee or agent, provided that he or
she acted in good faith and in a manner that he or she
reasonably believed to be in, or not opposed to, our best
interests and, with respect to any criminal proceeding, had no
reasonable cause to believe that his or her conduct was
unlawful. In the event that we do not assume the defense of a
claim against a director or executive officer, we are required
to advance his or her expenses in connection with his or her
defense, provided that he or she undertakes to repay all amounts
advanced if it is ultimately determined that he or she is not
entitled to be indemnified by us.
We believe that these provisions and agreements are necessary to
attract and retain qualified persons as directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, which we refer to as the
Securities Act, may be permitted to directors, officers or
persons controlling our company pursuant to the foregoing
provisions, we understand that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
In addition, we maintain standard policies of insurance under
which coverage is provided to our directors and officers against
losses arising from claims made by reason of breach of duty or
other wrongful act, and to us with respect to payments which may
be made by us to such directors and officers pursuant to the
above indemnification provisions or otherwise as a matter of law.
Rule 10b5-1
Sales Plans
Our directors and executive officers may adopt written plans,
known as
Rule 10b5-1
plans, in which they will contract with a broker to buy or sell
shares of our common stock on a periodic basis. Under a
Rule 10b5-1
plan, a broker executes trades pursuant to parameters
established by the director or officer when entering into the
plan, without further direction from the director or officer.
The director or officer may amend or terminate the plan in some
circumstances. Our directors and executive officers may also buy
or sell additional shares outside of a
Rule 10b5-1
plan when they are not in possession of material, nonpublic
information concerning our company.
96
RELATED
PERSON TRANSACTIONS
Since January 1, 2007, we have engaged in the following
transactions with our directors, executive officers and holders
of more than five percent of our voting securities, and
affiliates of our directors, executive officers and holders of
more than five percent of our voting securities. We believe that
all of the transactions described below were made on terms no
less favorable to us than could have been obtained from
unaffiliated third parties.
Conversion
of Common Stock into Class A Common Stock and Convertible
Preferred Stock into Class B Common Stock
Prior to the closing of this offering, we will amend and restate
our certificate of incorporation to (i) reclassify all
outstanding shares of our common stock as Class A common
stock and (ii) provide that each share of our convertible
preferred stock will be convertible into shares of our
Class B common stock. Each share of our Class B common
stock will be entitled to votes
per share, will be convertible at any time into one share of our
Class A common stock at the option of the holder of such
shares and will automatically convert into one share of our
Class A common stock upon the occurrence of certain
specified events. See Description of Capital
Stock Common Stock.
As of February 28, 2010, three of our executive officers,
Mr. Sakellaris, Mr. Anderson and Mr. Corrsin, and
one of our non-employee directors, Mr. Sutton, beneficially
owned 1,675,000, 510,000, 650,000 and 500,000 shares of our
common stock, respectively, which, prior to the amendment and
restatement of our certificate of incorporation, collectively
represents approximately 49.65% of our outstanding common stock.
Upon the amendment and restatement of our certificate of
incorporation, these shares will be reclassified as 1,675,000,
510,000, 650,000 and 500,000 shares of our Class A
common stock, respectively. Our founder, principal stockholder,
chief executive officer and president, Mr. Sakellaris, owns
3,000,000 shares of our convertible preferred stock, which
represents all of our outstanding convertible preferred stock.
Upon the closing of this offering, these shares will
automatically convert into 9,000,000 shares of our
Class B common stock.
Subordinated
Note and Indemnity
On May 17, 2000, our board of directors authorized us to
borrow $2,998,750 from Mr. Sakellaris, and this loan is
evidenced by a subordinated note in favor of
Mr. Sakellaris. The subordinated note bears interest at the
rate of ten percent per annum, which is payable monthly in
arrears, and all amounts outstanding under the subordinated note
are payable on demand. During each of 2007, 2008 and 2009, we
made interest payments of $300,000 to Mr. Sakellaris under
the subordinated note. As of February 28, 2010, the entire
$2,998,750 principal amount under the subordinated note remains
outstanding. Our obligations under this note are subordinated to
our obligations under our senior credit facilities. See
Managements Discussion and Analysis
Liquidity and Capital Resources. We expect to repay this
subordinated note using net proceeds from this offering. See
Use of Proceeds.
Our sureties have historically required that Mr. Sakellaris
personally indemnify them for up to an aggregate of
$50 million of losses associated with the bonds they have
provided on our behalf. As consideration for this personal
indemnity, in October 2006, we issued to Mr. Sakellaris
1,000,000 shares of restricted stock, which vested in full on
the third anniversary of the issuance, and in September 2009, we
granted Mr. Sakellaris an option to purchase
300,000 shares of common stock, which vest as to 20% of the
shares on the first anniversary of the grant date and as to an
additional five percent at each successive three-month period.
Other
Transactions
In 2002, we entered into a letter agreement, which we refer to
as the Terra agreement, with TERRA Nova Holdings LLC, or Terra,
which was under the common control of William H. Kremer and
Samuel T. Byrne, each of whom then held more than five percent
of our outstanding common stock. Under the Terra agreement,
Terra provided us with consulting services related to a 2002
acquisition in exchange for a $344,000
97
cash fee to be payable by us in specified circumstances. Terra
subsequently assigned its rights under the Terra agreement to
CrossHarbor Capital Partners LLC, or CrossHarbor, which was also
under the common control of Messrs. Kremer and Byrne. On
September 25, 2008, we entered into a warrant termination
agreement with Messrs. Kremer and Byrne, each of whom still
held more than five percent of our outstanding common stock, and
CrossHarbor and Terra, each of which remained under the common
control of Messrs. Kremer and Byrne. Pursuant to the
warrant termination agreement, we and the other parties agreed
to terminate a warrant pursuant to which CrossHarbor had the
right to purchase up to 740,000 shares of our common stock
at a purchase price of $0.44 per share in exchange for a
$1,959,400 cash payment by us to CrossHarbor. In addition, under
the warrant termination agreement, in consideration of the
termination of the Terra agreement, we agreed to reduce the
exercise price per share under two separate warrants held by
CrossHarbor, each for the purchase of up to 30,000 shares
of our common stock, from $0.44 to $0.01. Immediately following
the consummation of the transactions under the warrant
termination agreement, CrossHarbor transferred one of its
warrants for the purchase of up to 30,000 shares of our
common stock to Mr. Kremer, and the other to Mr. Byrne.
On September 25, 2008, we also entered into a stock
repurchase agreement with Mr. Kremer, pursuant to which we
purchased 666,667 shares of our common stock from
Mr. Kremer, for an aggregate purchase price of $4,546,669,
or $6.82 per share, as a result of which Mr. Kremer ceased
to be a stockholder of our company.
On September 25, 2008, we entered into a warrant
termination agreement with AMCAP Holdings, Ltd, or AMCAP, which
was wholly-owned by Mr. Byrne. Pursuant to the agreement,
we and AMCAP agreed to terminate a warrant pursuant to which
AMCAP had the right to purchase up to 793,686 shares of our
common stock at a purchase price of $0.01 per share in exchange
for a $5,605,002 cash payment from us.
On October 14, 2008, Mr. Byrne transferred the warrant
to purchase up to 30,000 shares of our common stock
transferred to him by CrossHarbor to a charitable institution.
On December 2, 2008, we and the charitable institution
entered into a warrant termination agreement pursuant to which
the charitable institution agreed to terminate the warrant in
exchange for a $204,300 cash payment from us.
On November 11, 2008, AMCAP transferred a warrant to
purchase up to 3,671 shares of our common stock to a
charitable institution. On December 2, 2008, we and the
charitable institution entered into a warrant termination
agreement pursuant to which the charitable institution agreed to
terminate the warrant in exchange for a $25,000 cash payment
from us.
In April 2007, we repurchased from David J. Anderson, our
executive vice president, business development and a member of
our board of directors, 90,000 shares of our common stock
at a purchase price per share of $6.82.
Director
and Officer Indemnification Agreements
We have entered into indemnification agreements with each of our
directors and officers. The indemnification agreements and our
restated certificate of incorporation and restated by-laws
require us to indemnify our directors and officers to the
fullest extent permitted by Delaware law. See
Management Limitation of Liability and
Indemnification.
Registration
Rights
We entered into a stockholder agreement on September 25,
2008 with three of our stockholders, Mr. Sakellaris,
Mr. Byrne and AMCAP. After the closing of this offering and
the sale by the selling stockholders of the shares of our
Class A common stock offered by them hereby, Mr. Byrne
will beneficially own 666,667 shares of our Class A
common stock and AMCAP will hold an exercisable warrant to
purchase up to 202,643 shares of our Class A common
stock. Pursuant to the stockholder agreement, if during the
two-year period following the closing of this offering, we
propose to register shares of our Class A common stock
under the Securities Act, other than under a registration
statement on
Form S-4
or
Form S-8
(or any other successor forms used to register shares issued by
us under an employee benefit plan or dividend reinvestment plan
or pursuant to an acquisition or merger, or any other form for a
similar limited purpose), then we are
98
required to give Mr. Byrne and AMCAP notice of our intent
to make the registration and, subject to certain exceptions,
Mr. Byrne and AMCAP will have the right to request that
some or all of their shares be included in such registration. If
Mr. Byrne or AMCAP makes such a request, then we will be
required to use our commercially reasonable efforts to cause
such shares to be included in that registration statement.
Mr. Byrnes and AMCAPs registration rights under
the stockholder agreement expire upon the earliest of the second
anniversary of the closing of this offering, the time when he or
it no longer holds any registrable securities, which
includes the shares currently held by Mr. Byrne as well as
the shares of our Class A common stock issuable upon
exercise of AMCAPs warrant, and the time when Mr. Byrne
and AMCAP together hold less than two percent of our Class A and
Class B common stock.
The foregoing description of these registration rights is
intended as a summary only and is qualified in its entirety by
reference to the stockholder agreement, which is filed as an
exhibit to the registration statement of which this prospectus
forms a part.
Policies
and Procedures for Related Person Transactions
Our board of directors has adopted a written related person
transaction policy for the review of any transaction,
arrangement or relationship in which we are a participant, the
amount involved exceeds $120,000, and one of our executive
officers, directors, director nominees or five percent
stockholders (or their immediate family members), each of whom
we refer to as a related person, has a direct or
indirect material interest.
If a related person proposes to enter into such a transaction,
arrangement or relationship, which we refer to as a
related person transaction, the related person must
report the proposed related person transaction to our general
counsel. The policy calls for the proposed related person
transaction to be reviewed and, if deemed appropriate, approved
by our audit committee. Whenever practicable, the reporting,
review and approval will occur prior to entry into the
transaction. If the general counsel determines that advance
review and approval is not practicable, then the audit committee
will review, and, in its discretion, may ratify the related
person transaction. The policy also permits the chairman of the
audit committee to review and, if deemed appropriate, approve
proposed related person transactions that arise between audit
committee meetings, subject to ratification by the audit
committee at its next meeting. Any related person transactions
previously approved by the audit committee or otherwise already
existing that are ongoing in nature in nature will be reviewed
annually, or more frequently if the audit committee determines
such review to be necessary.
The audit committee will review all relevant information
available to it about the related person transaction and may
approve or ratify it only if the audit committee determines
that, under all of the circumstances, the transaction is in, or
is not inconsistent with, Amerescos best interests. The
audit committee may impose any conditions on the related person
transaction that it deems appropriate.
The policy provides that transactions involving compensation of
executive officers shall be reviewed and approved by our
compensation committee in the manner specified in its charter.
99
PRINCIPAL
AND SELLING STOCKHOLDERS
This section sets forth certain information regarding the
beneficial ownership of our Class A and Class B common
stock as of February 28, 2010 (adjusted as set forth below)
and immediately after the closing of this offering by:
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each of our directors;
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each of our named executive officers;
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|
each person, or group of affiliated persons, who is known by us
to beneficially own more than five percent of our Class A and
Class B common stock;
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all of our directors and executive officers as a group; and
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|
each selling stockholder.
|
For purposes of the table below, the percentage ownership
calculations for beneficial ownership prior to this offering are
based on 7,271,142 shares of our Class A common stock and
9,000,000 shares of our Class B common stock
outstanding as of February 28, 2010. Our assumed total
outstanding share numbers reflect (i) the reclassification
of all outstanding shares of our common stock as Class A
common stock, (ii) the election by all holders of our
convertible preferred stock, other than Mr. Sakellaris, to
convert all of their shares of our convertible preferred stock
into shares of our Class A common stock and (iii) the
conversion of all outstanding shares of our convertible
preferred stock into shares of our Class B common stock. The
table below assumes that there
are shares
of our Class A common stock and 9,000,000 shares of
our Class B common stock outstanding immediately following
the closing of this offering.
Beneficial ownership is determined in accordance with the rules
of the SEC. These rules generally attribute beneficial ownership
of shares to persons who possess sole or shared voting power or
investment power with respect to our shares. In computing the
number of shares beneficially owned by an individual or entity
and the percentage ownership of that person, shares subject to
options, warrants or other rights held by such person that are
currently exercisable or will become exercisable within
60 days of February 28, 2010 are considered
outstanding, although these shares are not considered
outstanding for purposes of computing the percentage ownership
of any other person.
Except as otherwise indicated in the footnotes to the table
below, all persons listed below have sole voting and investment
power with respect to the shares beneficially owned by them,
subject to applicable community property laws. The information
presented in the table below is not necessarily indicative of
beneficial ownership for any other purpose. Beneficial ownership
representing less than one percent is denoted with an asterisk
(*).
100
Percentage total voting power represents voting power with
respect to all shares of our Class A and Class B
common stock, as a single class. Each holder of Class A
common stock is entitled to one vote per share of Class A
common stock and each holder of Class B common stock is
entitled to votes per share of Class B
common stock. See Description of Capital Stock
Common Stock.
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Shares of
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Class A
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Shares Beneficially Owned Prior to Offering
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Common
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Shares Beneficially Owned After Offering
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Class A
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Class B
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% Total
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Stock
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Class A
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Class B
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% Total
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Common Stock
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Common Stock
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Voting
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Being
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Common Stock
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Common Stock
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Voting
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Name of Beneficial Owner
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Shares
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%
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Shares
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%
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Power
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Offered
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Shares
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%
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Shares
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%
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Power
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Five Percent Stockholders:
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George P.
Sakellaris(1)
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1,675,000
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23.04
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9,000,000
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100.00
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Samuel T.
Byrne(2)
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869,310
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3.12
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Directors and Named Executive Officers:
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Andrew B.
Spence(3)
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237,500
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3.16
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Louis P.
Maltezos(4)
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197,500
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2.64
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William J. Cunningham
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David J. Anderson
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510,000
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7.01
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William M.
Bulger(5)
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75,000
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1.02
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David J. Corrsin
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750,000
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10.31
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Guy W.
Nichols(5)
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75,000
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1.02
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*
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Joseph W.
Sutton(6)
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500,000
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6.88
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All executive officers and directors as a group
(14 persons)(7)
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4,868,750
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57.54
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9,000,000
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100.00
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Other Selling Stockholders:
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(1)
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Mr. Sakellariss address is c/o Ameresco, Inc., 111 Speen
Street, Framingham, Massachusetts 01701.
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(2)
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Includes 202,643 shares of our Class A common stock
issuable upon the exercise of an exercisable warrant held by
AMCAP Holdings, Ltd, or AMCAP, which is wholly-owned by
Mr. Byrne. The address of Mr. Byrne and AMCAP is
c/o CrossHarbor
Capital Partners LLC, One Boston Place, Suite 2300, Boston,
Massachusetts 02108.
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(3)
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Includes 237,500 shares of our Class A common stock
issuable upon the exercise of options that are exercisable
within 60 days of February 28, 2010.
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(4)
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Includes 197,500 shares of our Class A common stock
issuable upon the exercise of options that are exercisable
within 60 days of February 28, 2010.
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(5)
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Includes 75,000 shares of our Class A common stock
issuable upon the exercise of options that are exercisable
within 60 days of February 28, 2010.
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(6)
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Consists of shares of our Class A common stock held by
Sutton Ventures LP. Mr. Sutton is managing member of Sutton
Ventures Group LLC, which is the general partner of Sutton
Ventures LP.
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(7)
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Includes 1,190,000 shares of our Class A common stock
issuable upon the exercise of options that are exercisable
within 60 days of February 28, 2010.
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101
DESCRIPTION
OF CAPITAL STOCK
General
The following description of our capital stock and provisions of
our restated certificate of incorporation and by-laws are
summaries and are qualified by reference to our restated
certificate of incorporation and by-laws that will be in effect
upon the closing of this offering. Copies of these documents
will be filed with the SEC as exhibits to our registration
statement, of which this prospectus forms a part. The
descriptions of our common stock and preferred stock reflect
changes to our capital structure that will occur upon the
closing of this offering.
Upon the closing of this offering, our authorized capital stock
will consist
of shares
of our Class A common stock, par value $0.0001 per
share, shares
of our Class B common stock, par value $0.0001 per share,
and shares
of preferred stock, par value $0.0001 per share.
Common
Stock
Following this offering, we will have two classes of common
stock: Class A common stock and Class B common stock.
The rights of the holders of our Class A common stock and
our Class B common stock will be identical, except that
(i) each share of our Class A common stock will be
entitled to one vote per share while each share of our
Class B common stock will be entitled
to votes per share, and
(ii) each share of our Class B common stock will
convertible into one share of our Class A common stock at
the option of the holder at any time and will automatically
convert into one share of our Class A common stock in
specified circumstances (described below).
Assuming (i) the reclassification of all outstanding shares
of our common stock as Class A common stock and
(ii) the conversion of all outstanding shares of our
convertible preferred stock into shares of our Class B
common stock, as of December 31, 2009, there were:
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7,271,142 shares of our Class A common stock
outstanding, held of record by 38 stockholders;
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9,000,000 shares of our Class B common stock
outstanding, held of record by one stockholder;
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202,643 shares of our Class A common stock issuable
upon the exercise of a warrant outstanding and exercisable as of
December 31, 2009 at an exercise price of $0.01 per share,
which will remain outstanding after this offering if not
exercised prior to this offering; and
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4,725,100 shares of our Class A common stock issuable
upon the exercise of stock options outstanding as of
December 31, 2009 at a weighted-average exercise price of
$5.36 per share.
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In connection with the reclassification of our common stock as
Class A common stock, each outstanding option and warrant
to purchase shares of our common stock will become an option or
warrant to purchase an equal number of shares of our
Class A common stock at the same exercise price per share.
Voting
The holders of our Class A and Class B common stock
will vote together on all matters properly submitted to our
stockholders for their vote (including the election of
directors). The holders of our Class A common stock are
entitled to one vote for each share held on all matters properly
submitted to a vote of our stockholders and do not have any
cumulative voting rights with respect to the election of
directors. The holders of our Class B common stock are
entitled to votes for each share
held on all matters properly submitted to a vote of our
stockholders and do not have any cumulative voting rights with
respect to the election of directors. Delaware law generally
requires holders of our Class A common stock or our
Class B common stock, as applicable, to vote separately as
a single class if we amend our restated certificate of
incorporation in a manner that alters or changes the powers,
preferences or special rights of such class of stock in a manner
that affects them adversely or increases or decreases the number
of shares of that class. However,
102
we have provided in our restated certificate of incorporation
that the holders of neither our Class A common stock nor
our Class B common stock are entitled to a vote as a
separate class in the event that the number of shares of their
respective class is increased or decreased.
Dividends
Holders of our Class A and Class B common stock are
entitled to share equally, on a per-share basis, in any
dividends declared by our board of directors out of funds
legally available therefor, subject to any preferential dividend
or other rights of any then outstanding preferred stock. In the
event a dividend is paid in the form of shares of common stock
or rights to acquire shares of common stock, the holders of our
Class A common stock shall receive shares of our
Class A common stock or rights to acquire shares of our
Class A common stock, as the case may be, and the holders
of shares of our Class B common stock shall receive shares
of our Class B common stock or rights to acquire shares of
our Class B common stock, as the case may be.
Conversion
Our Class A common stock is not convertible into any other
shares of our capital stock.
Our Class B common stock is convertible as follows:
Voluntary Conversion.
Each share of our Class B
common stock is convertible into one share of our Class A
common stock at any time, at the option of the holder.
Mandatory Conversion.
All shares of our Class B
common stock will convert into shares of our Class A common
stock on a
one-for-one
basis in the following instances:
(i) we receive a written consent executed by the holders of
a majority of the shares of our Class B common stock then
outstanding electing to convert all outstanding shares of our
Class B common stock into our Class A common
stock, or
(ii) at such time when the total number of outstanding
shares of our Class B common stock is less
than % of the aggregate number of
shares of our Class A and Class B common stock then
outstanding.
In addition, each share of our Class B common stock will
convert into one share of our Class A common stock upon any
transfer of such share of our Class B common stock, whether
or not for value, except for transfers to (a) certain of
such Class B common stockholders family members or
descendants, entities controlled by such Class B common
stockholder, certain trusts for the benefit of such Class B
common stockholder or such holders family or charitable
organizations established by such Class B common
stockholder or certain members of such holders family or
(b) a pledgee (subject to certain limitations) or nominee
of such Class B common stockholder.
Following the closing of this offering, we may not issue or sell
any shares of our Class B common stock, or any securities
convertible or exercisable into shares of our Class B
common stock, except for any stock splits, stock dividends,
subdivisions, combinations or recapitalizations with respect to
our Class B common stock.
No class of common stock may be subdivided or combined unless
the other class of common stock concurrently is subdivided or
combined in the same proportion and in the same manner.
Liquidation
Rights
In the event of our liquidation or dissolution, holders of our
Class A and Class B common stock are entitled to share
equally, on a per-share basis, in all assets remaining after
payment of all debts and other liabilities, subject to the prior
rights of any then outstanding preferred stock.
Other
Rights
Holders of our Class A and Class B common stock have
no preemptive, subscription or redemption rights.
103
The rights, preferences and privileges of holders of our common
stock are subject to, and may be adversely affected by, the
rights of holders of shares of any series of preferred stock
that we may designate and issue in the future.
Preferred
Stock
Under the terms of our restated certificate of incorporation,
our board of directors is authorized to issue up
to shares
of preferred stock in one or more series without stockholder
approval. Our board of directors has the discretion to determine
the rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption
privileges and liquidation preferences, of each series of
preferred stock, any or all of which may be greater than or
senior to the rights of the either or both of our Class A
and Class B common stock. The issuance of preferred stock
could adversely affect the voting power of holders of either or
both of our Class A and Class B common stock and
reduce the likelihood that such holders will receive dividend
payments or payments on liquidation.
The purpose of authorizing our board of directors to issue
preferred stock and determine its rights and preferences is to
eliminate the delay and uncertainty associated with a
stockholder vote on specific issuances. The issuance of
preferred stock, while providing flexibility in connection with
possible acquisitions, future financings and other corporate
purposes, could have the effect of making it more difficult for
a third party to acquire, or could discourage a third party from
seeking to acquire, a majority of our outstanding stock. In
certain circumstances, an issuance of preferred stock could have
the effect of decreasing the market price of our Class A
common stock. Upon the closing of this offering, there will be
no shares of preferred stock outstanding, and we have no present
plans to issue any shares of preferred stock.
Anti-Takeover
Effects of Delaware Law and Our Restated Certificate of
Incorporation and By-Laws
Delaware law, our restated certificate of incorporation and our
by-laws contain provisions that could have the effect of
delaying or discouraging another party from acquiring control of
us. These provisions, which are summarized below, are intended
to discourage coercive takeover practices and inadequate
takeover bids. These provisions are also intended to encourage
persons seeking to acquire control of us to first negotiate with
our board of directors. In addition, see Description of
Capital StockCommon Stock for a description of our
dual class capital structure.
Staggered
Board of Directors; Removal of Directors
Our restated certificate of incorporation and by-laws divide our
board of directors into three classes with staggered three-year
terms. In addition, a director may be removed only for cause and
only by the affirmative vote of the holders of at least
two-thirds of the votes that all stockholders would be entitled
to cast in any annual election of directors. Any vacancy on our
board of directors, including a vacancy resulting from an
enlargement of our board of directors, may be filled only by
vote of a majority of our directors then in office.
Stockholder
Action by Written Consent; Special Meetings
Our restated certificate of incorporation provides that any
action required or permitted to be taken by our stockholders
must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing
by such holders. Our restated certificate of incorporation and
by-laws also provide that special meetings of our stockholders
can only be called by the chairman of our board of directors,
our chief executive officer or our board of directors.
Advance
Notice Requirements for Stockholder Proposals
Our by-laws establish an advance notice procedure for
stockholder proposals to be brought before an annual meeting of
stockholders, including proposed nominations of persons for
election to our board of directors. Stockholders at an annual
meeting may only consider proposals or nominations specified in
the notice of meeting or brought before the meeting by or at the
direction of our board of directors or by a
104
stockholder of record on the record date for the meeting, who is
entitled to vote at the meeting and who has delivered timely
written notice in proper form to our secretary of the
stockholders intention to bring such business before the
meeting.
Delaware
Business Combination Statute
We are subject to Section 203 of the Delaware General
Corporation Law. Subject to certain exceptions, Section 203
prevents a publicly-held Delaware corporation from engaging in a
business combination with any interested
stockholder for three years following the date that the
person became an interested stockholder, unless (1) the
interested stockholder attained such status with the approval of
our board of directors, (2) the business combination is
approved by our board of directors and stockholders in a
prescribed manner or (3) the interested stockholder
acquired at least 85% of our outstanding voting stock in the
transaction in which it became an interested stockholder. A
business combination includes, among other things, a
merger or consolidation involving us and the interested
stockholder and the sale of more than ten percent of our
assets, and other transactions resulting in a financial benefit
to the interested stockholder. In general, an interested
stockholder is any entity or person beneficially owning
15% or more of our outstanding voting stock and any entity or
person affiliated with or controlling or controlled by such
entity or person. Section 203 would not prevent us from
engaging in a business combination with Mr. Sakellaris even
though he owns greater than five percent of our outstanding
voting stock because he acquired such voting stock before we
were subject to Section 203.
Amendment
of Restated Certificate of Incorporation and
By-Laws
The Delaware General Corporation Law provides generally that the
affirmative vote of a majority of the shares entitled to vote on
any matter is required to amend a corporations certificate
of incorporation or by-laws, unless a corporations
certificate of incorporation or by-laws, as the case may be,
requires a greater percentage. Our by-laws may be amended or
repealed by a majority vote of our board of directors or by the
affirmative vote of the holders of at least two-thirds of the
votes that all our stockholders would be entitled to cast in any
annual election of directors. In addition, the affirmative vote
of the holders of at least two-thirds of the votes that all our
stockholders would be entitled to cast in any annual election of
directors is required to amend or repeal or to adopt any
provisions inconsistent with the bylaw amendment provision or
any of the provisions of our restated certificate of
incorporation described above under Staggered
Board of Directors; Removal of Directors and
Stockholder Action by Written Consent; Special
Meetings.
Transfer
Agent and Registrar
The transfer agent and registrar for our Class A and
Class B common stock
is .
Stock
Market Listing
We expect to apply to list our ordinary shares on either the New
York Stock Exchange or the NASDAQ Global Market under the symbol
.
105
SHARES ELIGIBLE
FOR FUTURE SALE
Prior to this offering, there has been no public market for our
common stock, and a liquid public trading market for our common
stock may not develop or be sustained after this offering. If a
public market does develop, future sales of significant amounts
of our common stock, including shares issued upon exercise of
outstanding options or warrants, or the anticipation of those
sales, could adversely affect the public market prices
prevailing from time to time and could impair our ability to
raise capital through sales of our equity securities. We expect
to apply to list our Class A common stock on either the New
York Stock Exchange or the NASDAQ Global Market under the symbol
.
Our Class B common stock will not be listed on any stock
market or exchange. Due, in part, to the mandatory conversion
features of our Class B common stock, we do not anticipate
that there will ever be a trading market for our Class B
common stock.
Upon the closing of this offering, we will have outstanding an
aggregate
of shares
of Class A common stock and 9,000,000 shares of
Class B common stock, based on 7,271,142 shares of
Class B common stock outstanding as of December 31,
2009, assuming no exercise by the underwriters of their
over-allotment option and no exercise of outstanding options or
an outstanding warrant. Of these shares, all of the shares of
our Class A common stock sold in this offering will be
freely tradable without restriction or further registration
under the Securities Act, except for any shares of our
Class A common stock purchased by our
affiliates, as that term is defined in Rule 144
under the Securities Act, whose sales would be subject to the
Rule 144 resale restrictions described below.
The remaining shares of Class A common stock and all of the
shares of our Class B common stock (and the shares of
Class A common stock that they can be converted into) will
be restricted securities, as that term is defined in
Rule 144 under the Securities Act. As set forth in our
restated certificate of incorporation, upon the consummation of
the sale of any shares of our Class B common stock (except
for sales to family members and certain affiliated persons and
entities), such shares of our Class B common stock will be
automatically converted into shares of our Class A common
stock. These restricted securities are eligible for public sale
only if they are registered under the Securities Act or if they
qualify for an exemption from registration under the Securities
Act. One such safe-harbor exemption is Rule 144, which is
summarized below.
Subject to the
lock-up
agreements described below and the provisions of Rule 144
under the Securities Act, these restricted securities will be
available for sale in the public market as follows:
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Date Available for Sale
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Shares Eligible for Sale
|
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Comment
|
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Date of prospectus
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Shares sold in the offering and shares that can be sold under
Rule 144 that are not subject to a lock-up
|
90 days after date of prospectus
|
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|
Shares that are not subject to a lock-up and can be sold under
Rule 144
|
180 days after date of prospectus
|
|
|
|
Lock-up released; shares can be sold under Rule 144
|
In addition, of the 4,725,100 shares of our Class A
common stock that were issuable upon the exercise of stock
options outstanding as of December 31, 2009, options to
purchase 3,516,775 shares were exercisable as of
December 31, 2009 and, upon exercise, these shares will be
eligible for sale in the public markets, subject to the
lock-up
agreements and securities laws described below. Our outstanding
warrant for 202,643 shares of our Class A common stock
was exercisable as of December 31, 2009, and upon exercise
these shares will be eligible for sale in the public market six
months after the date of exercise, subject to the
lock-up
agreements and securities laws described below.
Rule 144
Affiliate
Resales of Shares
Affiliates of ours must generally comply with Rule 144 if
they wish to sell in the public market any shares of our
Class A common stock or our Class B common stock,
whether or not those shares are restricted
106
securities. Restricted securities are any
securities acquired from us or one of our affiliates in a
transaction not involving a public offering. All shares of our
Class A and Class B common stock issued prior to the
closing of this offering, and the shares of Class A common
stock that our Class B common stock can be converted into,
are considered to be restricted securities. The shares of our
Class A common stock sold in this offering are not
considered to be restricted securities.
In general, subject to the
lock-up
agreements described below, beginning 90 days after the
effective date of the registration statement of which this
prospectus is a part, a person who is an affiliate of ours, or
who was an affiliate of ours at any time during the 90 days
immediately before a sale can sell restricted shares of our
Class A common stock or our Class B common stock in
compliance with the following requirements of Rule 144.
Holding period:
If the shares are restricted
securities, an affiliate must have beneficially owned the shares
of our Class A or Class B common stock for at least
six months.
Manner of sale:
An affiliate must sell its
shares in brokers transactions or certain
riskless principal transactions or to market makers,
each within the meaning of Rule 144.
Limitation on number of shares sold:
An
affiliate is only allowed to sell within any three-month period
an aggregate number of shares of our Class A and our B
common stock that does not exceed:
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for our Class B common stock: one percent of the number of
the total number of shares of our Class A and Class B
common stock then outstanding, which will equal
approximately shares
immediately after this offering; and
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for our Class B common stock converted to Class A
common stock and our Class A common stock, the greater of
(a) one percent of the number of the aggregate number of
shares of our Class A and Class B common stock then
outstanding, which will equal
approximately shares
immediately after this offering or (b) the average weekly
trading volume in our Class A common stock on the stock
exchange where our Class A common stock is traded during
the four calendar weeks preceding either (i) to the extent
that the seller is required to file a notice on Form 144
with respect to such sale, the date of filing such notice,
(ii) date of receipt of the order to execute the
transaction by the broker or (iii) the date of execution of
the transaction with the market maker.
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Current public information:
An affiliate may
only resell its restricted securities to the extent that
adequate current public information, as defined in
Rule 144, is available about us, which, in our case, means
that we have been subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934
for a period of at least 90 days prior to the date of the
sale and we have filed all reports with the SEC required by
those sections during the preceding twelve months (or such
shorter period that we have been subject to these filing
requirements).
Notice on Form 144:
If the number of
shares of either our Class A or Class B common stock
being sold by an affiliate under Rule 144 during any
three-month period exceeds 5,000 shares or has an aggregate
sale price in excess of $50,000, then the seller must file a
notice on Form 144 with the SEC and the stock exchange on
which our Class A common stock is traded concurrently with
either the placing of a sale order with the broker or the
execution directly with a market maker.
Non-Affiliate
Resales of Restricted Shares
Any person or entity who is not an affiliate of ours and who has
not been an affiliate of ours at any time during the three
months preceding a sale is only required to comply with
Rule 144 in connection with sales of restricted shares of
our Class A or Class B common stock. Subject to the
lock-up
agreements described below, those persons may sell shares of our
Class A or Class B common stock that they have
beneficially owned for at least one year without any
restrictions under Rule 144 immediately following the
effective date of the registration statement of which this
prospectus is a part.
107
Further, beginning 90 days after the effective date of the
registration statement of which this prospectus is a part, a
person who is not an affiliate of ours at the time such person
sells shares of either our Class A or Class B common
stock, and has not been an affiliate of ours at any time during
the three months preceding such sale, and who has beneficially
owned such shares of our Class A or Class B common
stock, as applicable, for at least six months but less than a
year, is entitled to sell such shares so long as there is
adequate current public information, as defined in
Rule 144, available about us.
Resales of restricted shares of our Class A and
Class B common stock by non-affiliates are not subject to
the manner of sale, volume limitation or notice filing
provisions of Rule 144, described above.
Rule 701
Rule 701 under the Securities Act applies to shares
purchased from us by our employees, directors or consultants, in
connection with a qualified compensatory stock plan or other
written agreement, either prior to the date of this prospectus
or pursuant to the exercise of options granted prior to the date
of this prospectus. Shares issued in reliance on Rule 701
are restricted securities, but may be sold in the
public market beginning 90 days after the date of this
prospectus (i) by our affiliates, subject to compliance
with the provisions of Rule 144 other than its one-year
holding period requirement, and (ii) by persons other than
our affiliates, subject only to the manner of sale provisions of
Rule 144.
Lock-up
Agreements
Our officers and directors and the holders
of
outstanding shares of our Class A common stock and all of
our outstanding shares of Class B common stock have agreed
with the underwriters, subject to certain exceptions, not to
dispose of or hedge any of our Class A or Class B
common stock or securities convertible into or exchangeable for
shares of our Class A common stock for a period through the
date 180 days after the date of this prospectus, as
modified as described below, except with the prior written
consent of Merrill Lynch, Pierce, Fenner & Smith
Incorporated on behalf of the underwriters.
The
180-day
restricted period will be automatically extended under the
following circumstances:
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if, during the last 17 days of the
180-day
restricted period, we issue an earnings release or announce
material news or a material event, the restrictions described in
the preceding paragraph will continue to apply until the
expiration of the
18-day
period beginning on the issuance of the earnings release or the
announcement of the material news or material event; or
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if, prior to the expiration of the
180-day
restricted period, we announce that we will release earnings
results or become aware that other material news or a material
event will occur during the
16-day
period beginning on the last day of the
180-day
period, the restrictions described in the preceding paragraph
will continue to apply until the expiration of the
18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event, as applicable.
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
currently does not anticipate shortening or waiving any of the
lock-up
agreements and do not have any pre-established conditions for
such modifications or waivers. Merrill Lynch, Pierce,
Fenner & Smith Incorporated may, however, release for
sale in the public market all or any portion of the shares
subject to the
lock-up
agreement.
Stock
Options and Warrants
As of December 31, 2009, there were 202,643 shares of
our Class A common stock issuable upon the exercise of a
warrant outstanding and exercisable as of December 31, 2009
at an exercise price of $0.01 per share, which will remain
outstanding after this offering if not exercised prior to this
offering.
108
As of December 31, 2009, we had outstanding options to
purchase 4,725,100 shares of our Class A common stock
at a weighted-average exercise price of $5.36 per share, of
which options to purchase 3,516,775 shares were exercisable
as of December 31, 2009. Following this offering, we intend
to file a registration statement on
Form S-8
under the Securities Act to register all of the shares subject
to outstanding options and options and other awards issuable
under the 2000 stock plan and the 2010 stock plan. See
ManagementExecutive CompensationStock Option
and Other Compensation Plans for additional information
regarding these plans.
Registration
Rights
Mr. Sakellaris, Mr. Byrne and AMCAP have registration
rights with respect to certain shares of Class A common
stock held by, or issuable to, them. See Related Person
TransactionsRegistration Rights.
109
MATERIAL
U.S. FEDERAL TAX CONSIDERATIONS FOR
NON-U.S.
HOLDERS
The following is a general discussion of material
U.S. federal income and estate tax considerations relating
to ownership and disposition of our Class A common stock by
a
non-U.S. holder.
For purposes of this discussion, the term
non-U.S. holder
means a beneficial owner of our Class A common stock that
is not, for U.S. federal income tax purposes:
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an individual who is a citizen or resident of the United States;
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a corporation, or other entity treated as a corporation for
U.S. federal income tax purposes, created or organized in
or under the laws of the United States or of any political
subdivision of the United States;
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an estate the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust, if a U.S. court is able to exercise primary
supervision over the administration of the trust and one or more
U.S. persons have authority to control all substantial
decisions of the trust or if the trust has a valid election to
be treated as a U.S. person under applicable
U.S. Treasury Regulations.
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An individual may be treated as a resident instead of a
nonresident of the United States in any calendar year for
U.S. federal income tax purposes if the individual was
present in the United States for at least 31 days in that
calendar year and for an aggregate of at least 183 days
during the three-year period ending with the current calendar
year. For purposes of this calculation, all of the days present
in the current year, one-third of the days present in the
immediately preceding year and one-sixth of the days present in
the second preceding year are counted. Residents are taxed for
U.S. federal income tax purposes as if they were
U.S. citizens.
This discussion is based on current provisions of the Code,
existing and proposed U.S. Treasury Regulations promulgated
thereunder, current administrative rulings and judicial
decisions, all as in effect as of the date of this prospectus
and all of which are subject to change or to differing
interpretation, possibly with retroactive effect. Any change
could alter the tax consequences to
non-U.S. holders
described in this prospectus. In addition, the Internal Revenue
Service, or the IRS, could challenge one or more of the tax
consequences described in this prospectus.
We assume in this discussion that each
non-U.S. holder
holds shares of our Class A common stock as a capital asset
(generally, property held for investment). This discussion does
not address all aspects of U.S. federal income and estate
taxation that may be relevant to a particular
non-U.S. holder
in light of that
non-U.S. holders
individual circumstances nor does it address any aspects of
U.S. state, local or
non-U.S. taxes.
This discussion also does not consider any specific facts or
circumstances that may apply to a
non-U.S. holder
and does not address the special tax rules applicable to
particular
non-U.S. holders,
such as:
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insurance companies;
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tax-exempt organizations;
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financial institutions;
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brokers or dealers in securities;
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regulated investment companies;
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pension plans;
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controlled foreign corporations;
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passive foreign investment companies;
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owners that hold our Class A common stock as part of a
straddle, hedge, conversion transaction, synthetic security or
other integrated investment; and
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certain U.S. expatriates.
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110
In addition, this discussion does not address the tax treatment
of partnerships or persons who hold their Class A common
stock through partnerships or other entities which are
transparent for U.S. federal income tax purposes. A partner
in a partnership or other transparent entity that will hold our
Class A common stock should consult his, her or its own tax
advisor regarding the tax consequences of the ownership and
disposition of our Class A common stock through a
partnership or other transparent entity, as applicable.
Prospective investors should consult their own tax advisors
regarding the U.S. federal, state, local and
non-U.S. income and other tax considerations of acquiring,
holding and disposing of our Class A common stock.
Dividends
If we pay distributions on our Class A common stock, those
distributions generally will constitute dividends for
U.S. federal income tax purposes to the extent paid from
our current or accumulated earnings and profits, as determined
under U.S. federal income tax principles. If a distribution
exceeds our current and accumulated earnings and profits, the
excess will be treated as a tax-free return of the
non-U.S. holders
investment, up to such holders tax basis in the
Class A common stock. Any remaining excess will be treated
as capital gain, subject to the tax treatment described below
under the heading Gain on Disposition of Class A
Common Stock.
Dividends paid to a
non-U.S. holder
generally will be subject to withholding of U.S. federal
income tax at a 30% rate or such lower rate as may be specified
by an applicable income tax treaty between the United States and
such holders country of residence. If we determine, at a
time reasonably close to the date of payment of a distribution
on our Class A common stock, that the distribution will not
constitute a dividend because we do not anticipate having
current or accumulated earnings and profits, we intend not to
withhold any U.S. federal income tax on the distribution as
permitted by U.S. Treasury Regulations.
Dividends that are treated as effectively connected with a trade
or business conducted by a
non-U.S.
holder within the United States, and, if an applicable income
tax treaty so provides, that are attributable to a permanent
establishment or a fixed base maintained by the
non-U.S. holder
within the United States, are generally exempt from the 30%
withholding tax if the
non-U.S. holder
satisfies applicable certification and disclosure requirements.
However, such U.S. effectively connected income, net of
specified deductions and credits, is taxed at the same graduated
U.S. federal income tax rates applicable to
U.S. persons (as defined in the Code). Any
U.S. effectively connected income received by a
non-U.S. holder
that is a corporation may also, under certain circumstances, be
subject to an additional branch profits tax at a 30%
rate or such lower rate as may be specified by an applicable
income tax treaty between the United States and such
holders country of residence.
A
non-U.S. holder
of our Class A common stock who claims the benefit of an
applicable income tax treaty between the United States and such
holders country of residence generally will be required to
provide a properly executed IRS
Form W-8BEN
(or successor form) and satisfy applicable certification and
other requirements. Non-U.S holders are urged to consult their
own tax advisors regarding their entitlement to benefits under a
relevant income tax treaty.
A
non-U.S. holder
that is eligible for a reduced rate of U.S. withholding tax
under an income tax treaty may obtain a refund or credit of any
excess amounts withheld by timely filing an appropriate claim
with the IRS.
Gain on
Disposition of Class A Common Stock
A
non-U.S. holder
generally will not be subject to U.S. federal income tax on
gain recognized on a disposition of our Class A common
stock unless:
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the gain is effectively connected with the
non-U.S. holders
conduct of a trade or business in the United States, and, if an
applicable income tax treaty so provides, the gain is
attributable to a permanent establishment maintained by the
non-U.S. holder
in the United States; in these cases, the
non-U.S. holder
will be taxed on a net income basis at the regular graduated
rates and in the manner applicable to U.S. persons, and, if
the
non-U.S. holder
is a foreign corporation, an additional branch profits tax at a
rate of 30%, or a lower rate as may be specified by an
applicable income tax treaty, may also apply;
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111
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the
non-U.S. holder
is an individual present in the United States for 183 days
or more in the taxable year of the disposition and certain other
conditions are met, in which case the
non-U.S. holder
will be subject to a 30% tax (or such lower rate as may be
specified by an applicable income tax treaty) on the net gain
derived from the disposition; or
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we are or have been, at any time during the five-year period
preceding such disposition (or the
non-U.S. holders
holding period, if shorter) a U.S. real property
holding corporation unless our Class A common stock
is regularly traded on an established securities market and the
non-U.S. holder
held no more than five percent of our outstanding Class A
common stock, directly or indirectly, during the shorter of the
five-year
period ending on the date of the disposition or the period that
the
non-U.S. holder
held our Class A common stock. Generally, a corporation is
a U.S. real property holding corporation if the
fair market value of its U.S. real property
interests equals or exceeds 50% of the sum of the fair
market value of its worldwide real property interests plus its
other assets used or held for use in a trade or business. We
believe that we are not currently, and we do not anticipate
becoming, a U.S. real property holding
corporation for U.S. federal income tax purposes.
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Information
Reporting and Backup Withholding Tax
We must report annually to the IRS and to each
non-U.S. holder
the gross amount of the distributions on our Class A common
stock paid to such holder and the tax withheld, if any, with
respect to such distributions.
Non-U.S. holders
may have to comply with specific certification procedures to
establish that the holder is not a U.S. person (as defined
in the Code) in order to avoid backup withholding at the
applicable rate, currently 28%, with respect to dividends on our
Class A common stock. Generally, a holder will comply with
such procedures if it provides a properly executed IRS
Form W-8BEN
or otherwise meets documentary evidence requirements for
establishing that it is a
non-U.S. holder,
or otherwise establishes an exemption.
Information reporting and backup withholding generally will
apply to the proceeds of a disposition of our Class A
common stock by a
non-U.S. holder
effected by or through the U.S. office of any broker,
U.S. or foreign, unless the holder certifies its status as
a
non-U.S. holder
and satisfies certain other requirements, or otherwise
establishes an exemption. Generally, information reporting and
backup withholding will not apply to a payment of disposition
proceeds to a
non-U.S. holder
where the transaction is effected outside the United States
through a
non-U.S. office
of a broker. However, for information reporting purposes,
dispositions effected through a
non-U.S. office
of a broker with substantial U.S. ownership or operations
generally will be treated in a manner similar to dispositions
effected through a U.S. office of a broker.
Non-U.S. holders
should consult their own tax advisors regarding the application
of the information reporting and backup withholding rules to
them.
Copies of information returns may be made available to the tax
authorities of the country in which the
non-U.S. holder
resides or is incorporated under the provisions of a specific
treaty or agreement.
Backup withholding is not an additional tax. Any amounts
withheld under the backup withholding rules from a payment to a
non-U.S. holder
can be refunded or credited against the
non-U.S. holders
U.S. federal income tax liability, if any, provided that an
appropriate claim is timely filed with the IRS.
Federal
Estate Tax
Class A common stock owned or treated as owned by an
individual who is a
non-U.S. holder
(as specially defined for U.S. federal estate tax purposes)
at the time of death will be included in the individuals
gross estate for U.S. federal estate tax purposes and,
therefore, may be subject to U.S. federal estate tax,
unless an applicable estate tax or other treaty provides
otherwise.
The preceding discussion of material U.S. federal tax
considerations is for general information only. It is not tax
advice. Prospective investors should consult their own tax
advisors regarding the particular U.S. federal, state,
local and non- U.S. tax consequences of purchasing, holding
and disposing of our Class A common stock, including the
consequences of any proposed changes in applicable laws.
112
UNDERWRITING
Merrill Lynch, Pierce, Fenner & Smith Incorporated is
acting as representative of each of the underwriters named
below. Subject to the terms and conditions set forth in a
purchase agreement among us, the selling stockholders and the
underwriters, we and the selling stockholders have agreed to
sell to the underwriters, and each of the underwriters has
agreed, severally and not jointly, to purchase from us and the
selling stockholders, the number of shares of Class A
common stock set forth opposite its name below.
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Number
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Underwriter
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of Shares
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Merrill Lynch, Pierce, Fenner & Smith
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Incorporated
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RBC Capital Markets Corporation
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Oppenheimer & Co. Inc.
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Total
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Subject to the terms and conditions set forth in the purchase
agreement, the underwriters have agreed, severally and not
jointly, to purchase all of the shares sold under the purchase
agreement if any of these shares are purchased. If an
underwriter defaults, the purchase agreement provides that the
purchase commitments of the nondefaulting underwriters may be
increased or the purchase agreement may be terminated.
We and the selling stockholders have agreed to indemnify the
underwriters against certain liabilities, including liabilities
under the Securities Act, or to contribute to payments the
underwriters may be required to make in respect of those
liabilities.
The underwriters are offering the shares, subject to prior sale,
when, as and if issued to and accepted by them, subject to
approval of legal matters by their counsel, including the
validity of the shares, and other conditions contained in the
purchase agreement, such as the receipt by the underwriters of
officers certificates and legal opinions. The underwriters
reserve the right to withdraw, cancel or modify offers to the
public and to reject orders in whole or in part.
Commissions
and Discounts
The representative has advised us and the selling stockholders
that the underwriters propose initially to offer the shares to
the public at the public offering price set forth on the cover
page of this prospectus and to dealers at that price less a
concession not in excess of $ per
share. The underwriters may allow, and the dealers may reallow,
a discount not in excess of $ per
share to other dealers. After the initial offering, the public
offering price, concession or any other term of the offering may
be changed.
The following table shows the public offering price,
underwriting discount and proceeds before expenses to us and the
selling stockholders. The information assumes either no exercise
or full exercise by the underwriters of their overallotment
option.
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Per Share
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Without Option
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With Option
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Public offering price
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$
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$
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$
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Underwriting discount
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$
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$
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$
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Proceeds, before expenses, to us
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$
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$
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$
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Proceeds, before expenses, to the selling stockholders
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$
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$
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$
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The expenses of the offering, not including the underwriting
discount, are estimated at $ and
are payable by us and the selling stockholders.
113
Overallotment
Option
We and the selling stockholders have granted an option to the
underwriters to purchase up
to additional
shares at the public offering price, less the underwriting
discount. The underwriters may exercise this option for
30 days from the date of this prospectus solely to cover
any overallotments. If the underwriters exercise this option,
each will be obligated, subject to conditions contained in the
purchase agreement, to purchase a number of additional shares
proportionate to that underwriters initial amount
reflected in the above table.
No Sales
of Similar Securities
We and the selling stockholders, our executive officers and
directors and our other existing security holders have agreed
not to sell or transfer any common stock or securities
convertible into, exchangeable for, exercisable for, or
repayable with common stock, for 180 days after the date of
this prospectus without first obtaining the written consent of
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
Specifically, we and these other persons have agreed, with
certain limited exceptions, not to directly or indirectly
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offer, pledge, sell or contract to sell any common stock;
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sell any option or contract to purchase any common stock;
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purchase any option or contract to sell any common stock;
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grant any option, right or warrant for the sale of any common
stock;
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lend or otherwise dispose of or transfer any common stock;
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request or demand that we file a registration statement related
to the common stock; or
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enter into any swap or other agreement that transfers, in whole
or in part, the economic consequence of ownership of any common
stock whether any such swap or transaction is to be settled by
delivery of shares or other securities, in cash or otherwise.
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We may also issue shares of common stock or securities
convertible into, exchangeable for, exercisable for, or
repayable with in connection with business combinations or
acquisitions of assets or businesses so long as the number of
shares issued does not exceed % of our common stock
outstanding immediately following the closing of this offering.
This
lock-up
provision applies to common stock and to securities convertible
into or exchangeable or exercisable for or repayable with common
stock. It also applies to common stock owned now or acquired
later by the person executing the agreement or for which the
person executing the agreement later acquires the power of
disposition. In the event that either (x) during the last
17 days of the
lock-up
period referred to above, we issue an earnings release or
material news or a material event relating to us occurs or
(y) prior to the expiration of the
lock-up
period, we announce that we will release earnings results or
become aware that material news or a material event will occur
during the
16-day
period beginning on the last day of the
lock-up
period, the restrictions described above shall continue to apply
until the expiration of the
18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
Listing
We expect the shares to be approved for listing on
the
under the symbol
.
If the listing will be on the New York Stock Exchange, in order
to meet the requirements for listing on that exchange, the
underwriters will have undertaken to sell a minimum number of
shares to a minimum number of beneficial owners as required by
that exchange.
Before this offering, there has been no public market for our
common stock. The initial public offering price will be
determined through negotiations among us, the selling
stockholders and the representative. In addition to prevailing
market conditions, the factors to be considered in determining
the initial public offering price are
114
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the valuation multiples of publicly-traded companies that the
representative believes to be comparable to us;
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our financial information;
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the history of, and the prospects for, our company and the
industry in which we compete;
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an assessment of our management, its past and present
operations, and the prospects for, and timing of, our future
revenue; and
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|
|
the above factors in relation to market values and various
valuation measures of other companies engaged in activities
similar to ours.
|
An active trading market for the shares may not develop. It is
also possible that after the offering the shares will not trade
in the public market at or above the initial public offering
price.
The underwriters do not expect to sell more than five percent of
the shares in the aggregate to accounts over which they exercise
discretionary authority.
Price
Stabilization, Short Positions and Penalty Bids
Until the distribution of the shares is completed, SEC rules may
limit underwriters and selling group members from bidding for
and purchasing our common stock. However, the representative may
engage in transactions that stabilize the price of the common
stock, such as bids or purchases to peg, fix or maintain that
price.
In connection with the offering, the underwriters may purchase
and sell our common stock in the open market. These transactions
may include short sales, purchases on the open market to cover
positions created by short sales and stabilizing transactions.
Short sales involve the sale by the underwriters of a greater
number of shares than they are required to purchase in the
offering. Covered short sales are sales made in an
amount not greater than the underwriters overallotment
option described above. The underwriters may close out any
covered short position by either exercising their overallotment
option or purchasing shares in the open market. In determining
the source of shares to close out the covered short position,
the underwriters will consider, among other things, the price of
shares available for purchase in the open market as compared to
the price at which they may purchase shares through the
overallotment option. Naked short sales are sales in
excess of the overallotment option. The underwriters must close
out any naked short position by purchasing shares in the open
market. A naked short position is more likely to be created if
the underwriters are concerned that there may be downward
pressure on the price of our common stock in the open market
after pricing that could adversely affect investors who purchase
in the offering. Stabilizing transactions consist of various
bids for or purchases of shares of common stock made by the
underwriters in the open market prior to the completion of the
offering.
The underwriters may also impose a penalty bid. This occurs when
a particular underwriter repays to the underwriters a portion of
the underwriting discount received by it because the
representative has repurchased shares sold by or for the account
of such underwriter in stabilizing or short covering
transactions.
Similar to other purchase transactions, the underwriters
purchases to cover the syndicate short sales may have the effect
of raising or maintaining the market price of our common stock
or preventing or retarding a decline in the market price of our
common stock. As a result, the price of our common stock may be
higher than the price that might otherwise exist in the open
market. The underwriters may conduct these transactions on the ,
in the
over-the-counter
market or otherwise.
Neither we nor any of the underwriters make any representation
or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of
our common stock. In addition, neither we nor any of the
underwriters make any representation that the representative
will engage in these transactions or that these transactions,
once commenced, will not be discontinued without notice.
115
Electronic
Offer, Sale and Distribution of Shares
In connection with the offering, certain of the underwriters or
securities dealers may distribute prospectuses by electronic
means, such as
e-mail.
In
those cases, prospective investors may view offering terms
online. Depending upon the particular underwriter, prospective
investors may be allowed to place orders online. The
underwriters may agree with us to allocate a specific number of
shares for sale to online brokerage account holders. Any such
allocation for online distributions will be made on the same
basis as other allocations.
Other than this prospectus in electronic format, the information
concerning any underwriters web site and any information
contained in any other web site maintained by an underwriter is
not intended to be part of this prospectus or the registration
statement, has not been approved
and/or
endorsed by us or any underwriter in its capacity as
underwriter. Investors should not rely on such information.
In addition, Merrill Lynch, Pierce, Fenner & Smith
Incorporated may facilitate Internet distribution for this
offering to certain of its Internet subscription customers.
Merrill Lynch, Pierce, Fenner & Smith Incorporated may
allocate a limited number of shares for sale to its online
brokerage customers. An electronic prospectus is available on
the Internet web site maintained by Merrill Lynch, Pierce,
Fenner & Smith Incorporated. Other than the prospectus
in electronic format, the information on the Merrill Lynch,
Pierce, Fenner & Smith Incorporated web site is not
part of this prospectus.
Conflicts
of Interest
An affiliate of Merrill Lynch, Pierce, Fenner & Smith
Incorporated, one of the underwriters, will receive more than
five percent of the net proceeds from this offering when we
repay our $50 million revolving senior secured credit
facility. See Use of Proceeds. Because of the manner
in which the proceeds will be used, the offering will be
conducted in accordance with FINRA Rule 5510(h)(1) and NASD
Rule 2720. These rules require, among other things, that a
qualified independent underwriter has participated in the
preparation of, and has exercised the usual standards of
due diligence in respect to, the registration
statement and this prospectus. Oppenheimer & Co. Inc.
has agreed to act as qualified independent underwriter for the
offering and to undertake the legal responsibilities and
liabilities of an underwriter under the Securities Act of 1933,
specifically including those inherent in Section 11 of the
Securities Act. Oppenheimer & Co. Inc. will not receive any
additional compensation for acting in this capacity in
connection with the offering. We have agreed to indemnify
Oppenheimer & Co. Inc. against liabilities incurred in
connection with acting as a qualified independent underwriter,
including liabilities under the Securities Act.
Other
Relationships
Bank of America, N.A., an affiliate of Merrill Lynch, Pierce,
Fenner & Smith Incorporated, is the agent and a lender
under our revolving senior secured credit facility. Some of the
underwriters and their affiliates have engaged in, and may in
the future engage in, investment banking and other commercial
dealings in the ordinary course of business with us or our
affiliates. They have received, or may in the future receive,
customary fees and commissions for these transactions.
Notice to
Prospective Investors in the EEA
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a
Relevant Member State) an offer to the public of any
shares which are the subject of the offering contemplated by
this prospectus may not be made in that Relevant Member State,
except that an offer to the public in that Relevant Member State
of any shares may be made at any time under the following
exemptions under the Prospectus Directive, if they have been
implemented in that Relevant Member State:
(a) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
116
(b) to any legal entity which has two or more of
(1) an average of at least 250 employees during the
last financial year; (2) a total balance sheet of more than
43,000,000 and (3) an annual net turnover of more
than 50,000,000, as shown in its last annual or
consolidated accounts;
(c) by the underwriters to fewer than 100 natural or legal
persons (other than qualified investors as defined
in the Prospectus Directive) subject to obtaining the prior
consent of the representative for any such offer; or
(d) in any other circumstances falling within
Article 3(2) of the Prospectus Directive;
provided that no such offer of shares shall result in a
requirement for the publication by us or any representative of a
prospectus pursuant to Article 3 of the Prospectus
Directive.
Any person making or intending to make any offer of shares
within the EEA should only do so in circumstances in which no
obligation arises for us or any of the underwriters to produce a
prospectus for such offer. Neither we nor the underwriters have
authorized, nor do they authorize, the making of any offer of
shares through any financial intermediary, other than offers
made by the underwriters which constitute the final offering of
shares contemplated in this prospectus.
For the purposes of this provision, and your representation
below, the expression an offer to the public in
relation to any shares in any Relevant Member State means the
communication in any form and by any means of sufficient
information on the terms of the offer and any shares to be
offered so as to enable an investor to decide to purchase any
shares, as the same may be varied in that Relevant Member State
by any measure implementing the Prospectus Directive in that
Relevant Member State and the expression Prospectus
Directive means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Each person in a Relevant Member State who receives any
communication in respect of, or who acquires any shares under,
the offer of shares contemplated by this prospectus will be
deemed to have represented, warranted and agreed to and with us
and each underwriter that:
(A) it is a qualified investor within the
meaning of the law in that Relevant Member State implementing
Article 2(1)(e) of the Prospectus Directive; and
(B) in the case of any shares acquired by it as a financial
intermediary, as that term is used in Article 3(2) of the
Prospectus Directive, (i) the shares acquired by it in the
offering have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in any
Relevant Member State other than qualified investors
(as defined in the Prospectus Directive), or in circumstances in
which the prior consent of the representative has been given to
the offer or resale; or (ii) where shares have been
acquired by it on behalf of persons in any Relevant Member State
other than qualified investors, the offer of those shares to it
is not treated under the Prospectus Directive as having been
made to such persons.
In addition, in the United Kingdom, this document is being
distributed only to, and is directed only at, and any offer
subsequently made may only be directed at persons who are
qualified investors (as defined in the Prospectus
Directive) (i) who have professional experience in matters
relating to investments falling within Article 19
(5) of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005, as amended (the
Order)
and/or
(ii) who are high net worth companies (or persons to whom
it may otherwise be lawfully communicated) falling within
Article 49(2)(a) to (d) of the Order (all such persons
together being referred to as relevant persons).
This document must not be acted on or relied on in the United
Kingdom by persons who are not relevant persons. In the United
Kingdom, any investment or investment activity to which this
document relates is only available to, and will be engaged in
with, relevant persons.
Notice to
Prospective Investors in Switzerland
This document, as well as any other material relating to the
shares which are the subject of the offering contemplated by
this prospectus, do not constitute an issue prospectus pursuant
to Article 652a
and/or
1156
of the Swiss Code of Obligations. The shares will not be listed
on the SIX Swiss Exchange and,
117
therefore, the documents relating to the shares, including, but
not limited to, this document, do not claim to comply with the
disclosure standards of the listing rules of SIX Swiss Exchange
and corresponding prospectus schemes annexed to the listing
rules of the SIX Swiss Exchange. The shares are being offered in
Switzerland by way of a private placement,
i.e.
, to a
small number of selected investors only, without any public
offer and only to investors who do not purchase the shares with
the intention to distribute them to the public. The investors
will be individually approached by the issuer from time to time.
This document, as well as any other material relating to the
shares, is personal and confidential and do not constitute an
offer to any other person. This document may only be used by
those investors to whom it has been handed out in connection
with the offering described herein and may neither directly nor
indirectly be distributed or made available to other persons
without express consent of the issuer. It may not be used in
connection with any other offer and shall in particular not be
copied
and/or
distributed to the public in (or from) Switzerland.
Notice to
Prospective Investors in the Dubai International Financial
Centre
This document relates to an exempt offer in accordance with the
Offered Securities Rules of the Dubai Financial Services
Authority. This document is intended for distribution only to
persons of a type specified in those rules. It must not be
delivered to, or relied on by, any other person. The Dubai
Financial Services Authority has no responsibility for reviewing
or verifying any documents in connection with exempt offers. The
Dubai Financial Services Authority has not approved this
document nor taken steps to verify the information set out in
it, and has no responsibility for it. The shares which are the
subject of the offering contemplated by this prospectus may be
illiquid
and/or
subject to restrictions on their resale. Prospective purchasers
of the shares offered should conduct their own due diligence on
the shares. If you do not understand the contents of this
document you should consult an authorised financial adviser.
118
LEGAL
MATTERS
The validity of the Class A common stock being offered will
be passed upon for us by Wilmer Cutler Pickering Hale and Dorr
LLP, Boston, Massachusetts. The underwriters are represented by
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
Boston, Massachusetts, in connection with certain legal matters
related to this offering.
EXPERTS
The consolidated financial statements as of December 31,
2008 and December 31, 2009 and for each of the three years
in the period ended December 31, 2009 included in this
prospectus have been so included in reliance on the report of
Caturano and Company, P.C., an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
119
WHERE YOU
CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on
Form S-1
under the Securities Act of 1933 with respect to the shares of
our Class A common stock to be sold in this offering. This
prospectus, which constitutes part of the registration
statement, does not include all of the information contained in
the registration statement and the exhibits, schedules and
amendments to the registration statement. Some items are omitted
in accordance with the rules and regulations of the SEC. For
further information with respect to us and our Class A
common stock, we refer you to the registration statement and to
the exhibits and schedules to the registration statement filed
as part of the registration statement. Statements contained in
this prospectus about the contents of any contract or any other
document filed as an exhibit are not necessarily complete and in
each instance we refer you to the copy of the contract or other
documents filed as an exhibit to the registration statement.
Each of theses statements is qualified in all respects by this
reference.
You may read and copy the registration statement of which this
prospectus is a part at the SECs public reference room,
which is located at 100 F Street, N.E.,
Room 1580, Washington, D.C. 20549. You can request
copies of the registration statement by writing to the SEC and
paying a fee for the copying cost. Please call the SEC at
1-800-SEC-0330
for more information about the operation of the SECs
public reference room. In addition, the SEC maintains an
Internet website, located at www.sec.gov, which contains
reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC. You may
access the registration statement of which this prospectus is a
part at the SECs Internet website.
Upon the closing of the offering, we will become subject to the
full informational and periodic reporting requirements of the
Exchange Act. We will fulfill our obligations with respect to
such requirements by filing periodic reports and other
information with the SEC. These documents will also be publicly
available, free of charge, on our website, www.ameresco.com. We
intend to furnish our stockholders with annual reports
containing consolidated financial statements certified by an
independent registered public accounting firm.
120
AMERESCO,
INC.
|
|
|
|
|
|
|
|
F-2
|
|
Consolidated Financial Statements:
|
|
|
|
|
|
|
|
F-3
|
|
|
|
|
F-4
|
|
|
|
|
F-5
|
|
|
|
|
F-6
|
|
|
|
|
F-8
|
|
F-1
REPORT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Stockholders of Ameresco, Inc. and Subsidiaries
We have audited the accompanying consolidated balances sheets of
Ameresco, Inc. and Subsidiaries as of December 31, 2009 and
2008, and the related consolidated statements of income and
comprehensive income, changes in stockholders equity and
cash flows for each of the three years in the period ended
December 31, 2009. These financial statements are the
responsibility of the Companys management. Our
responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. The Company is not required to
have, nor were we engaged to perform, an audit of its internal
control over financial reporting. Our audit included
consideration of internal controls over financial reporting as a
basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion
on the effectiveness of the Companys controls over
financial reporting. Accordingly, we express no such opinion. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred
to above present fairly, in all material respects, the financial
position of Ameresco, Inc. and Subsidiaries as of
December 31, 2009 and 2008, and the results of their
operations and their cash flows for each of the years in the
period ended December 31, 2009, in conformity with
U.S. generally accepted accounting principles.
/s/ Caturano and Company, P.C.
CATURANO AND COMPANY, P.C.
March 31, 2010
Boston, Massachusetts
F-2
AMERESCO,
INC.
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2009
|
|
|
ASSETS
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
18,149,145
|
|
|
$
|
47,927,540
|
|
Restricted cash
|
|
|
7,743,238
|
|
|
|
9,249,885
|
|
Accounts receivable, net
|
|
|
49,073,084
|
|
|
|
61,279,515
|
|
Accounts receivable retainage
|
|
|
12,907,288
|
|
|
|
9,242,288
|
|
Costs and estimated earnings in excess of billings
|
|
|
9,755,691
|
|
|
|
14,009,076
|
|
Inventory, net
|
|
|
7,460,671
|
|
|
|
4,237,909
|
|
Prepaid expenses and other current assets
|
|
|
6,368,279
|
|
|
|
8,077,761
|
|
Deferred income taxes
|
|
|
9,540,208
|
|
|
|
9,279,473
|
|
Project development costs
|
|
|
10,434,641
|
|
|
|
8,468,974
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
131,432,245
|
|
|
|
171,772,421
|
|
|
|
|
|
|
|
|
|
|
Federal ESPC receivable financing
|
|
|
25,585,217
|
|
|
|
51,397,347
|
|
Property and equipment, net
|
|
|
3,713,218
|
|
|
|
4,373,256
|
|
Project assets, net
|
|
|
103,053,353
|
|
|
|
117,637,990
|
|
Deferred financing fees, net
|
|
|
1,032,506
|
|
|
|
3,582,560
|
|
Goodwill
|
|
|
13,640,265
|
|
|
|
16,132,429
|
|
Other assets
|
|
|
13,570,169
|
|
|
|
10,648,605
|
|
|
|
|
|
|
|
|
|
|
|
|
|
160,594,728
|
|
|
|
203,772,187
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
292,026,973
|
|
|
$
|
375,544,608
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Current portion of long-term debt
|
|
$
|
5,142,757
|
|
|
$
|
8,093,016
|
|
Accounts payable
|
|
|
46,387,522
|
|
|
|
75,578,378
|
|
Accrued expenses
|
|
|
16,367,193
|
|
|
|
18,362,674
|
|
Billings in excess of cost and estimated earnings
|
|
|
20,860,311
|
|
|
|
28,166,364
|
|
Income taxes payable
|
|
|
2,209,386
|
|
|
|
2,129,529
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
90,967,169
|
|
|
|
132,329,961
|
|
|
|
|
|
|
|
|
|
|
Long-term debt, less current portion
|
|
|
90,980,463
|
|
|
|
102,807,203
|
|
Subordinated debt
|
|
|
2,998,750
|
|
|
|
2,998,750
|
|
Deferred income taxes
|
|
|
12,160,724
|
|
|
|
11,901,645
|
|
Deferred grant income (Note 5)
|
|
|
|
|
|
|
4,158,508
|
|
Other liabilities
|
|
|
20,833,612
|
|
|
|
18,578,754
|
|
|
|
|
|
|
|
|
|
|
|
|
|
126,973,549
|
|
|
|
140,444,860
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies (Note 13)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
Series A convertible preferred stock, $0.0001 par
value, 3,500,000 shares authorized, 3,210,000 shares
issued and outstanding
|
|
|
321
|
|
|
|
321
|
|
Common stock, $0.0001 par value, 30,000,000 shares
authorized, 7,130,084 shares issued and 4,844,392
outstanding at December 31, 2008, 8,999,084 shares
issued and 6,641,142 outstanding at December 31, 2009
|
|
|
713
|
|
|
|
900
|
|
Additional paid-in capital
|
|
|
4,346,790
|
|
|
|
10,467,212
|
|
Retained earnings
|
|
|
77,975,837
|
|
|
|
97,882,985
|
|
Less treasury stock, at cost, 2,285,692 shares
and 2,357,942
|
|
|
|
|
|
|
|
|
shares, respectively
|
|
|
(7,538,653
|
)
|
|
|
(8,413,601
|
)
|
Accumulated other comprehensive (loss) income
|
|
|
(698,753
|
)
|
|
|
2,831,970
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
74,086,255
|
|
|
|
102,769,787
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
292,026,973
|
|
|
$
|
375,544,608
|
|
|
|
|
|
|
|
|
|
|
F-3
AMERESCO,
INC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
Energy efficiency revenue
|
|
$
|
345,935,912
|
|
|
$
|
325,031,789
|
|
|
$
|
340,635,122
|
|
Renewable energy revenue
|
|
|
32,541,298
|
|
|
|
70,821,940
|
|
|
|
87,881,467
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
378,477,210
|
|
|
|
395,853,729
|
|
|
|
428,516,589
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Direct expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Energy efficiency expenses
|
|
|
285,966,267
|
|
|
|
259,018,970
|
|
|
|
282,344,502
|
|
Renewable energy expenses
|
|
|
26,071,557
|
|
|
|
59,550,958
|
|
|
|
66,472,031
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
312,037,824
|
|
|
|
318,569,928
|
|
|
|
348,816,533
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
66,439,386
|
|
|
|
77,283,801
|
|
|
|
79,700,056
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Salaries and benefits
|
|
|
25,892,212
|
|
|
|
30,288,750
|
|
|
|
28,273,987
|
|
Project development costs
|
|
|
8,062,996
|
|
|
|
13,106,407
|
|
|
|
9,599,862
|
|
General, administrative and other
|
|
|
13,087,106
|
|
|
|
9,212,872
|
|
|
|
16,532,355
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
47,042,314
|
|
|
|
52,608,029
|
|
|
|
54,406,204
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
19,397,072
|
|
|
|
24,675,772
|
|
|
|
25,293,852
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other (expense) income, net (Note 16)
|
|
|
(3,138,067
|
)
|
|
|
(5,187,545
|
)
|
|
|
1,562,910
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before provision for income taxes
|
|
|
16,259,005
|
|
|
|
19,488,227
|
|
|
|
26,856,762
|
|
Income tax provision
|
|
|
(5,713,590
|
)
|
|
|
(1,215,127
|
)
|
|
|
(6,949,614
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
10,545,415
|
|
|
|
18,273,100
|
|
|
|
19,907,148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustment
|
|
|
3,306,152
|
|
|
|
(5,059,128
|
)
|
|
|
3,530,723
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
$
|
13,851,567
|
|
|
$
|
13,213,972
|
|
|
$
|
23,437,871
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per share attributable to common shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
1.90
|
|
|
$
|
3.42
|
|
|
$
|
3.98
|
|
Diluted
|
|
$
|
0.60
|
|
|
$
|
1.09
|
|
|
$
|
1.25
|
|
Weighted average common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
5,560,511
|
|
|
|
5,339,055
|
|
|
|
4,995,956
|
|
Diluted
|
|
|
17,698,569
|
|
|
|
16,789,954
|
|
|
|
15,964,317
|
|
F-4
AMERESCO,
INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
|
|
|
|
|
|
|
Series A Preferred
|
|
|
|
|
|
|
|
|
Additional
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive
|
|
|
Total
|
|
|
|
Stock
|
|
|
Common Stock
|
|
|
Paid-in
|
|
|
Retained
|
|
|
Treasury Stock
|
|
|
Income
|
|
|
Stockholders
|
|
|
|
Shares
|
|
|
Amount
|
|
|
Shares
|
|
|
Amount
|
|
|
Capital
|
|
|
Earnings
|
|
|
Shares
|
|
|
Amount
|
|
|
(Loss)
|
|
|
Equity
|
|
|
Balance, December 31, 2006
|
|
|
3,210,000
|
|
|
$
|
321
|
|
|
|
7,040,084
|
|
|
$
|
704
|
|
|
$
|
6,584,141
|
|
|
$
|
49,426,862
|
|
|
|
1,252,000
|
|
|
$
|
(103,239
|
)
|
|
$
|
1,054,223
|
|
|
$
|
56,963,012
|
|
Cumulative effect of change in accounting
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(269,540
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(269,540
|
)
|
Repurchase of restricted stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
367,025
|
|
|
|
(2,521,245
|
)
|
|
|
|
|
|
|
(2,521,245
|
)
|
Exercise of stock options
|
|
|
|
|
|
|
|
|
|
|
76,000
|
|
|
|
8
|
|
|
|
74,007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
74,015
|
|
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,678,638
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,678,638
|
|
Foreign currency translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,306,152
|
|
|
|
3,306,152
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,545,415
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,545,415
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2007
|
|
|
3,210,000
|
|
|
$
|
321
|
|
|
|
7,116,084
|
|
|
$
|
712
|
|
|
$
|
9,336,786
|
|
|
$
|
59,702,737
|
|
|
|
1,619,025
|
|
|
$
|
(2,624,484
|
)
|
|
$
|
4,360,375
|
|
|
$
|
70,776,447
|
|
Repurchase of stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
666,667
|
|
|
|
(4,914,169
|
)
|
|
|
|
|
|
|
(4,914,169
|
)
|
Repurchase of warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(7,998,001
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(7,998,001
|
)
|
Exercise of stock options
|
|
|
|
|
|
|
|
|
|
|
14,000
|
|
|
|
1
|
|
|
|
67,249
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
67,250
|
|
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,940,756
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,940,756
|
|
Foreign currency translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,059,128
|
)
|
|
|
(5,059,128
|
)
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18,273,100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18,273,100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2008
|
|
|
3,210,000
|
|
|
$
|
321
|
|
|
|
7,130,084
|
|
|
$
|
713
|
|
|
$
|
4,346,790
|
|
|
$
|
77,975,837
|
|
|
|
2,285,692
|
|
|
$
|
(7,538,653
|
)
|
|
$
|
(698,753
|
)
|
|
$
|
74,086,255
|
|
Vesting of 2006 stock issuance
|
|
|
|
|
|
|
|
|
|
|
1,000,000
|
|
|
|
100
|
|
|
|
2,077,028
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,077,128
|
|
Repurchase of restricted stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
72,250
|
|
|
|
(874,948
|
)
|
|
|
|
|
|
|
(874,948
|
)
|
Exercise of stock options
|
|
|
|
|
|
|
|
|
|
|
869,000
|
|
|
|
87
|
|
|
|
874,673
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
874,760
|
|
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,168,721
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,168,721
|
|
Foreign currency translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,530,723
|
|
|
|
3,530,723
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19,907,148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19,907,148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2009
|
|
|
3,210,000
|
|
|
$
|
321
|
|
|
|
8,999,084
|
|
|
$
|
900
|
|
|
$
|
10,467,212
|
|
|
$
|
97,882,985
|
|
|
|
2,357,942
|
|
|
$
|
(8,413,601
|
)
|
|
$
|
2,831,970
|
|
|
$
|
102,769,787
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-5
AMERESCO,
INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
10,545,415
|
|
|
$
|
18,273,100
|
|
|
$
|
19,907,148
|
|
Adjustments to reconcile net income to cash provided by
operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation of project assets
|
|
|
2,845,131
|
|
|
|
2,713,407
|
|
|
|
5,260,805
|
|
Depreciation of property and equipment
|
|
|
1,056,197
|
|
|
|
1,064,859
|
|
|
|
1,372,885
|
|
Impairment of projects assets
|
|
|
1,997,003
|
|
|
|
3,500,000
|
|
|
|
|
|
Amortization of deferred financing fees
|
|
|
323,587
|
|
|
|
238,454
|
|
|
|
254,705
|
|
Provision for bad debts
|
|
|
208,159
|
|
|
|
1,092,294
|
|
|
|
552,368
|
|
Gain relating to certain business acquisitions
|
|
|
|
|
|
|
(5,850,479
|
)
|
|
|
|
|
Gain on sale of assets
|
|
|
(2,300,217
|
)
|
|
|
|
|
|
|
(691,292
|
)
|
Unrealized (gain) loss on interest rate swaps
|
|
|
1,365,813
|
|
|
|
2,831,524
|
|
|
|
(2,263,802
|
)
|
Stock-based compensation expense
|
|
|
2,678,638
|
|
|
|
2,940,756
|
|
|
|
3,168,721
|
|
Deferred income taxes
|
|
|
(3,630,780
|
)
|
|
|
(2,071,600
|
)
|
|
|
3,400,628
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
(Increase) decrease in:
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted cash draws
|
|
|
20,720,436
|
|
|
|
25,519,347
|
|
|
|
33,051,426
|
|
Accounts receivable
|
|
|
(8,063,037
|
)
|
|
|
(3,227,279
|
)
|
|
|
(11,033,926
|
)
|
Accounts receivable retainage
|
|
|
(3,692,345
|
)
|
|
|
(115,488
|
)
|
|
|
5,029,832
|
|
Federal ESPC receivable financing
|
|
|
(9,320,783
|
)
|
|
|
(26,301,019
|
)
|
|
|
(52,900,979
|
)
|
Inventory
|
|
|
(63,196
|
)
|
|
|
(3,821,507
|
)
|
|
|
3,222,762
|
|
Costs and estimated earnings in excess of billings
|
|
|
7,163,330
|
|
|
|
3,939,285
|
|
|
|
(3,651,857
|
)
|
Prepaid expenses and other current assets
|
|
|
2,830,274
|
|
|
|
(2,337,926
|
)
|
|
|
(1,591,213
|
)
|
Project development costs
|
|
|
(2,851,011
|
)
|
|
|
(3,623,396
|
)
|
|
|
1,987,761
|
|
Other assets
|
|
|
(200,471
|
)
|
|
|
(1,934,563
|
)
|
|
|
3,846,224
|
|
Increase (decrease) in:
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses
|
|
|
(4,019,297
|
)
|
|
|
(2,472,682
|
)
|
|
|
27,280,548
|
|
Billings in excess of cost and estimated earnings
|
|
|
9,847,732
|
|
|
|
(4,602,608
|
)
|
|
|
6,819,869
|
|
Other liabilities
|
|
|
6,224,033
|
|
|
|
(6,932,531
|
)
|
|
|
8,945
|
|
Income taxes payable
|
|
|
(3,404,810
|
)
|
|
|
2,525,472
|
|
|
|
2,264,752
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
30,259,801
|
|
|
|
1,347,420
|
|
|
|
45,296,310
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
(1,789,416
|
)
|
|
|
(1,863,243
|
)
|
|
|
(1,797,949
|
)
|
Purchases of project assets
|
|
|
(21,019,927
|
)
|
|
|
(41,158,695
|
)
|
|
|
(19,841,648
|
)
|
Acquisitions, net of cash received
|
|
|
(10,780,467
|
)
|
|
|
|
|
|
|
(674,110
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(33,589,810
|
)
|
|
|
(43,021,938
|
)
|
|
|
(22,313,707
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-6
AMERESCO,
INC.
CONSOLIDATED
STATEMENTS OF CASH FLOWS (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments of financing fees
|
|
|
(73,652
|
)
|
|
|
(880,044
|
)
|
|
|
(2,804,759
|
)
|
Proceeds from exercise of stock options
|
|
|
74,015
|
|
|
|
67,250
|
|
|
|
874,760
|
|
Repurchase of stock
|
|
|
(2,521,245
|
)
|
|
|
(4,914,169
|
)
|
|
|
(874,948
|
)
|
Repurchase of warrants
|
|
|
|
|
|
|
(7,998,001
|
)
|
|
|
|
|
Proceeds from (repayments of) revolving senior secured credit
facility
|
|
|
|
|
|
|
34,493,460
|
|
|
|
(14,578,242
|
)
|
Repayment of senior secured term and revolving credit facility
|
|
|
(2,500,000
|
)
|
|
|
(2,500,000
|
)
|
|
|
|
|
Proceeds from long-term debt financing
|
|
|
6,173,948
|
|
|
|
9,277,043
|
|
|
|
28,196,538
|
|
Restricted cash
|
|
|
|
|
|
|
(2,400,580
|
)
|
|
|
(3,092,590
|
)
|
Payments of long-term debt
|
|
|
(4,382,782
|
)
|
|
|
(2,940,368
|
)
|
|
|
(3,592,073
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by financing activities
|
|
$
|
(3,229,716
|
)
|
|
$
|
22,204,591
|
|
|
$
|
4,128,686
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate changes on cash
|
|
$
|
1,998,055
|
|
|
$
|
(3,273,211
|
)
|
|
$
|
2,667,108
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (decrease) increase in cash and cash equivalents
|
|
|
(4,561,670
|
)
|
|
|
(22,743,138
|
)
|
|
|
29,778,395
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, beginning of year
|
|
|
45,453,953
|
|
|
|
40,892,283
|
|
|
|
18,149,145
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of year
|
|
$
|
40,892,283
|
|
|
$
|
18,149,145
|
|
|
$
|
47,927,540
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid during the period for:
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
2,481,849
|
|
|
$
|
2,431,534
|
|
|
$
|
2,904,970
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes
|
|
$
|
8,063,883
|
|
|
$
|
5,304,148
|
|
|
$
|
2,145,742
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of noncash investing and financing
transactions:
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisitions, net of cash received:
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
$
|
2,419,386
|
|
|
$
|
|
|
|
$
|
|
|
Inventory
|
|
|
3,575,968
|
|
|
|
|
|
|
|
|
|
Prepaids and other assets
|
|
|
132,500
|
|
|
|
|
|
|
|
18,177
|
|
Property and equipment
|
|
|
78,613
|
|
|
|
|
|
|
|
113,842
|
|
Goodwill
|
|
|
7,645,805
|
|
|
|
|
|
|
|
2,492,165
|
|
Accounts payable
|
|
|
(2,440,437
|
)
|
|
|
|
|
|
|
(345,181
|
)
|
Accrued expenses
|
|
|
(422,839
|
)
|
|
|
|
|
|
|
(1,222,340
|
)
|
Long-term debt, net
|
|
|
|
|
|
|
|
|
|
|
(382,553
|
)
|
Other liabilities
|
|
|
(208,529
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
10,780,467
|
|
|
$
|
|
|
|
$
|
674,110
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Noncash ESPC receivable financing
|
|
$
|
21,957,882
|
|
|
$
|
11,925,101
|
|
|
$
|
27,088,849
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-7
AMERESCO,
INC.
|
|
1.
|
DESCRIPTION
OF BUSINESS
|
Ameresco, Inc. and subsidiaries (the, Company) was
organized as a Delaware corporation on April 25, 2000. The
Company is a provider of energy efficiency solutions for
facilities throughout North America. The Company operates in one
business segment providing solutions, both products
and services, that enable customers to reduce their energy
consumption, lower their operating and maintenance costs and
realize environmental benefits. The Companys comprehensive
set of services includes upgrades to a facilitys energy
infrastructure and the construction and operation of small-scale
renewable energy plants. It also sells certain photovoltaic
equipment worldwide. The Company operates in the United States,
Canada, and Europe.
The Company is compensated through a variety of methods,
including: 1) direct payments based on
fee-for-services
contracts (utilizing lump-sum or cost-plus pricing
methodologies); 2) the sale of energy from the
Companys generating assets; and 3) direct payment for
photovoltaic equipment and systems.
|
|
2.
|
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
|
Codification
The accompanying consolidated financial statements have been
prepared in accordance with accounting standards set by the
Financial Accounting Standards Board (FASB). The
FASB sets generally accepted accounting principles
(GAAP) that the Company follows to ensure its
financial condition, results of operations, and cash flows are
consistently reported. References to GAAP issued by the FASB in
these notes to the consolidated financial statements are to the
FASB Accounting Standards Codification (ASC), which
was effective for the Company in 2009.
A summary of the significant accounting policies consistently
applied in the preparation of the accompanying consolidated
financial statements follows.
Principles
of Consolidation
The accompanying consolidated financial statements include the
accounts of Ameresco, Inc. and its wholly owned subsidiaries.
All significant intercompany accounts and transactions have been
eliminated. Gains and losses from the translation of all foreign
currency financial statements are recorded in the accumulated
other comprehensive income (loss) account within
stockholders equity.
Use
of Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the
reported amounts of revenue and expenses during the reporting
period. The most significant estimates with regard to these
consolidated financial statements relate to the estimation of
final construction contract profit in accordance with accounting
for long-term contracts, allowance for doubtful accounts,
inventory reserves, project development costs, fair value of
derivative financial instruments, impairment of long lived
assets, income taxes and estimating potential liability in
conjunction with certain commitments and contingencies. Actual
results could differ from those estimates.
Cash
and Cash Equivalents
Cash includes cash on deposit, overnight repurchase agreements,
and amounts invested in highly liquid money market funds. Cash
equivalents consist of short term investments with original
maturities of three months or less. The Company maintains
accounts with financial institutions and the balances in such
accounts, at times, exceed federally insured limits. This credit
risk is divided among a number of financial
F-8
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
institutions that management believes to be of high quality. The
carrying amount of cash and cash equivalents approximates their
fair value.
Restricted
Cash
Restricted cash consists of cash held in an escrow account in
association with construction draws for energy savings
performance contracts (ESPCs), as well as cash
required under term loans to be maintained in debt service
reserve accounts until all obligations have been indefeasibly
paid in full.
Accounts
Receivable
Accounts receivable are stated at the amount management expects
to collect from outstanding balances. An allowance for doubtful
accounts is provided for those accounts receivable considered to
be uncollectible based upon historical experience and
managements evaluation of outstanding accounts receivable
at the end of the year. Bad debts are written off against the
allowance when identified. Changes in the allowance for doubtful
accounts for the years ended December 31, 2007, 2008 and
2009 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Balance at beginning of period
|
|
$
|
1,331,280
|
|
|
$
|
1,539,439
|
|
|
$
|
1,049,711
|
|
Charges to costs and expenses
|
|
|
249,631
|
|
|
|
385,418
|
|
|
|
1,670,589
|
|
Account write-offs and other deductions
|
|
|
(41,472
|
)
|
|
|
(875,146
|
)
|
|
|
(1,118,221
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at end of period
|
|
$
|
1,539,439
|
|
|
$
|
1,049,711
|
|
|
$
|
1,602,079
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At each of December 31, 2008 and 2009, the Company had one
customer that accounted for approximately 12% and 14%,
respectively, of the Companys total accounts receivable.
Accounts
Receivable Retainage
Accounts receivable retainage represents amounts due from
customers, but where payments are withheld contractually until
certain construction milestones are met. Amounts retained
typically range from five percent to ten percent of the total
invoice.
Inventory
Inventories, which consist of photovoltaic solar panels,
batteries and related accessories, are stated at the lower of
cost
(first-in,
first-out method) or market (determined on the basis of
estimated realizable values). Provisions have been made to
reduce the carrying value to the realizable value.
Prepaid
Expenses
Prepaid expenses consist primarily of short-term prepaid
expenditures that will amortize within one year.
Federal
ESPC Receivable Financing
Federal ESPC receivable financing represents the amount to be
paid by various federal government agencies for work performed
and earned by the Company under specific ESPCs. Ameresco assigns
certain of its right to receive those payments to third-party
lenders that provide construction and permanent financing for
such contracts. The receivable is recognized as revenue as each
project is constructed. Upon completion and acceptance of the
project by the government, the assigned ESPC receivable and
corresponding related project debt are eliminated from the
Companys financial statements.
F-9
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Project
Development Costs
The Company capitalizes as project development costs only those
costs incurred in connection with the development of energy
projects, primarily direct labor, interest costs, outside
contractor services, consulting fees, legal fees and travel, if
incurred after a point in time where the realization of related
revenue becomes probable. Project development costs incurred
prior to the probable realization of revenue are expensed as
incurred. The Company classifies project development costs as a
current asset as the development efforts are expected to proceed
to construction activity in the twelve months that follow.
Property
and Equipment
Property and equipment consists primarily of office and computer
equipment. These assets are recorded at cost. Major additions
and improvements are capitalized as additions to the property
and equipment accounts, while replacements, maintenance and
repairs that do not improve or extend the life of the respective
assets, are expensed as incurred. Depreciation and amortization
of property and equipment are computed on a straight-line basis
over the following estimated useful lives:
|
|
|
Asset Classification
|
|
Estimated Useful Life
|
|
Furniture and office equipment
|
|
Five years
|
Computer equipment and software costs
|
|
Five years
|
Leasehold improvements
|
|
Lesser of term of lease or five years
|
Automobiles
|
|
Five years
|
Project
Assets
Project assets consist of costs of materials, direct labor,
interest costs, outside contract services and project
development costs incurred in connection with the construction
of small-scale renewable energy plants that we own and the
implementation of energy savings contracts. These amounts are
capitalized and amortized over the lives of the related assets
or the terms of the related contracts.
The Company capitalizes interest costs relating to construction
financing during the period of construction. The interest
capitalized is included in the total cost of the project at
completion. The amount of interest capitalized for the years
ended December 31, 2007, 2008 and 2009 was $0, $233,767 and
$1,395,483, respectively.
Routine maintenance costs are expensed in the current
years consolidated statements of income and comprehensive
income to the extent that they do not extend the life of the
asset. Major maintenance, upgrades and overhauls are required
for certain components of the Companys assets. In these
instances, the costs associated with these upgrades are
capitalized and are depreciated over the shorter of the life of
the asset or until the next required major maintenance or
overhaul period. Gains or losses on disposal of property and
equipment are reflected in general, administrative and other
expenses in the consolidated statements of income and
comprehensive income.
The Company evaluates its long-lived assets for impairment as
events or changes in circumstances indicate the carrying value
of these assets may not be fully recoverable. The Company
evaluates recoverability of long-lived assets to be held and
used by estimating the undiscounted future cash flows before
interest associated with the expected uses and eventual
disposition of those assets. When these comparisons indicate
that the carrying value of those assets is greater than the
undiscounted cash flows, the Company recognizes an impairment
loss for the amount that the carrying value exceeds the fair
value.
During 2007, the Company decommissioned one of its landfill gas
(LFG) energy facilities as the power sales agreement
with the local utility company expired in December 2006. During
2007, the plant was temporarily shut down. The plant equipment
had been in service for 20 years and the cost of
maintaining the
F-10
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
aged equipment was economically unfeasible. The remaining book
value of $2.0 million was written off, and is included in
direct expenses in the accompanying consolidated statements of
income and comprehensive income for 2007.
During 2008, the Company determined that impairment had occurred
on two of its LFG facilities. One facilitys landfill owner
was experiencing permanent operational issues with its existing
well field equipment. The volume of LFG supplied to the
Companys facility was impaired by this factor, resulting
in a write-down of the asset value. The second facilitys
industrial customer filed for bankruptcy in 2008. The Company
assessed the likelihood of the industrial customer emerging from
bankruptcy and the resulting impact on future cash flows to the
project in determining the amount of the impairment. A total of
$3,500,000 was written down for these two facilities, and is
included in direct expenses in the accompanying consolidated
statements of income and comprehensive income for 2008.
Deferred
Financing Fees
Deferred finance fees relate to the external costs incurred to
obtain financing for the Company. All deferred financing fees
are amortized over the respective term of the financing.
Goodwill
The Company has classified as goodwill the excess of fair value
of the net assets (including tax attributes) of companies
acquired in purchase transactions. The Company assesses the
impairment of goodwill and intangible assets with indefinite
lives on an annual basis
(December 31
st
)
and whenever events or changes in circumstances indicate that
the carrying value of the asset may not be recoverable. The
Company would record an impairment charge if such an assessment
were to indicate that, more likely than not, the fair value of
such assets was less than their carrying values. Judgment is
required in determining whether an event has occurred that may
impair the value of goodwill or identifiable intangible assets.
Factors that could indicate that an impairment may exist include
significant underperformance relative to plan or long-term
projections, significant changes in business strategy,
significant negative industry or economic trends or a
significant decline in the base stock price of our public
competitors for a sustained period of time.
The first step (defined as Step 1) of the goodwill
impairment test, used to identify potential impairment, compares
the fair value of the equity with its carrying amount, including
goodwill. If the fair value of the equity exceeds its carrying
amount, goodwill of the reporting unit is considered not
impaired, thus the second step of the impairment test is
unnecessary. If the carrying amount of a reporting unit exceeds
its fair value, the second step of the goodwill impairment test
shall be performed to measure the amount of impairment loss, if
any. The Company performed a Step 1 test at its annual testing
dates of December 31, 2007, 2008 and 2009, and determined
that the fair value of equity exceeded the carrying value of
equity, therefore goodwill was not impaired.
The Company completed its Step 1 test utilizing both an income
approach and a market approach. The discounted cash flow method
is used to measure the fair value of equity under the income
approach. A terminal value utilizing a constant growth rate of
cash flows was used to calculate a terminal value after the
explicit projection period. Determining the fair value using a
discounted cash flow method requires the Company to make
significant estimates and assumptions, including long-term
projections of cash flows, market conditions and appropriate
discount rates. The Companys judgments are based upon
historical experience, current market trends, pipeline for
future sales, and other information. While the Company believes
that the estimates and assumptions underlying the valuation
methodology are reasonable, different estimates and assumptions
could result in a different outcome. In estimating future cash
flows, the Company relies on internally generated projections
for a defined time period for sales and operating profits,
including
F-11
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
capital expenditures, changes in net working capital, and
adjustments for non-cash items to arrive at the free cash flow
available to invested capital.
Under the market approach, the Company estimates the fair value
based on market multiples of revenue and earnings of comparable
publicly-traded companies and comparable transactions of similar
companies. The estimates and assumptions used in the
calculations include revenue growth rates, expense growth rates,
expected capital expenditures to determined projected cash
flows, expected tax rates and an estimated discount rate to
determine present value of expected cash flows. These estimates
are based on historical experiences, projections of future
operating activity and weighted average cost of capital.
In addition, the Company periodically reviews the estimated
useful lives of identifiable intangible assets, taking into
consideration any events or circumstances that might result in
either a diminished fair value or revised useful life. If the
Step 1 test concludes an impairment is indicated,
the Company will employ a second step to measure the impairment.
If the Company determines that an impairment has occurred, the
Company will record a write-down of the carrying value and
charge the impairment as an operating expense in the period the
determination is made. Although the Company believes goodwill
and intangible assets are appropriately stated in the
accompanying consolidated financial statements, changes in
strategy or market conditions could significantly impact these
judgments and require an adjustment to the recorded balance.
Other
Assets
Other assets consist primarily of notes and contracts receivable
due to the Company.
Asset
Retirement Obligations
The Company recognizes a liability for the fair value of
required asset retirement obligations (ARO) when such
obligations are incurred. The liability is estimated on a number
of assumptions requiring managements judgment, including
equipment removal costs, site restoration costs, salvage costs,
cost inflation rates and discount rates and is accredited to its
projected future value over time. The capitalized asset is
depreciated using the convention of depreciation of plant
assets. Upon satisfaction of the ARO conditions, any difference
between the recorded ARO liability and the actual retirement
cost incurred is recognized as an operating gain or lose in the
consolidated statements of income and comprehensive income. As
of December 31, 2007, 2008 and 2009, the Company had no
AROs.
Other
Liabilities
Other liabilities consist primarily of deferred revenue related
to multi-year operation and maintenance contracts which expire
as late as 2031. Other liabilities also include the fair value
of derivatives.
Revenue
Recognition
The Company derives revenue from energy efficiency and renewable
energy products and services. Energy efficiency products and
services include the design, engineering, and installation of
equipment and other measures to improve the efficiency, and
control the operation, of a facilitys energy
infrastructure. Renewable energy products and services include
the construction of small-scale plants that produce electricity,
gas, heat or cooling from renewable sources of energy, the sale
of such electricity, gas, heat or cooling from plants that the
Company owns, and the sale and installation of solar energy
products and systems.
Revenue from the installation or construction of projects is
recognized on a
percentage-of-completion
basis. The
percentage-of-completion
for each project is determined on an actual
cost-to-estimated
final cost basis. Maintenance revenue is recognized as related
services are performed. In accordance with industry practice,
the Company includes in current assets and liabilities the
amounts of receivables related to construction projects
realizable and payable over a period in excess of one year. The
Company recognizes
F-12
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
revenue associated with contract change orders only when the
authorization for the change order has been properly executed
and the work has been performed and accepted by the customer.
When the estimate on a contract indicates a loss, or claims
against costs incurred reduce the likelihood of recoverability
of such costs, the Company records the entire expected loss
immediately, regardless of the percentage of completion.
Billings in excess of costs and estimated earnings represents
advanced billings on certain construction contracts. Costs and
estimated earnings in excess of billings under customer
contracts represent certain amounts that were earned and
billable but not invoiced at December 31, 2008 and 2009.
The Company sells certain products and services in bundled
arrangements, where multiple products
and/or
services are involved. The Company divides bundled arrangements
into separate deliverables and revenue is allocated to each
deliverable based on the relative fair value of all elements.
The fair value is determined based on the price of the
deliverable sold on a stand-alone basis.
The Company recognizes revenue from the sale and delivery of
products, including the output from renewable energy plants,
when produced and delivered to the customer, in accordance with
specific contract terms, provided that persuasive evidence of an
arrangement exists, the Companys price to the customer is
fixed or determinable and collectibility is reasonably assured.
The Company recognizes revenue from O&M contracts and
consulting services as the related services are performed.
For a limited number of contracts under which the Company
receives additional revenue based on a share of energy savings,
such additional revenue is recognized as energy savings are
generated.
Direct
Expenses
Direct expenses include the cost of labor, materials, equipment,
subcontracting and outside engineering that are required for the
development and installation of our projects, as well as
preconstruction costs, sales incentives, associated travel,
inventory obsolescence charges, and, if applicable, costs of
procuring financing. A majority of our contracts have fixed
price terms; however, in some cases the Company negotiates
protections, such as a cost-plus structure, to mitigate the risk
of rising prices for materials, services and equipment.
Direct expenses also include the costs of maintaining and
operating the small-scale renewable energy plants that the
Company owns, including the cost of fuel (if any) and
depreciation charges.
Income
Taxes
The Company provides for income taxes based in the liability
method. The Company provides for deferred income taxes based on
the expected future tax consequences of differences between the
financial statement basis and the tax basis of assets and
liabilities calculated using the enacted tax rates in effect for
the year in which the differences are expected to be reflected
in the tax return.
The Company accounts for uncertain tax positions using a
more-likely-than-not threshold for recognizing and
resolving uncertain tax positions. The evaluation of uncertain
tax positions is based on factors that include, but are not
limited to, changes in tax law, the measurement of tax positions
taken or expected to be taken in tax returns, the effective
settlement of matters subject to audit, new audit activity and
changes in facts or circumstances related to a tax position. The
Company evaluates uncertain tax positions on a quarterly basis
and adjusts the level of the liability to reflect any subsequent
changes in the relevant facts surrounding the uncertain
positions. The Companys liabilities for uncertain tax
positions can be relieved only if the contingency becomes
legally extinguished through either payment to the taxing
authority or the expiration of
F-13
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
the statute of limitations, the recognition of the benefits
associated with the position meet the
more-likely-than-not threshold or the liability
becomes effectively settled through the examination process. The
Company considers matters to be effectively settled once the
taxing authority has completed all of its required or expected
examination procedures, including all appeals and administrative
reviews; the Company has no plans to appeal or litigate any
aspect of the tax position; and the Company believes that it is
highly unlikely that the taxing authority would examine or
re-examine the related tax position. The Company also accrues
for potential interest and penalties, related to unrecognized
tax benefits in income tax expense.
Foreign
Currency Translation
The local currency of the Companys foreign operations is
considered the functional currency of such operations. All
assets and liabilities of the Companys foreign operations
are translated into U.S. dollars at year-end exchange
rates. Income and expense items are translated at average
exchange rates prevailing during the year. Translation
adjustments are accumulated as a separate component of
stockholders equity. Foreign currency translation gains
and losses are reported on the consolidated statements of income
and comprehensive income.
Financial
Instruments
Financial instruments consist of cash and cash equivalents,
restricted cash, accounts receivable, long-term contract
receivables, accounts payable, long-term debt and interest rate
swaps. The estimated fair value of cash and cash equivalents,
restricted cash, accounts receivable, long-term contract
receivables and accounts payable approximates their carrying
value. See below for fair value measurements of long-term debt.
See Note 17 for fair value of interest rate swaps.
Stock-Based
Compensation Expense
Stock-based compensation expense results from the issuances of
shares of restricted common stock and grants of stock options
and warrants to employees, directors, outside consultants and
others. The Company recognizes the costs associated with
restricted stock, option and warrant grants using the fair value
recognition provisions of ASC 718, Compensation
Stock Compensation (formerly SFAS No. 123(R),
Share-Based Payment) on a straight-line basis over the vesting
period of the awards.
Stock-based compensation expense is recognized based on the
grant-date fair value. The Company estimates the fair value of
the stock-based awards, including stock options, using the
Black-Scholes option-pricing model. Determining the fair value
of stock-based awards requires the use of highly subjective
assumptions, including the fair value of our common stock
underlying the award, the expected term of the award and
expected stock price volatility.
The assumptions used in determining the fair value of
stock-based awards represent managements estimates, which
involve inherent uncertainties and the application of management
judgment. As a result, if factors change, and different
assumptions are employed, the stock-based compensation could be
materially different in the future. The risk-free interest rates
are based on the U.S. Treasury yield curve in effect at the time
of grant, with maturities approximating the expected life of the
stock options. The Company has no history of paying dividends.
Additionally, as of each of the grant dates, there was no
expectation to pay dividends over expected life of the options.
The expected life of the awards is estimated using historical
data and managements expectations. Because there was no
public market for the Companys common stock prior to this
offering, management lacked company-specific historical and
implied volatility information. Therefore, estimates of expected
stock volatility were based on that of publicly-traded peer
companies, and it is expected that the Company will continue to
use this methodology until such time as there is adequate
historical data regarding the volatility of the Companys
publicly-traded stock price.
F-14
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The Company is required to recognize compensation expense for
only the portion of options that are expected to vest. Actual
historical forfeiture rate of options is based on employee
terminations and the number of shares forfeited. These data and
other qualitative factors are considered by the Company in
determining to use a 25% forfeiture rate in recognizing stock
compensation expense. If the actual forfeiture rate varies from
historical rates and estimates, additional adjustments to
compensation expense may be required in future periods. If there
are any modifications or cancellations of the underlying
unvested securities or the terms of the stock option, it may be
necessary to accelerate, increase or cancel any remaining
unamortized stock-based compensation expense.
The Company also accounts for equity instruments issued to
non-employee directors and consultants at fair value. All
transactions in which goods or services are the consideration
received for the issuance of equity instruments are accounted
for based on the fair value of the consideration received or the
fair value of the equity instrument issued, whichever is more
reliably measurable. The measurement date of the fair value of
the equity instrument issued is the date on which the
counterpartys performance is complete. No awards to
individuals who were not either an employee or director of the
Company occurred during the years ended December 31, 2007,
2008 and 2009.
Fair
Value Measurements
On January 1, 2007, the Company adopted the guidance for
fair value measurements. The guidance defines fair value,
establishes a framework for measuring fair value in accordance
with generally accepted accounting principles and expands
disclosures about fair value measurements. In addition, in 2009,
the Company adopted fair value measurements for all of its
non-financial assets and non-financial liabilities, except for
those recognized at fair value in the financial statements at
least annually. These assets include goodwill and long-lived
assets measured at fair value for impairment assessments, and
non-financial assets and liabilities initially measured at fair
value in a business combination. The Companys adoption of
this guidance did not have a material impact on its consolidated
financial statements.
The Companys financial instruments include cash and cash
equivalents, accounts and notes receivable, interest rate swaps,
accounts payable, accrued expenses, equity-based liabilities and
short-and long-term borrowings. Because of their short maturity,
the carrying amounts of cash and cash equivalents, accounts and
notes receivable, accounts payable, accrued expenses and
short-term borrowings approximate fair value. The carrying value
of long-term variable-rate debt approximates fair value. The
carrying value of the Companys fixed-rate long-term debt
exceeds its fair value by approximately $741,000. This is based
on quoted market prices or on rates available to the Company for
debt with similar terms and maturities.
The Company accounts for its interest rate swaps as derivative
financial instruments in accordance with the related guidance.
Under this guidance, derivatives are carried on the consolidated
balance sheets at fair value. The fair value of the
Companys interest rate swaps are determined based on
observable market data in combination with expected cash flows
for each instrument.
Derivative
Financial Instruments
Effective January 1, 2009, the Company adopted new guidance
which expands the disclosure requirements for derivative
instruments and hedging activities.
In the normal course of business, the Company utilizes
derivatives contracts as part of its risk management strategy to
manage exposure to market fluctuations in interest rates. These
instruments are subject to various credit and market risks.
Controls and monitoring procedures for these instruments have
been established and are routinely reevaluated. Credit risk
represents the potential loss that may occur because a party to
a transaction fails to perform according to the terms of the
contract. The measure of credit exposure is the replacement cost
of contracts with a positive fair value. The Company seeks to
manage credit risk by
F-15
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
entering into financial instrument transactions only through
counterparties that the Company believes to be creditworthy.
Market risk represents the potential loss due to the decrease in
the value of a financial instrument caused primarily by changes
in interest rates. The Company seeks to manage market risk by
establishing and monitoring limits on the types and degree of
risk that may be undertaken. As a matter of policy, the Company
does not use derivatives for speculative purposes. The Company
considers the use of derivatives with all financing transactions
to mitigate risk.
During 2009, the Company purchased an interest rate cap from a
major bank to mitigate effects of rising interest rates on a
fixed rate customer contract for $2.2 million. The Company
terminated the agreement in 2009 and realized a gain of
$2.5 million. The Company did not designate this derivative
as a cash flow hedge; therefore hedge accounting was not applied.
A portion of the Companys project financing includes two
projects that utilize an interest rate swap instrument. During
2007, the Company entered into two fifteen-year interest rate
swap contracts under which the Company agreed to pay an amount
equal to a specified fixed rate of interest times a notional
principal amount, and to in turn receive an amount equal to a
specified variable rate of interest times the same notional
principal amount.
The Company did not apply hedge accounting based upon the
criteria established by the related guidance as the Company did
not designate its derivatives as cash flow hedges. The Company
recognizes all derivatives in the consolidated balance sheets
and statements of income and comprehensive income at fair value.
Cash flows from derivative instruments are reported as operating
activities on the consolidated statements of cash flows.
With respect to the Companys interest rate swaps, the
Company recorded the unrealized gain (loss) in earnings in 2007,
2008 and 2009, of approximately $(1,365,813), $(2,831,524) and
$2,263,802, respectively, as other (expense) income in the
consolidated statements of income and comprehensive income.
See Notes 16, 17 and 18 for additional information on the
Companys derivative instruments.
Earnings
Per Share
Basic earnings per share is calculated using the Companys
weighted-average outstanding common shares, including vested
restricted shares. When the effects are not anti-dilutive,
diluted earnings per share is calculated using the
weighted-average outstanding common shares and the dilutive
effect of preferred stock, warrants and stock options as
determined under the treasury stock method.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Basic and diluted net income
|
|
$
|
10,545,415
|
|
|
$
|
18,273,100
|
|
|
$
|
19,907,148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic weighted-average shares outstanding
|
|
|
5,560,511
|
|
|
|
5,339,055
|
|
|
|
4,995,956
|
|
Effect of dilutive securities
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock
|
|
|
9,630,000
|
|
|
|
9,630,000
|
|
|
|
9,630,000
|
|
Stock options
|
|
|
2,505,668
|
|
|
|
1,820,226
|
|
|
|
1,338,233
|
|
Warrants
|
|
|
2,390
|
|
|
|
673
|
|
|
|
128
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted weighted-average shares outstanding
|
|
|
17,698,569
|
|
|
|
16,789,954
|
|
|
|
15,964,317
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recent
Accounting Pronouncements
In 2009, the FASB issued an accounting pronouncement
establishing the ASC as the source of authoritative accounting
principles recognized by the FASB to be applied by
nongovernmental entities. This
F-16
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
pronouncement was effective for financial statements issued for
interim and annual periods ending after September 15, 2009,
for most entities. On the effective date, all non-SEC accounting
and reporting standards were superseded. The Company adopted
this new accounting pronouncement during 2009, and it did not
have a material impact on the Companys consolidated
financial statements.
In May 2009, the FASB issued guidance on subsequent events,
which sets forth general standards of accounting for and
disclosure of events that occur after the balance sheet date but
before financial statements are issued or are available to be
issued. The Company adopted the guidance during 2009, and it did
not have a material impact on the Companys consolidated
financial statements.
In January 2010, the FASB issued guidance on improving
disclosures about fair value measurements. This guidance has new
requirements for disclosures related to recurring or
nonrecurring fair-value measurements including significant
transfers into and out of Level 1 and Level 2
fair-value measurements and information on purchases, sales,
issuances and settlements in a rollforward reconciliation of
Level 3 fair-value measurements. This guidance is effective
for the first reporting period beginning after December 15,
2009, and, as a result, it was effective for the Company
beginning January 1, 2010. The Level 3 reconciliation
disclosures are effective for fiscal years beginning after
December 15, 2010, which will be effective for the Company
for the year ending December 31, 2011. The Company does not
expect its adoption of the guidance to have a material impact on
its consolidated financial statements.
In September 2009, the FASB issued guidance related to revenue
arrangements with multiple deliverables as codified in
ASC 605, Revenue Recognition (ASC 605).
ASC 605 provides greater ability to separate and allocate
arrangement consideration in a multiple element revenue
arrangement. In addition, ASC 605 requires the use of
estimated selling price to allocate arrangement considerations,
therefore eliminating the use of the residual method of
accounting. ASC 605 will be effective for fiscal years
beginning after June 15, 2010 and may be applied
retrospectively or prospectively for new or materially modified
arrangements. Earlier application is permitted. The Company does
not expect its adoption of this guidance will have a material
effect on its consolidated financial statements.
|
|
3.
|
BUSINESS
ACQUISITIONS AND RELATED TRANSACTIONS
|
On May 2, 2007, the Company entered into a stock purchase
agreement to expand its product lines and operations. The
Company paid $11.5 million in cash to acquire the stock of
Southwestern Photovoltaic, Inc., $10.8 million, net of cash
received.
On September 18, 2009, the Company entered into a share purchase
agreement with Byrne Engineering, Inc (Byrne). The
Company made an initial cash payment of $674,110 to acquire the
stock of Byrne. The agreement also provides for an earn out
which is estimated to be $1,222,340. The total fair value of the
consideration is $1,896,450.
The 2007 acquisition was accounted for using the purchase method
of accounting. The 2009 acquisition was accounted for using the
acquisition method in accordance with ASC-805
Business Combinations. The purchase price has been allocated to
the assets based on their estimated fair values at the date of
acquisition. The excess purchase price over the estimated fair
value of the net assets acquired has been recorded as goodwill.
In each acquisition, identified intangible assets had de minimis
value as the Company was primarily acquiring an assembled
workforce in addition to the tangible net assets identified
below.
F-17
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Cash
|
|
$
|
692,007
|
|
|
$
|
|
|
|
$
|
|
|
Accounts receivable
|
|
|
2,419,386
|
|
|
|
|
|
|
|
|
|
Inventory
|
|
|
3,575,968
|
|
|
|
|
|
|
|
|
|
Prepaid expenses and other current assets
|
|
|
132,500
|
|
|
|
|
|
|
|
18,177
|
|
Property and equipment
|
|
|
78,613
|
|
|
|
|
|
|
|
113,842
|
|
Goodwill
|
|
|
7,645,805
|
|
|
|
|
|
|
|
2,492,165
|
|
Accounts payable
|
|
|
(2,440,437
|
)
|
|
|
|
|
|
|
(345,181
|
)
|
Accrued liabilities
|
|
|
(422,839
|
)
|
|
|
|
|
|
|
(1,222,340
|
)
|
Long-term debt, net
|
|
|
|
|
|
|
|
|
|
|
(382,553
|
)
|
Other liabilities
|
|
|
(208,529
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase price
|
|
$
|
11,472,474
|
|
|
$
|
|
|
|
$
|
674,110
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total, net of cash received
|
|
$
|
10,780,467
|
|
|
$
|
|
|
|
$
|
674,110
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fair value of consideration
|
|
$
|
11,472,474
|
|
|
$
|
|
|
|
$
|
1,896,450
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The allocation of the purchase price for the 2007 acquisition is
final and is based on managements best estimates. During
2008, no acquisitions or related transactions occurred. The
settlement of the pre-existing litigation and contractual
disputes that existed at the 2009 acquisition date may vary from
estimates in the purchase price allocation.
The results of the acquired companies since the date of the
acquisitions have been included in the Companys operations
as presented in the accompanying consolidated statements of
income and comprehensive income and consolidated statements of
cash flows. Pro forma financial information has not been
presented as the acquisitions are not material. The revenue and
pre-tax loss of Byrne in 2009 was $1,176,953 and $97,138,
respectively, following the acquisition date.
|
|
4.
|
PROPERTY
AND EQUIPMENT
|
Property and equipment consisted of the following at
December 31, 2008 and 2009:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
|
Furniture and office equipment
|
|
$
|
1,211,596
|
|
|
$
|
1,271,569
|
|
Computer equipment and software costs
|
|
|
6,903,526
|
|
|
|
8,453,230
|
|
Leasehold improvements
|
|
|
823,635
|
|
|
|
1,311,625
|
|
Automobiles
|
|
|
424,088
|
|
|
|
505,029
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,362,845
|
|
|
|
11,541,453
|
|
Less accumulated depreciation
|
|
|
5,649,627
|
|
|
|
7,168,197
|
|
|
|
|
|
|
|
|
|
|
Property and equipment, net
|
|
$
|
3,713,218
|
|
|
$
|
4,373,256
|
|
|
|
|
|
|
|
|
|
|
Depreciation expense on property and equipment for the years
ended December 31, 2007, 2008 and 2009 was approximately
$1,056,197, $1,064,859 and $1,372,885, respectively, and is
included in general, administrative and other expenses in the
accompanying consolidated statements of income and comprehensive
income.
F-18
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Project assets consisted of the following at December 31,
2008 and 2009:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
|
Project assets
|
|
$
|
117,935,266
|
|
|
$
|
137,957,878
|
|
Less accumulated depreciation and amortization
|
|
|
14,881,913
|
|
|
|
20,319,889
|
|
|
|
|
|
|
|
|
|
|
Project assets, net
|
|
$
|
103,053,353
|
|
|
$
|
117,637,990
|
|
|
|
|
|
|
|
|
|
|
In 2009, the Company received $12,864,644 in grant awards from
the U.S. Treasury Department (the Treasury) as part
of the 2009 American Recovery and Reinvestment Act (the Act).
The Act authorizes the Treasury to make payments to eligible
persons who place in service qualifying renewable energy
projects. The grants are paid in lieu of investment tax credits.
All of the proceeds from the grants were used and recorded as a
reduction in the cost basis of the applicable project assets. If
the Company disposes of the property, or the property ceases to
qualify as a specified energy property, within five years from
the date the property is placed in service, then a prorated
portion of the Section 1603 payment must be repaid. For tax
purposes, the Section 1603 payments are not included in
federal and certain state taxable income and the basis of the
property is reduced by 50% of the payment received. Deferred
grant income of $4,158,508 in the accompanying consolidated
balance sheets at December 31, 2009, represents the benefit
of the basis difference to be amortized to income tax expense
over the life of the related property.
Depreciation and amortization expense on the above project
assets for the years ended December 31, 2007, 2008 and 2009
was approximately $2,845,131, $2,713,407 and $5,260,821,
respectively, and is included in direct expenses in the
accompanying consolidated statements of income.
Costs, estimated earnings and related billings on uncompleted
contracts at December 31, 2008 and 2009, respectively, are
as follows:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
|
Cost incurred to date
|
|
$
|
510,818,791
|
|
|
$
|
822,280,622
|
|
Estimated earnings
|
|
|
96,436,131
|
|
|
|
161,849,274
|
|
|
|
|
|
|
|
|
|
|
|
|
|
607,254,922
|
|
|
|
984,129,896
|
|
Less billings to date
|
|
|
(618,359,542
|
)
|
|
|
(998,287,184
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(11,104,620
|
)
|
|
$
|
(14,157,288
|
)
|
|
|
|
|
|
|
|
|
|
Included in the accompanying consolidated balance sheets are the
following at December 31, 2008 and 2009:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
|
Costs and estimated earnings in excess of billings on
uncompleted contracts
|
|
$
|
9,755,691
|
|
|
$
|
14,009,076
|
|
Billings in excess of costs and estimated earnings on
uncompleted contracts
|
|
|
(20,860,311
|
)
|
|
|
(28,166,364
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(11,104,620
|
)
|
|
$
|
(14,157,288
|
)
|
|
|
|
|
|
|
|
|
|
F-19
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Long-term debt at December 31, 2008 and 2009 consisted of
the following:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
|
Federal ESPC receivable financing
|
|
$
|
29,234,584
|
|
|
$
|
33,411,009
|
|
Revolving senior secured credit facility, due June 2011,
interest at varying rates monthly in arrears
|
|
|
34,493,460
|
|
|
|
19,915,218
|
|
7.299% term note payable in quarterly installments through March
2013
|
|
|
5,132,000
|
|
|
|
4,115,000
|
|
6.90% term loan payable in quarterly installments through
September 2014
|
|
|
6,248,569
|
|
|
|
5,415,426
|
|
8.673% term loan payable in quarterly installments through
December 2015
|
|
|
6,035,625
|
|
|
|
5,220,000
|
|
6.345% term loan payable in quarterly installments through
February 2021
|
|
|
3,039,683
|
|
|
|
2,901,845
|
|
6.345% term loan payable in quarterly installments through June
2024
|
|
|
11,939,299
|
|
|
|
12,866,491
|
|
Variable rate construction to term loan due September 2024
|
|
|
|
|
|
|
27,055,230
|
|
|
|
|
|
|
|
|
|
|
|
|
|
96,123,220
|
|
|
|
110,900,219
|
|
Less current maturities
|
|
|
5,142,757
|
|
|
|
8,093,016
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
$
|
90,980,463
|
|
|
$
|
102,807,203
|
|
|
|
|
|
|
|
|
|
|
Aggregate maturities of long-term debt are as follows for the
years ended December 31,:
|
|
|
|
|
2010
|
|
$
|
8,093,016
|
|
2011
|
|
|
22,754,963
|
|
2012
|
|
|
3,023,020
|
|
2013
|
|
|
2,360,278
|
|
2014
|
|
|
1,685,031
|
|
Thereafter
|
|
|
72,983,911
|
|
|
|
|
|
|
|
|
$
|
110,900,219
|
|
|
|
|
|
|
Federal
ESPC Receivable Financing
Represents construction draws received during the construction
or installation of certain energy savings equipment or
facilities in association with agreements to sell long-term
receivables arising from ESPCs related to said equipment and
facilities. These financings are with financial institutions and
carry discount rates that vary by project ranging from 6.5% to
8.9%.
Revolving
Senior Secured Credit Facilities
On June 10, 2008, the Company entered into a credit and
security agreement with a bank, consisting of a $50,000,000
revolving facility. The agreement requires the Company to pay
monthly interest at various rates in arrears, based on the
amount outstanding. At December 31, 2009, the weighted-average
interest rate was 3.34%. This facility has a maturity date of
June 30, 2011. At December 31, 2008 and 2009,
$34,493,460 and $19,915,218, respectively, was outstanding under
the facility. The agreement contains various restrictive
covenants and is secured by a lien on all of the assets of the
Company other than renewable energy projects that the Company
owns and that are financed by others.
F-20
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
On December 29, 2004, the Company entered into a credit and
security agreement with a bank, consisting of a $10,000,000 term
loan and a $15,000,000 revolving facility. The agreement
required the Company to pay interest at various rates in
arrears, based on the amounts outstanding. The term loan was
payable in quarterly principal installments of $625,000,
beginning in March 2005 and continuing through June 10,
2008, the amended maturity date of the term loan. The term loan
and revolving facility matured and was paid in full on
June 10, 2008.
At December 31, 2007, the term loan had a balance of
$2,500,000, and $0 was outstanding under the revolving loan. The
agreement contained various restrictive covenants and was
secured by a lien on all of the assets of the Company other than
renewable energy projects that the Company owns and that are
financed by others.
7.299%
Term Loan
The Company has a term loan with a bank with an original
principal amount of $10,000,000. The notes evidencing the loan
bear interest at a rate of 7.299%. The principal payments are
due in semi-annual installments ranging from $404,000 to
$638,500, plus interest, with remaining principal balances and
unpaid interest due March 31, 2013. In the event a payment
is defaulted on, the payee has the option to accelerate payment
terms and make due the remaining principal and accrued interest
balance. As of December 31, 2008 and 2009, $5,132,000 and
$4,115,000, respectively, was outstanding under the term loan.
6.90%
Term Loan
The Company has a construction and term loan with a bank with an
original principal amount of $9,500,000. The notes evidencing
the loan bear interest at a rate of 6.90%. The principal
payments are due in semi-annual installments ranging from
$306,000 to $698,000, plus interest, with remaining principal
balances and unpaid interest due September 30, 2014. In the
event a payment is defaulted on, the payee has the option to
accelerate payment terms and make due the remaining principal
and accrued interest balance. As of December 31, 2009, the
Company was in default of one of its covenants, as the
offtaker/counterparty of one of the underlying LFG facilities
was working through Chapter 11 bankruptcy. The Company is
currently working with the bank to renegotiate the facility.
Renegotiations are ongoing and expected to be completed during
the second quarter of 2010. The debt is recourse to the
subsidiary only and there are no cross-default provisions. The
Company has classified the entire debt as current on the
accompanying consolidated balance sheets as of December 31,
2009. As of December 31, 2008 and 2009, $6,248,569 and
$5,415,426, respectively, was outstanding under the term loan.
8.673%
Term Loan
The Company has a construction and term loan agreement with a
finance company with a total commitment amount of $7,250,000.
The notes evidencing the construction portion of the loan bear
interest at a variable rate based on LIBOR. In February 2007,
the Company converted the construction loan into a term loan in
accordance with the loan agreement. The original balance of the
term loan was equal to the commitment amount and bears interest
at a fixed rate of 8.673%. The principal payments are due in
quarterly installments ranging from $96,000 to $217,500, plus
interest, with remaining principal balances and unpaid interest
due December 31, 2015.
As of December 31, 2008 and 2009, $6,035,625 and
$5,220,000, respectively, was outstanding under the term loan.
In the event a payment is defaulted on, the payee has the option
to accelerate payment terms and make due the remaining principal
and accrued interest balance.
F-21
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Variable-Rate
Construction and 6.345% Term Loans
On January 30, 2006, the Company entered into a master
construction and term loan facility with a bank for use in
providing limited recourse financing for certain of its LFG to
energy projects. The total loan commitment is $17,156,395, and
is comprised initially of two tranches, but structured for the
addition of subsequent projects that meet lender credit
requirements.
The first loan has an original balance of $3,239,734, and bears
an interest rate of 6.345%. The principal payments are due in
semi-annual installments ranging from $32,000 to $275,000, plus
interest, with the remaining principal and unpaid interest due
February 26, 2021.
The second loan was originated on September 28, 2007.
During 2007 and 2008, the Company made draws as construction
loans under the facility totaling $11,939,299, the amount
outstanding at December 31, 2008. During 2009, the Company
drew additional amounts totaling $1,141,308. The Company
converted the construction loans into term loans in August 2009
for a total term loan balance of $13,080,607. The loan bears
interest at a variable rate and matures on June 30, 2024.
As of December 31, 2008 and 2009, $14,978,982 and
$15,768,336, respectively, was collectively outstanding under
this facility.
In the event a payment is defaulted on, the payee has the option
to accelerate payment terms and make due the remaining principal
and accrued interest balance.
Variable-Rate
Construction and Term Loan
In February 2009, the Company entered into a construction and
term loan financing agreement with a bank for use in providing
limited resource financing for certain of its landfill gas to
energy projects. The total loan commitment under the agreement
is $37,905,983, and bears interest at a variable rate. The rate
at December 31, 2009 was 3.74%. As of December 31,
2009, $27,055,869 in construction loans was outstanding under
the agreement. See Note 19.
Other
On December 31, 2007, in a refinancing and securitization
transaction, the Company sold certain long-term receivables,
contract rights and refinanced certain project finance debt
acquired and assumed during the Companys 2006 acquisition.
The investors and securitization trusts have no recourse to the
Company for failure of the debtors to pay when due. The Company
recognized a gain of approximately $2.3 million on this
transaction, which is included in energy efficiency revenue on
the accompanying consolidated statements of income and
comprehensive income in 2007.
In connection with the organization of the Company, on
May 17, 2000, the Board of Directors authorized the Company
to issue a subordinated note to the Companys principal and
controlling shareholder in the amount of $2,998,750. The
subordinated note bears interest at the rate of 10.00% per
annum, payable monthly in arrears, and is subordinated to the
Companys senior secured credit facility. The subordinated
note is payable upon demand, subject to the subordination
agreement described below. The Company incurred interest related
to the subordinated note during the years ended
December 31, 2007, 2008 and 2009, of $300,000, $300,000 and
$300,000, respectively.
In conjunction with the Company entering into the senior secured
credit facility (see Note 7), the holder of the
subordinated note entered into an Intercreditor Subordination
Agreement. Under the agreement, the subordinated lender agreed
that the payment of principal, interest and all other charges
with respect to the subordinated note is expressly subordinated
in right of payment to the prior payment and satisfaction in
full of
F-22
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
the revolving senior secured credit facility. The intercreditor
subordination agreement allows for the payment of interest on
the subordinated note provided the Company is in compliance with
all other covenants.
At December 31, 2009, the Company did not have any
intention to make principal payments on the subordinated note
and thus the subordinated note has been classified as long-term
in the accompanying consolidated balance sheets.
The components of domestic and foreign income before income
taxes as of December 31, 2007, 2008 and 2009 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Domestic
|
|
$
|
10,194,751
|
|
|
$
|
15,333,845
|
|
|
$
|
22,702,229
|
|
Foreign
|
|
|
6,064,254
|
|
|
|
4,154,382
|
|
|
|
4,154,533
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
16,259,005
|
|
|
$
|
19,488,227
|
|
|
$
|
26,856,762
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The income tax provision for the years ended December 31,
2007, 2008 and 2009 is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Current:
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
5,214,147
|
|
|
$
|
(565,975
|
)
|
|
$
|
(1,415,107
|
)
|
State
|
|
|
1,522,594
|
|
|
|
1,862,654
|
|
|
|
548,246
|
|
Foreign
|
|
|
2,607,629
|
|
|
|
1,990,048
|
|
|
|
4,146,311
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,344,370
|
|
|
|
3,286,727
|
|
|
|
3,279,450
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred:
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
(2,483,856
|
)
|
|
|
(3,517,257
|
)
|
|
|
7,095,001
|
|
State
|
|
|
(1,146,924
|
)
|
|
|
(1,029,898
|
)
|
|
|
587,252
|
|
Foreign
|
|
|
|
|
|
|
2,475,555
|
|
|
|
(4,012,089
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,630,780
|
)
|
|
|
(2,071,600
|
)
|
|
|
3,670,164
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
5,713,590
|
|
|
$
|
1,215,127
|
|
|
$
|
6,949,614
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-23
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The Companys deferred income tax assets and liabilities
result primarily from temporary differences between financial
reporting and tax recognition of depreciation, reserves, and
certain accrued liabilities. Deferred income tax assets and
liabilities at December 31, 2008 and 2009 consist of the
following:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
|
Deferred income tax assets:
|
|
|
|
|
|
|
|
|
Compensation accruals
|
|
$
|
3,745,551
|
|
|
$
|
1,852,578
|
|
Reserves
|
|
|
431,672
|
|
|
|
1,940,919
|
|
Other accruals
|
|
|
3,058,596
|
|
|
|
2,500,316
|
|
Net operating losses
|
|
|
|
|
|
|
877,518
|
|
Goodwill
|
|
|
349,654
|
|
|
|
76,270
|
|
State items
|
|
|
264,467
|
|
|
|
444,523
|
|
Interest rate swaps
|
|
|
1,690,268
|
|
|
|
801,180
|
|
Credits
|
|
|
|
|
|
|
786,169
|
|
|
|
|
|
|
|
|
|
|
Gross deferred income tax assets
|
|
|
9,540,208
|
|
|
|
9,279,473
|
|
|
|
|
|
|
|
|
|
|
Deferred income tax liabilities:
|
|
|
|
|
|
|
|
|
Depreciation
|
|
|
(4,430,097
|
)
|
|
|
(7,645,315
|
)
|
Contract refinancing
|
|
|
(3,749,313
|
)
|
|
|
(3,147,505
|
)
|
Canada
|
|
|
(3,981,314
|
)
|
|
|
(338,435
|
)
|
Acquisition accounting
|
|
|
|
|
|
|
(770,390
|
)
|
|
|
|
|
|
|
|
|
|
Gross deferred income tax liabilities
|
|
|
(12,160,724
|
)
|
|
|
(11,901,645
|
)
|
|
|
|
|
|
|
|
|
|
Deferred income tax assets and liabilities, net
|
|
$
|
(2,620,516
|
)
|
|
$
|
(2,622,172
|
)
|
|
|
|
|
|
|
|
|
|
The provision for income taxes is based on the various rates set
by federal and local authorities and are affected by permanent
and temporary differences between financial accounting and tax
reporting requirements. The following is a reconciliation of the
effective tax rates for 2007, 2008 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Income before income tax
|
|
$
|
16,259,005
|
|
|
$
|
19,488,227
|
|
|
$
|
26,856,762
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal statutory tax expense
|
|
$
|
5,690,652
|
|
|
$
|
6,820,879
|
|
|
$
|
9,399,917
|
|
State income taxes, net of federal benefit
|
|
|
748,190
|
|
|
|
595,632
|
|
|
|
1,259,719
|
|
Net state impact of deferred rate change
|
|
|
|
|
|
|
(141,358
|
)
|
|
|
(997,011
|
)
|
Meals and entertainment
|
|
|
66,986
|
|
|
|
87,068
|
|
|
|
88,798
|
|
Stock compensation expense
|
|
|
131,621
|
|
|
|
177,972
|
|
|
|
459,439
|
|
Energy efficiency preferences
|
|
|
(1,212,142
|
)
|
|
|
(7,965,383
|
)
|
|
|
(2,973,669
|
)
|
Foreign items and rate differential
|
|
|
210,140
|
|
|
|
1,359,105
|
|
|
|
(413,467
|
)
|
Other state benefits
|
|
|
|
|
|
|
|
|
|
|
(309,752
|
)
|
Miscellaneous
|
|
|
78,143
|
|
|
|
281,212
|
|
|
|
435,640
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
5,713,590
|
|
|
$
|
1,215,127
|
|
|
$
|
6,949,614
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-24
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Effective tax rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal statutory rate expense
|
|
|
35.0
|
%
|
|
|
35.0
|
%
|
|
|
35.0
|
%
|
State income taxes, net of federal benefit
|
|
|
4.6
|
%
|
|
|
3.1
|
%
|
|
|
4.7
|
%
|
Net state impact of deferred rate change
|
|
|
|
%
|
|
|
(.7
|
)%
|
|
|
(3.7
|
)%
|
Meals and entertainment
|
|
|
.4
|
%
|
|
|
.4
|
%
|
|
|
.3
|
%
|
Stock compensation expense
|
|
|
.8
|
%
|
|
|
.9
|
%
|
|
|
1.7
|
%
|
Energy efficiency preferences
|
|
|
(7.5
|
)%
|
|
|
(40.9
|
)%
|
|
|
(11.1
|
)%
|
Foreign rate differential
|
|
|
1.3
|
%
|
|
|
7.0
|
%
|
|
|
(1.5
|
)%
|
Other state benefits
|
|
|
|
%
|
|
|
|
%
|
|
|
(1.2
|
)%
|
Miscellaneous
|
|
|
.5
|
%
|
|
|
1.4
|
%
|
|
|
1.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
35.1
|
%
|
|
|
6.2
|
%
|
|
|
25.8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company adopted ASC
740-10
Uncertain Tax Positions as of January 1, 2007, as required.
As a result, the Company recorded a cumulative effect related to
adopting ASC
740-10
through retained earnings of approximately $270,000.
The Company had a gross unrecognized tax benefit of $4,500,000
and $4,400,000 at December 31, 2008 and 2009, respectively.
The Company also had accrued interest and penalties of
approximately $800,000 and $1,100,000 for years ended
December 31, 2008 and 2009, respectively.
A reconciliation of the beginning and ending balances of the
total amounts of gross unrecognized tax benefits for the years
ended December 31, 2008 and 2009 is as follows:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
|
Balance, beginning of year
|
|
$
|
3,500,000
|
|
|
$
|
4,500,000
|
|
Additions for prior year tax positions
|
|
|
1,300,000
|
|
|
|
100,000
|
|
Settlements paid to tax authorities
|
|
|
|
|
|
|
|
|
Reductions of prior year tax positions
|
|
|
(300,000
|
)
|
|
|
(200,000
|
)
|
|
|
|
|
|
|
|
|
|
Balance, end of year
|
|
$
|
4,500,000
|
|
|
$
|
4,400,000
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2009, the Company had net operating loss
carryforwards of $2.1 million, which will expire from 2011
through 2029.
The tax years 2006 through 2009 remain open to examination by
major taxing jurisdictions. The Company accounts for interest
and penalties related to uncertain tax positions as part of its
provision for federal and state income taxes.
Common
Stock
The Company has authorized 30,000,000 shares of common
stock, par value $0.0001 per share (Common Stock),
as of December 31, 2009. Each share of Common Stock
entitles the holder to one vote on all matters submitted to a
vote of the Companys stockholders. Holders of Common Stock
are entitled to receive dividends, if any, as declared by the
Companys board of directors, subject to any preferential
dividend rights of the Preferred Stock (Preferred
Stock).
F-25
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Preferred
Stock
The Company issued 3,220,000 shares of Series A
Preferred Stock (the Series A Preferred Stock)
during the period from inception (April 25, 2000) to
December 31, 2000. The Series A Preferred Stock was
issued to several officers of the Company as well as a related
party at a price of $1.00 per share. Each share of Series A
Preferred Stock is convertible, at the option of the holder, at
any time and from time to time and without the payment of
additional consideration by the holder, into three fully paid
and nonassessable shares of Common Stock. On any matter
presented to the stockholders of the Company, each holder of
outstanding shares of Series A Preferred Stock is entitled
to the number of votes equal to the number of whole shares of
Common Stock into which the Series A Preferred Stock are
convertible. The Company had authorized 3,500,000 shares of
Series A Preferred Stock, par value $0.0001 per share, as
of December 31, 2009.
The Company is not permitted to declare or pay any cash
dividends on shares of Common Stock until the holders of shares
of Series A Preferred Stock have first received a cash
dividend on each outstanding share of Preferred Stock in an
amount at least equal to the product of the per share amount and
the whole number of common shares into which such shares of
Series A Preferred Stock are then convertible.
Additionally, all Series A Preferred Stock holders receive
preferential treatment in the event of the liquidation or
dissolution of the Company. During the year ended
December 31, 2002, 10,000 shares of Series A
Preferred Stock were converted into 30,000 shares of Common
Stock and repurchased by the Company. These shares have been
recorded, at cost, as treasury stock in the accompanying
consolidated statements of stockholders equity. Dividends
were not declared in 2007, 2008 or 2009.
Warrants
As part of a previous debt agreement, the Company issued fully
vested warrants to acquire 1,000,000 and 800,000 shares of
common stock in 2001 and 2002, respectively. The warrants have
an exercise price of $0.01 and $0.60, respectively. The warrants
may be exercised upon cash payment determined by multiplying the
number of shares exercised by the warrant price. The warrants
are entitled to receive a proportionate share of any
distributions made to holders of the Common Stock. The warrants
will expire on June 29, 2011.
During 2008, the Company repurchased a selected number of
warrants at an estimated average market value of $5.01 per
share. There were a total of 1,597,357 warrants repurchased at a
total net price of $7,998,001. This transaction is recorded in
additional paid-in capital in the accompanying consolidated
balance sheets for 2008.
Share
Repurchases
On April 27, 2007, the Company repurchased a selected
number of shares of Common Stock from certain employees at $6.82
per share. There were 367,025 shares repurchased at a total
net price of $2,521,245.
During 2008, through three separate transactions, the Company
repurchased 666,667 shares of Common Stock from certain
employees and stockholders at $6.63 per share, or a total net
price of $4,914,169. The repurchased shares are recorded as
treasury stock in the accompanying consolidated balance sheets
for 2008.
During 2009, the Company repurchased 72,250 shares of Common
Stock from an employee at $12.11 per share, or a total net price
of $874,948. The repurchased shares are recorded as treasury
stock in the accompanying consolidated balance sheets for 2009.
F-26
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
On October 27, 2000, the Companys Board of Directors
approved the Companys 2000 Stock Incentive Plan (the
Plan) and authorized the Company to reserve
6,000,000 shares of common stock for issuance under the
Plan. On August 7, 2001 and April 25, 2002, the
Companys Board of Directors authorized the Company to
reserve an additional 2,000,000 shares of common stock for
issuance under the Plan, bringing the total number of shares of
common stock reserved under the Plan to 8,000,000. On
June 1, 2003 and October 25, 2006, the Companys
Board of Directors authorized the Company to reserve an
additional 2,250,000 shares of common stock for issuance
under the Plan, bringing the total number of shares of common
stock reserved under the Plan to 10,250,000. The Plan provides
for the issuance of restricted stock grants, incentive stock
options and nonqualified stock options. On July 22, 2009,
the Companys Board of Directors authorized the Company to
reserve an additional 4,000,000 shares of common stock for
issuance under the Plan, bringing the total number of shares of
common stock reserved under the Plan to 14,250,000.
Grants
of Restricted Shares
On October 25, 2006, the Company issued
1,000,000 shares of restricted stock to the Companys
principal and controlling shareholder under the 2000 Stock
Incentive Plan as consideration for providing an indemnification
to the Companys surety provider (see Note 15). The shares
vested entirely upon the date three years from the date of
grant. The stock was issued when the fair value was estimated to
be $6.82 per share. The Company recorded an expense of
$2,273,333, $2,273,333 and $1,856,036 in 2007, 2008 and 2009,
respectively, related to this award. On October 25, 2009,
these shares vested. The Company recorded excess tax benefits of
$2,077,128 related to the vesting of these shares in the
accompanying consolidated statements of changes in
stockholders equity in 2009.
F-27
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Stock
Option Grants
The Company has also granted stock options to certain employees
and directors under the Plan. At December 31, 2009,
4,222,800 shares were available for grant under the Plan.
The following table summarizes the activity under the Plan:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
Average
|
|
|
|
Number of
|
|
|
Exercise
|
|
|
|
Options
|
|
|
Price
|
|
|
Outstanding at December 31, 2006
|
|
|
5,006,650
|
|
|
$
|
3.41
|
|
Granted
|
|
|
703,500
|
|
|
|
7.86
|
|
Exercised
|
|
|
(76,000
|
)
|
|
|
(0.97
|
)
|
Forfeited
|
|
|
(112,900
|
)
|
|
|
(5.88
|
)
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2007
|
|
|
5,521,250
|
|
|
|
3.96
|
|
Granted
|
|
|
151,500
|
|
|
|
11.20
|
|
Exercised
|
|
|
(14,000
|
)
|
|
|
(4.80
|
)
|
Forfeited
|
|
|
(291,000
|
)
|
|
|
(5.89
|
)
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2008
|
|
|
5,367,750
|
|
|
|
4.06
|
|
Granted
|
|
|
431,000
|
|
|
|
12.11
|
|
Exercised
|
|
|
(869,000
|
)
|
|
|
(1.01
|
)
|
Forfeited
|
|
|
(204,650
|
)
|
|
|
(4.04
|
)
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2009
|
|
|
4,725,100
|
|
|
$
|
5.36
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at December 31, 2009
|
|
|
3,516,775
|
|
|
$
|
4.29
|
|
|
|
|
|
|
|
|
|
|
Expected to vest at December 31, 2009
|
|
|
940,082
|
|
|
$
|
9.38
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at December 31, 2008
|
|
|
4,214,153
|
|
|
$
|
3.07
|
|
|
|
|
|
|
|
|
|
|
The weighted-average remaining contractual life of options
expected to vest at December 31, 2009 was 5.01 years. The
total intrinsic value of options exercised during the years
ended December 31, 2008 and 2009 was $500,390 and
$18,213,570, respectively.
F-28
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following table summarizes information about stock options
outstanding at December 31, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding Options
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
Exercisable Options
|
|
|
|
|
|
|
Average
|
|
|
Weighted-
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
Remaining
|
|
|
Average
|
|
|
|
|
|
Average
|
|
|
|
Number
|
|
|
Contractual
|
|
|
Exercise
|
|
|
Number
|
|
|
Exercise
|
|
Exercise Prices
|
|
Outstanding
|
|
|
Life
|
|
|
Price
|
|
|
Exercisable
|
|
|
Price
|
|
|
$0.0167
|
|
|
16,000
|
|
|
|
0.86
|
|
|
$
|
0.0167
|
|
|
|
16,000
|
|
|
$
|
0.0167
|
|
0.90
|
|
|
203,000
|
|
|
|
1.10
|
|
|
|
0.90
|
|
|
|
203,000
|
|
|
|
0.90
|
|
1.50
|
|
|
250,000
|
|
|
|
1.97
|
|
|
|
1.50
|
|
|
|
250,000
|
|
|
|
1.50
|
|
1.75
|
|
|
883,100
|
|
|
|
2.55
|
|
|
|
1.75
|
|
|
|
883,100
|
|
|
|
1.75
|
|
3.00
|
|
|
25,000
|
|
|
|
3.08
|
|
|
|
3.00
|
|
|
|
25,000
|
|
|
|
3.00
|
|
3.50
|
|
|
205,000
|
|
|
|
3.53
|
|
|
|
3.50
|
|
|
|
205,000
|
|
|
|
3.50
|
|
3.75
|
|
|
100,000
|
|
|
|
3.73
|
|
|
|
3.75
|
|
|
|
100,000
|
|
|
|
3.75
|
|
5.50
|
|
|
755,000
|
|
|
|
4.52
|
|
|
|
5.50
|
|
|
|
755,000
|
|
|
|
5.50
|
|
6.00
|
|
|
30,000
|
|
|
|
5.07
|
|
|
|
6.00
|
|
|
|
28,500
|
|
|
|
6.00
|
|
6.50
|
|
|
693,500
|
|
|
|
3.71
|
|
|
|
6.50
|
|
|
|
516,325
|
|
|
|
6.50
|
|
6.82
|
|
|
541,500
|
|
|
|
3.54
|
|
|
|
6.82
|
|
|
|
300,550
|
|
|
|
6.82
|
|
8.44
|
|
|
485,000
|
|
|
|
4.21
|
|
|
|
8.44
|
|
|
|
204,500
|
|
|
|
8.44
|
|
12.11
|
|
|
538,000
|
|
|
|
5.92
|
|
|
|
12.11
|
|
|
|
29,800
|
|
|
|
12.11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,725,100
|
|
|
|
|
|
|
|
|
|
|
|
3,516,775
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash received from option exercise under all stock-based payment
arrangements for the years ended December 31, 2008 and 2009
was $67,250 and $874,760, respectively. Total shares exercised
during 2008 included cashless exercises. No actual tax benefit
was realized from option exercises during these periods.
Under the terms of the plan, all options expire if not exercised
within ten years after the grant date. The options generally
vest over five years at a rate of 20% after the first year, and
at a rate of five percent every three months beginning one year
after the grant date. If the employee ceases to be employed by
the Company for any reason before vested options have been
exercised, the employee has 90 days to exercise vested
options or they are forfeited.
The Company uses the Black-Scholes option pricing model to
determine the weighted-average fair value of options granted.
The Company will recognize the compensation cost of stock-based
awards on a straight-line basis over the vesting period of the
award.
The determination of the fair value of stock-based payment
awards utilizing the Black-Scholes model is affected by the
stock price and a number of assumptions, including expected
volatility, expected life, risk-free interest rate and expected
dividends. The following table sets forth the significant
assumptions used in the model during 2007, 2008, and 2009:
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
2007
|
|
2008
|
|
2009
|
|
Future dividends
|
|
$
|
|
$
|
|
$
|
Risk-free interest rate
|
|
4.26-4.84%
|
|
2.90-5.07%
|
|
2.00-2.94%
|
Expected volatility
|
|
32%-43%
|
|
48%-54%
|
|
57%-59%
|
Expected life
|
|
6.5 years
|
|
6.5 years
|
|
6.5 years
|
The Company will continue to use judgment in evaluating the
expected term, volatility and forfeiture rate related to the
stock-based compensation on a prospective basis, and
incorporating these factors into the Black-
F-29
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Scholes pricing model. Higher volatility and longer expected
lives result in an increase to stock-based compensation expense
determined at the date of grant. In addition, any changes in the
estimated forfeiture rate can have a significant effect on
reported stock-based compensation expense, as the cumulative
effect of adjusting the rate for all expense amortization is
recognized in the period that the forfeiture estimate is
changed. If a revised forfeiture rate is higher than the
previously estimated forfeiture rate, an adjustment is made that
will result in a decrease to the stock-based compensation
expense recognized in our consolidated financial statements. If
a revised forfeiture rate is lower than the previously estimated
rate, an adjustment is made that will result in an increase to
the stock-based compensation expense recognized in the
accompanying consolidated financial statements. These expenses
will affect the direct expenses, salaries and benefits and
project development costs expenses.
The weighted-average fair value of stock options granted during
the years ended December 31, 2007, 2008 and 2009, under the
Black-Scholes option pricing model was $7.53, $10.91 and $15.82,
respectively per share. For the years ended December 31,
2007, 2008 and 2009, the Company recorded stock-based
compensation expense of approximately $376,000, $508,000 and
$1,312,685, respectively, in connection with stock-based payment
awards. The compensation expense is allocated between direct
expenses, salaries and benefits and project development costs on
the accompanying consolidated statements of income and
comprehensive income based on the salaries and work assignments
of the employees holding the options. As of December 31,
2009, there was approximately $6.8 million of unrecognized
compensation expense related to non-vested stock option awards
that is expected to be recognized over a weighted-average period
of 4.02 years.
The Company has salary reduction/profit sharing plans under the
provisions of Section 401(k) of the Internal Revenue Code.
The plans cover all employees who have completed the minimum
service requirement, as defined by the plans. The plans require
the Company to contribute 100% of the first six percent of base
compensation that a participant contributes to the plans.
Matching contributions made by the Company were approximately
$1,211,000, $1,495,000 and $2,238,373 for the years ended
December 31, 2007, 2008 and 2009, respectively.
|
|
13.
|
COMMITMENTS
AND CONTINGENCIES
|
The Company leases certain administrative offices. The leases
are long-term noncancelable real estate lease agreements,
expiring at various dates through fiscal 2017. The agreements
generally provide for fixed minimum rental payments and the
payment of utilities, real estate taxes, insurance and repairs.
Rent and related expenses for the years ended December 31,
2007, 2008 and 2009 was approximately $2,912,000, $3,442,000 and
$3,328,646, respectively.
The Companys lease obligations under operating leases are
as follows:
|
|
|
|
|
|
|
Operating
|
|
|
|
Leases
|
|
|
Years ended December 31,:
|
|
|
|
|
2010
|
|
$
|
2,194,694
|
|
2011
|
|
|
1,064,930
|
|
2012
|
|
|
753,758
|
|
2013
|
|
|
491,144
|
|
2014
|
|
|
254,148
|
|
Thereafter
|
|
|
762,443
|
|
|
|
|
|
|
Total minimum lease payments
|
|
$
|
5,521,117
|
|
|
|
|
|
|
F-30
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Legal
Proceedings
In the ordinary course of business, the Company may be involved
in a variety of legal proceedings.
In 2009, a lawsuit was filed against the Company. In the
lawsuit, the plaintiff alleged that the Company caused action
for damages by soliciting and hiring the plaintiffs
employees. The Company and the plaintiff settled the lawsuit by
the Company paying $1,750,000 to the plaintiff and in exchange
both parties agreed to dismiss the lawsuit and reciprocally
release and discharge each other from all claims stated or which
could have been stated in the action against each other. The
settlement was not construed as an admission of any wrongdoing,
but rather was an economic decision to settle and compromise
disputed claims. The settlement was recorded in 2009 in general,
administrative and other expenses in the accompanying
consolidated statements of income and comprehensive income.
At the time of the Companys 2006 acquisition of Select
Energy Systems, Inc., the U.S. government was conducting an
investigation of contracting practices at a site where the
acquired company had performed energy conservation work. The
Company negotiated financial concessions from the seller and had
accrued for this contingency as part of its estimated opening
balance sheet. Therefore, the Company had recorded
$5.9 million as the best estimate of costs associated with
managing and settling this contingency at May 5, 2006.
During 2008, based on consultations with the customer and with
legal advisors, the Company concluded that the contingency was
no longer required. The recovery of $5.9 million was
recorded for 2008 and is included in general, administrative and
other expenses in the accompanying consolidated statements of
income and comprehensive income.
On February 27, 2009, the Company received notice of a
default termination from a customer for which the Company was
performing construction services. The dispute involves the
customers assertion of its understanding of the
contractual scope of work involved and with the completion date
of the project. The Company disputes the customers
assertion as it believes that the basis of the default arose
from a delay due to the discovery of and need for remediation of
previously undiscovered hazardous materials not identified by
the customer during contract negotiations. In February 2010, the
Company filed a motion for summary judgment as to a portion of
the complaint. In March 2010, the customer filed its response.
Discovery is currently ongoing and no date has been set for a
hearing on the Companys motion.
|
|
14.
|
GEOGRAPHIC
INFORMATION
|
The Company attributes revenue to customers based on the
location of the customer. The composition of the Companys
assets as of December 31, 2008 and 2009, and revenues from
sales to unaffiliated customers for the years ended
December 31, 2007, 2008 and 2009, between those in the
United States and those in other locations, is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
United States
|
|
|
|
|
|
$
|
251,179,388
|
|
|
$
|
322,599,256
|
|
Canada
|
|
|
|
|
|
|
40,847,585
|
|
|
|
52,945,352
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
292,026,973
|
|
|
$
|
375,544,608
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
278,074,041
|
|
|
$
|
308,559,860
|
|
|
$
|
341,607,504
|
|
Canada
|
|
|
100,403,169
|
|
|
|
84,070,159
|
|
|
|
83,632,845
|
|
Other
|
|
|
|
|
|
|
3,223,710
|
|
|
|
3,276,240
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
378,477,210
|
|
|
$
|
395,853,729
|
|
|
$
|
428,516,589
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-31
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
15.
|
RELATED
PARTY TRANSACTIONS
|
The Companys principal and controlling shareholder
provides a limited personal indemnification to the surety
companies that provide performance and payment bonds and other
surety products to the Company. In 2006, the Company issued
1,000,000 shares of restricted stock to the Companys
principal and controlling shareholder under the 2000 Stock
Incentive Plan (see Note 11) as compensation for providing
the personal indemnification. In 2009, the Company issued
300,000 stock options to the principal and controlling
shareholder under the 2000 Stock Incentive Plan as compensation
for providing the personal indemnification.
|
|
16.
|
OTHER
INCOME (EXPENSE), NET
|
Other income (expense), net, consisted of the following items
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Gain realized from derivative
|
|
$
|
|
|
|
$
|
|
|
|
$
|
2,493,980
|
|
Unrealized (loss) gain from derivatives
|
|
|
(1,365,813
|
)
|
|
|
(2,831,524
|
)
|
|
|
2,263,802
|
|
Interest expense, net of interest income
|
|
|
(1,448,667
|
)
|
|
|
(2,117,567
|
)
|
|
|
(2,993,250
|
)
|
Amortization of deferred financing costs
|
|
|
(323,587
|
)
|
|
|
(238,454
|
)
|
|
|
(201,622
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(3,138,067
|
)
|
|
$
|
(5,187,545
|
)
|
|
$
|
1,562,910
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
During 2009, the Company purchased an interest rate cap from a
major bank to mitigate effects of rising interest rates on a
fixed rate customer contract for $2.2 million. The Company
terminated the agreement in 2009 and realized a gain of
$2.5 million. The Company did not designate this derivative
as a cash flow hedge; therefore hedge accounting was not applied.
|
|
17.
|
FAIR
VALUE MEASUREMENT
|
On January 1, 2008, the Company adopted new guidance for
its financial assets and liabilities recognized at fair value on
a recurring basis (at least annually). The guidance defines fair
value as the price that would be received for an asset or paid
to transfer a liability (an exit price) in the principal or most
advantageous market for the asset or liability in an orderly
transaction between market participants on the measurement date.
The guidance also describes three levels of inputs that may be
used to measure fair value:
Level 1:
Inputs are based upon unadjusted
quoted prices for identical instruments traded in active markets.
Level 2:
Inputs are based upon quoted
prices for similar instruments in active markets, quoted prices
for identical or similar instruments in markets that are not
active, and model based valuation techniques for which all
significant assumptions are observable in the market or can be
corroborated by observable market data for substantially the
full term of the assets or liabilities.
Level 3:
Inputs are generally
unobservable and typically reflect managements estimates
of assumptions that market participants would use in pricing the
asset or liability. The fair values are therefore determined
using model-based techniques that include option pricing models,
discounted cash flow models, and similar techniques.
The following table presents the input level used to determine
the fair values of the Companys financial instruments
measured at fair value on a recurring basis for the years ended
December 31, 2008 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value as of
|
|
|
|
Level
|
|
|
December 31, 2008
|
|
|
December 31, 2009
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swap instruments
|
|
|
2
|
|
|
$
|
4,197,337
|
|
|
$
|
1,933,535
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
|
|
|
$
|
4,197,337
|
|
|
$
|
1,933,535
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-32
AMERESCO,
INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The fair value of the Companys interest rate swaps was
determined using cash flow analysis on the expected cash flow of
the contract in combination with observable market-based inputs,
including interest rate curves and implied volatilities. As part
of this valuation, the Company considered the credit ratings of
the counterparties to the interest rate swaps to determine if a
credit risk adjustment was required.
The Company is also required periodically to measure certain
other assets at fair value on a nonrecurring basis, including
long-lived assets, goodwill and other intangible assets. The
Company determined the fair value used in the impairment
analysis with its own discounted cash flow analysis. The Company
has determined the inputs used in such analysis as Level 3
inputs. The Company did not record any impairment charges on
goodwill or other intangible assets as no significant events
requiring non-financial assets and liabilities to be measured at
fair value occurred during the years ended December 31,
2007, 2008 and 2009. The Company did record an impairment charge
on long-lived assets during 2007 and 2009 (see Note 2).
|
|
18.
|
DERIVATIVE
INSTRUMENTS AND HEDGING ACTIVITIES
|
As of December 31, 2008 and 2009, the following table
presents information about the fair value amounts of the
Companys derivative instruments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability Derivatives as of
|
|
|
|
December 31, 2008
|
|
|
December 31, 2009
|
|
|
|
|
|
|
Balance Sheet
|
|
|
|
|
|
Balance Sheet
|
|
|
|
|
|
|
|
|
|
Location
|
|
|
Fair Value
|
|
|
Location
|
|
|
Fair Value
|
|
|
|
|
|
Derivatives not designated as hedging instruments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swap contracts
|
|
|
Other liabilities
|
|
|
$
|
4,197,337
|
|
|
|
Other liabilities
|
|
|
$
|
1,933,535
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table presents information about the effects of
the Companys derivative instruments on the consolidated
statements of income and comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location of Gain
|
|
Amount of (Loss) Gain Recognized in
|
|
|
|
|
|
|
(Loss) Recognized in
|
|
Income on Derivative for the Years Ended
|
|
|
|
|
|
|
Income on
|
|
December 31, are as follows:
|
|
|
|
|
|
|
Derivative
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
|
|
|
Derivatives Not Designated as Hedging Instruments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swap contract
|
|
Interest (expense) income
|
|
$
|
(1,365,813
|
)
|
|
$
|
(2,831,524
|
)
|
|
$
|
2,263,802
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate cap
|
|
Interest (expense) income
|
|
$
|
|
|
|
$
|
|
|
|
$
|
2,493,980
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
During 2010, the Company drew additional construction draws
totaling $812,397 under the construction and term loan financing
agreement that it entered into in February 2009 (See
Note 7). In March 2010, the Company converted the
construction loans to a term loan totaling $27,867,626. The loan
bears interest at a fixed rate of 6.95%, with quarterly
principal payments ranging from $206,211 to $2,424,302. The loan
matures in 2024.
During 2010, the Company entered into four federal ESPC
receivable financing arrangements. These financings are with
various financial institutions and total approximately
$40,417,000. Discount rates vary by project, ranging from 6.80%
to 7.81%.
The Company has evaluated subsequent events through the date of
this filing.
F-33
Through and
including
(the 25th day after the date of this prospectus), all
dealers effecting transactions in these securities, whether or
not participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealers obligation
to deliver a prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
Shares
Class A Common
Stock
PROSPECTUS
BofA Merrill Lynch
RBC Capital Markets
Oppenheimer &
Co.
,
2010
Part II
Information
Not Required in Prospectus
|
|
Item 13.
|
Other
Expenses of Issuance and Distribution
|
The following table indicates the expenses to be incurred in
connection with the offering described in this Registration
Statement, other than underwriting discounts and commissions,
all of which will be paid by Ameresco. All amounts are estimated
except the Securities and Exchange Commission registration fee
and the FINRA filing fee.
|
|
|
|
|
|
|
Amount
|
|
|
Securities and Exchange Commission registration fee
|
|
$
|
8,913
|
|
Financial Industry Regulatory Authority fee
|
|
|
13,000
|
|
listing fee
|
|
|
*
|
|
Accountants fees and expenses
|
|
|
*
|
|
Legal fees and expenses
|
|
|
*
|
|
Blue Sky fees and expenses
|
|
|
*
|
|
Transfer Agents fees and expenses
|
|
|
*
|
|
Printing and engraving expenses
|
|
|
*
|
|
Miscellaneous
|
|
|
*
|
|
|
|
|
|
|
Total Expenses
|
|
$
|
*
|
|
|
|
|
|
|
* To be filed by amendment.
|
|
Item 14.
|
Indemnification
of Directors and Officers
|
Section 102 of the General Corporation Law of the State of
Delaware permits a corporation to eliminate the personal
liability of directors of a corporation to the corporation or
its stockholders for monetary damages for a breach of fiduciary
duty as a director, except where the director breached his duty
of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit.
Our restated certificate of incorporation that will become
effective upon the closing of this offering provides that no
director of Ameresco shall be personally liable to it or its
stockholders for monetary damages for any breach of fiduciary
duty as director, notwithstanding any provision of law imposing
such liability, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty.
Section 145 of the Delaware General Corporation Law
provides that a corporation has the power to indemnify a
director, officer, employee, or agent of the corporation and
certain other persons serving at the request of the corporation
in related capacities against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by the person in
connection with an action, suit or proceeding to which he is or
is threatened to be made a party by reason of such position, if
such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and, in any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, except
that, in the case of actions brought by or in the right of the
corporation, no indemnification shall be made with respect to
any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or other adjudicating
court determines that, despite the adjudication of liability but
in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem
proper.
Our restated certificate of incorporation provides that we will
indemnify each person who was or is a party or threatened to be
made a party to any threatened, pending or completed action,
suit or proceeding (other
II-1
than an action by or in the right of Ameresco) by reason of the
fact that he or she is or was, or has agreed to become, a
director or officer of Ameresco, or is or was serving, or has
agreed to serve, at our request as a director, officer, partner,
employee or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other
enterprise (all such persons being referred to as an
Indemnitee), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses
(including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding and any appeal
therefrom, if such Indemnitee acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed
to, our best interests, and, with respect to any criminal action
or proceeding, he or she had no reasonable cause to believe his
or her conduct was unlawful. Our restated certificate of
incorporation provides that we will indemnify any Indemnitee who
was or is a party to an action or suit by or in the right of
Ameresco to procure a judgment in our favor by reason of the
fact that the Indemnitee is or was, or has agreed to become, a
director or officer of Ameresco, or is or was serving, or has
agreed to serve, at our request as a director, officer, partner,
employee or trustee or, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses
(including attorneys fees) and, to the extent permitted by
law, amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding, and any
appeal therefrom, if the Indemnitee acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed
to, the best interests of Ameresco, except that no
indemnification shall be made with respect to any claim, issue
or matter as to which such person shall have been adjudged to be
liable to us, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he or she
is entitled to indemnification of such expenses. Notwithstanding
the foregoing, to the extent that any Indemnitee has been
successful, on the merits or otherwise, he or she will be
indemnified by us against all expenses (including
attorneys fees) actually and reasonably incurred in
connection therewith. Expenses must be advanced to an Indemnitee
under certain circumstances.
We have entered into indemnification agreements with each of our
directors and our executive officers. These indemnification
agreements may require us, among other things, to indemnify our
directors and executive officers for some expenses, including
attorneys fees, judgments, fines and settlement amounts
incurred by a director or executive officer in any action or
proceeding arising out of his service as one of our directors or
executive officers, or any of our subsidiaries or any other
company or enterprise to which the person provides services at
our request.
We maintain a general liability insurance policy that covers
certain liabilities of directors and officers of our corporation
arising out of claims based on acts or omissions in their
capacities as directors or officers.
In any underwriting agreement we enter into in connection with
the sale of our Class A common stock being registered
hereby, the underwriters will agree to indemnify, under certain
conditions, us, our directors, our officers and persons who
control us with the meaning of the Securities Act of 1933, as
amended, against certain liabilities.
|
|
Item 15.
|
Recent
Sales of Unregistered Securities
|
Set forth below is information regarding securities sold by us
within the past three years. Also included is the consideration
received by us for such sales and information relating to the
section of the Securities Act, or rule of the Securities and
Exchange Commission, under which exemption from registration was
claimed.
Between January 1, 2007 and December 31, 2007, we
issued an aggregate of 76,000 shares of our common stock
upon exercise of options for aggregate consideration of $74,015.
Between January 1, 2008 and December 31, 2008, we
issued an aggregate of 14,000 shares of our common stock
upon exercise of options for aggregate consideration of $67,250.
Between January 1, 2009 and December 31, 2009, we
issued an aggregate of 869,000 shares of our common stock
upon exercise of options for aggregate consideration of $874,760.
Since January 1, 2010, we have not sold any securities.
II-2
The shares of our common stock described in this paragraph
(a) of Item 15 were issued pursuant to written
compensatory plans or arrangements with our employees, directors
and consultants in reliance upon the exemption from the
registration requirements of the Securities Act provided by
Rule 701 promulgated under the Securities Act or, in some
cases, in reliance upon the exemption from the registration
requirements of the Securities Act provided by Section 4(2)
of the Securities Act and Regulation D promulgated
thereunder as sales by an issuer not involving any public
offering.
No underwriters were involved in the foregoing issuances of
securities. All of the foregoing securities are deemed
restricted securities for purposes of the Securities Act. All
certificates representing the issued shares of common stock
described in Item 15 included appropriate legends setting
forth that the securities had not been registered and the
applicable restrictions on transfer.
The exhibits to the registration statement are listed in the
Exhibit Index to this registration statement and are
incorporated by reference herein.
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreement, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to
be part of the registration statement as of the time it was
declared effective.
(2) For purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) For the purpose of determining liability under the
Securities Act to any purchaser, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in
the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
first use, supersede or
II-3
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such date of
first use.
(4) For the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities, in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Framingham, Commonwealth of
Massachusetts, on the
31
st
day
of March, 2010.
AMERESCO, INC.
|
|
|
|
By:
|
/s/
George
P. Sakellaris
|
George P. Sakellaris
President and Chief Executive Officer
POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George P. Sakellaris,
David J. Corrsin and Andrew B. Spence, and each of them,
his/her
true
and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him/her and in
his/her
name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
Registration Statement, and any subsequent registration
statements pursuant to Rule 462 of the Securities Act and
to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as
he/she
might
or could do in person, hereby ratifying and confirming all that
each of said attorney-in-fact or
his/her
substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/
George
P. Sakellaris
George
P. Sakellaris
|
|
Chairman of the Board of Directors, President and Chief
Executive Officer (Principal Executive Officer)
|
|
March 31, 2010
|
|
|
|
|
|
/s/
Andrew
B. Spence
Andrew
B. Spence
|
|
Chief Financial Officer
(Principal Financial and
Accounting Officer)
|
|
March 31, 2010
|
|
|
|
|
|
/s/
David
J. Anderson
David
J. Anderson
|
|
Director
|
|
March 31, 2010
|
|
|
|
|
|
/s/
David
J. Corrsin
David
J. Corrsin
|
|
Director
|
|
March 31, 2010
|
|
|
|
|
|
/s/
William
M. Bulger
William
M. Bulger
|
|
Director
|
|
March 31, 2010
|
|
|
|
|
|
/s/
Guy
W. Nichols
Guy
W. Nichols
|
|
Director
|
|
March 31, 2010
|
|
|
|
|
|
/s/
Joseph
W. Sutton
Joseph
W. Sutton
|
|
Director
|
|
March 31, 2010
|
II-5
EXHIBIT INDEX
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Exhibit
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Number
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Description
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1
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.1*
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Form of Underwriting Agreement
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3
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.1*
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Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed and effective prior to the closing of
the offering
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3
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.2*
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Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed promptly following the closing of the
offering
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3
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.3*
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Form of Amended and Restated By-Laws of the Registrant, to be
effective prior to the closing of the offering
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4
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.1*
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Specimen Certificate evidencing shares of Class A common
stock
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5
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.1*
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP
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10
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.1
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Lease dated November 20, 2000 between Ameresco, Inc. and
BCIA New England Holdings, LLC
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10
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.2
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First Amendment to Lease dated November 2001 by and between
Ameresco, Inc. and BCIA New England Holdings, LLC
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10
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.3
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Second Amendment to Lease and Extension Agreement dated
April 8, 2005 by and between Ameresco, Inc. and BCIA New
England Holdings, LLC
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10
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.4
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Third Amendment to Lease dated April 17, 2007 by and
between RREEF America REIT III-Z1 LLC and Ameresco, Inc.
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10
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.5
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Amended and Restated Credit and Security Agreement dated
June 10, 2008 among Ameresco, Inc., certain guarantors
party thereto, certain lenders party thereto from time to time
and Bank of America, N.A. as Administrative Agent
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10
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.6
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Ameresco, Inc. 2000 Stock Incentive Plan
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10
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.7
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Form of Incentive Stock Option Agreement granted under Ameresco,
Inc. 2000 Stock Incentive Plan
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10
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.8
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Form of Non-Qualified Stock Option Agreement granted under
Ameresco, Inc. 2000 Stock Incentive Plan
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10
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.9
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Form of Restricted Stock Agreement granted under Ameresco, Inc.
2000 Stock Incentive Plan
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10
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.10*
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Ameresco, Inc. 2010 Stock Incentive Plan
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10
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.11*
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Form of Incentive Stock Option Agreement granted under Ameresco,
Inc. 2010 Stock Incentive Plan
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10
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.12*
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Form of Non-Qualified Stock Option Agreement granted under
Ameresco, Inc. 2010 Stock Incentive Plan
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10
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.13*
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Form of Restricted Stock Agreement granted under Ameresco, Inc.
2010 Stock Incentive Plan
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10
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.14
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Stockholder Agreement dated as of September 25, 2008 by and
among the Registrant, Samuel T. Byrne, AMCAP Holdings, Ltd.,
George P. Sakellaris and such other persons who from time to
time become party thereto
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10
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.15*
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Form of Indemnification Agreement entered into between the
Registrant and each director and executive officer
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21
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.1*
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Subsidiaries of the Registrant
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23
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.1
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Consent of Caturano and Company, P.C.
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23
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.2*
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included
in Exhibit 5.1)
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24
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.1
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Powers of Attorney (included on signature page)
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*
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To be filed by amendment.
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+
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Confidential treatment requested as to certain portions, which
portions have been omitted and filed separately with the
Securities and Exchange Commission.
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II-6
Exhibit
10.5
Execution Copy
AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
dated as of
June 10, 2008
among
AMERESCO, INC.,
as Borrower,
THE GUARANTORS PARTY HERETO,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
BANK OF AMERICA, N.A.
as Administrative Agent
TABLE OF CONTENTS
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Page
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Article I Definitions
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1
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1.1 Defined Terms
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1
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1.2 Terms Generally
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21
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1.3 Accounting Terms; GAAP
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21
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1.4 Joint and Several Obligations; Designated Financial Officers
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22
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1.5 Letter of Credit Amounts
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22
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Article II The Credits
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22
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2.1 Revolving Loans
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22
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2.2 [Reserved.]
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24
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2.3 LIBOR Borrowings
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24
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2.4 Letters of Credit
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26
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2.5 Loans and Borrowings; Funding of Borrowings
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31
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2.6 Swing Loan Facility
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32
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2.7 Expiration, Termination or Reduction of Commitments
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35
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2.8 Payments Generally; Pro Rata Treatment; Sharing of Set-Offs; Collection
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35
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2.9 Prepayment of Loans
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37
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2.10 Fees
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40
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2.11 Increased Costs
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41
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2.12 Taxes
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42
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2.13 Mitigation Obligations; Replacement of Lenders
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42
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Article III Guarantee by Guarantors
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43
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3.1 The Guarantee
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43
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3.2 Obligations Unconditional
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43
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3.3 Reinstatement
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44
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3.4 Subrogation
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44
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3.5 Remedies
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44
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3.6 Instrument for the Payment of Money
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44
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3.7 Continuing Guarantee
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45
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3.8 General Limitation on Amount of Obligations Guaranteed
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45
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Article IV The Collateral
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45
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4.1 Grant of Security Interest
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45
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4.2 Special Warranties and Covenants of the Credit Parties
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47
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4.3 Fixtures, etc
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49
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4.4 Right of Agent to Dispose of Collateral, etc
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49
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4.5 Right of Agent to Use and Operate Collateral, etc
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50
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4.6 Proceeds of Collateral
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50
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Article V Representations and Warranties
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51
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5.1 Organization; Powers
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51
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5.2 Authorization; Enforceability
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51
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5.3 Governmental Approvals; No Conflicts
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51
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5.4 Financial Condition; No Material Adverse Change
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51
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- i -
TABLE OF CONTENTS
(continued)
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Page
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5.5 Properties
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52
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5.6 Litigation and Environmental Matters
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53
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5.7 Compliance with Laws and Agreements
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53
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5.8 Investment and Holding Company Status
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53
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5.9 Taxes
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53
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5.10 ERISA
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54
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5.11 Disclosure
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54
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5.12 Capitalization
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54
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5.13 Subsidiaries
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54
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5.14 Material Indebtedness, Liens and Agreements
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55
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5.15 Federal Reserve Regulations
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55
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5.16 Solvency
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56
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5.17 Force Majeure
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56
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5.18 Accounts Receivable
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56
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5.19 Labor and Employment Matters
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57
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5.20 Bank Accounts
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57
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5.21 Matters Relating to the Special Purpose Subsidiaries
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57
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5.22 Matters Relating to Inactive Subsidiaries
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58
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5.23 OFAC
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58
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5.24 Patriot Act
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58
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Article VI Conditions
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58
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6.1 Effective Time
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58
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6.2 Each Extension of Credit
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60
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Article VII Affirmative Covenants
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61
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7.1 Financial Statements and Other Information
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61
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7.2 Notices of Material Events
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63
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7.3 Existence; Conduct of Business
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63
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7.4 Payment of Obligations
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63
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7.5 Maintenance of Properties; Insurance
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64
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7.6 Books and Records; Inspection Rights
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64
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7.7 Fiscal Year
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64
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7.8 Compliance with Laws
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64
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7.9 Use of Proceeds
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64
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7.10 Certain Obligations Respecting Subsidiaries; Additional Guarantors
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65
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7.11 ERISA
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65
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7.12 Environmental Matters; Reporting
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65
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7.13 Matters Relating to Additional Real Property Collateral
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66
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Article VIII Negative Covenants
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66
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8.1 Indebtedness
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66
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8.2 Liens
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67
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8.3 Contingent Liabilities
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68
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8.4 Fundamental Changes; Asset Sales
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69
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8.5 Investments; Hedging Agreements
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71
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- ii -
TABLE OF CONTENTS
(continued)
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Page
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8.6 Restricted Junior Payments
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72
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8.7 Transactions with Affiliates
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72
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8.8 Restrictive Agreements
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73
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8.9 Sale-Leaseback Transactions
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73
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8.10 Certain Financial Covenants
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73
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8.11 Lines of Business
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74
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8.12 Other Indebtedness
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74
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8.13 Modifications of Certain Documents
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74
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8.14 Transactions with Foreign Subsidiaries, Special Purpose Subsidiaries and
Inactive Subsidiaries
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74
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Article IX Events of Default
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74
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9.1 Events of Default
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74
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9.2 Rights and Remedies Upon any Event of Default
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76
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9.3 Receivership
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77
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Article X The Agent
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78
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10.1 Appointment and Authorization
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78
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10.2 Agents Rights as Lender
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78
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10.3 Duties As Expressly Stated
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78
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10.4 Reliance By Agent
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79
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10.5 Action Through Sub-Agents
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79
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10.6 Resignation of Agent and Appointment of Successor Agent
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79
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10.7 Lenders Independent Decisions
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80
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10.8 Indemnification
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80
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10.9 No Other Duties, Etc
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81
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10.10 Agent May File Proofs of Claim
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81
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10.11 Guaranty Matters
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81
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10.12 Collateral Matters
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82
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Article XI Miscellaneous
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83
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11.1 Notices
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83
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11.2 Waivers; Amendments
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85
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11.3 Expenses; Indemnity: Damage Waiver
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86
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11.4 Successors and Assigns
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88
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11.5 Survival
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91
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11.6 Counterparts; Integration; References to Agreement; Effectiveness
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91
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11.7 Severability
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91
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11.8 Right of Setoff
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91
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11.9 Subordination by Credit Parties
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92
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11.10 Governing Law; Jurisdiction; Consent to Service of Process
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92
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11.11 WAIVER OF JURY TRIAL
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93
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11.12 Headings
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93
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11.13 Release of Collateral and Guarantees
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93
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11.14 Confidentiality
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93
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11.15 Payments Set Aside
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94
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- iii -
TABLE OF CONTENTS
(continued)
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Page
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11.16 No Advisory or Fiduciary Responsibility
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94
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11.17 Electronic Execution of Assignments and Certain Other Documents
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94
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11.18 USA Patriot Act Notice
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95
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- iv -
SCHEDULES AND EXHIBITS
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Schedule A
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AutoBorrow Agreement
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Schedule 1.1
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Material Owned Properties
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Schedule 1.4
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Designated Financial Officers
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Schedule 2.1
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Lenders and Commitments
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Schedule 2.4
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Existing Letters of Credit
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Schedule 4.2
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Websites and Domain Names
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Schedule 4.3
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Fixtures
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Schedule 5.3
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Governmental Approvals; No Conflicts
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Schedule 5.4
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Financial Condition; No Material Adverse Changes
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Schedule 5.5
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Properties; Proprietary Rights; Real Property Assets
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Schedule 5.6
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Litigation and Environmental Matters
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Schedule 5.7
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Compliance with Laws and Agreements
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Schedule 5.9
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Taxes
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Schedule 5.10
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Pension Plans
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Schedule 5.12
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Capitalization
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Schedule 5.13
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Subsidiaries
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Schedule 5.14
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Material Indebtedness, Liens and Agreements
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Schedule 5.19
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Labor and Employment Matters
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Schedule 5.20
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Bank Accounts
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Schedule 8.1
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Existing Indebtedness
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Schedule 8.5
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Existing Investments
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Schedule 8.7
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Transactions with Affiliates
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Schedule 8.8
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Restrictive Agreements
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Exhibit A-1
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Form of Revolving Credit Note
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Exhibit A-2
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Form of Swing Loan Note
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Exhibit B
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Form of Advance Request
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Exhibit C
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Form of Perfection Certificate
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Exhibit D
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Form of Compliance Certificate
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Exhibit E
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Form of Amended and Restated Pledge Agreement
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Exhibit F
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[Reserved]
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Exhibit G
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[Reserved]
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Exhibit H
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Form of Opinion of Counsel to the Borrower
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Exhibit I
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Form of Solvency Certificate
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Exhibit J
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Form of Assignment and Assumption
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- v -
AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT dated as of June 10, 2008 (this
Agreement) is by and among AMERESCO, INC., a Delaware corporation, as borrower, THE GUARANTORS
PARTY HERETO, THE LENDERS FROM TIME TO TIME PARTY HERETO, and BANK OF AMERICA, N.A., as
Administrative Agent.
This Agreement amends and restates that certain Credit and Security Agreement dated as of
December 29, 2004, as amended (the Prior Credit Agreement), by and among the Borrower, the
guarantors party thereto, the lenders party thereto and Bank of America, N.A. (as successor by
merger to Fleet National Bank).
The parties hereto agree as follows:
ARTICLE I
Definitions
1.1
Defined Terms
. As used in this Agreement, the following terms have the meanings specified
below:
Additional Mortgage
has the meaning assigned to such term in Section 7.13(a).
Additional Mortgaged Property
means any Real Property Asset that is now owned or
leased, or hereinafter acquired, by the Credit Parties, which: (i) is of material value as
Collateral or of material importance to the operations of the Credit Parties (taken as a whole),
and (ii) the Agent determines to acquire a Mortgage on following the Restatement Date.
Administrative Questionnaire
means an Administrative Questionnaire in a form
supplied by the Agent.
Advance Request
means a request for a Borrowing satisfying the requirements of
Section 2.1(b) and substantially in the form of
Exhibit B
annexed hereto.
Affiliate
means, with respect to a specified Person, another Person that Controls or
is Controlled by or is under common Control with the Person specified;
provided
, that, for
purposes of this Agreement, no Core Domestic Ameresco Company shall be deemed to be an Affiliate of
any other Core Domestic Ameresco Company.
Agent
means Bank of America, N.A. in its capacity as administrative agent for the
Lenders hereunder, together with its successors and assigns in such capacity.
Aggregate Deficiency
shall have the meaning set forth in Section 2.8(c).
Ameresco Canada
means Ameresco Canada, Inc., a company organized under the laws of
Ontario, Canada.
Ameresco Huntington Beach
means Ameresco Huntington Beach, LLC, a Delaware limited
liability company.
Ameresco Federal Solutions
means Ameresco Federal Solutions, Inc., a Delaware
corporation.
- 1 -
AmerescoSolutions
means AmerescoSolutions, Inc., a North Carolina corporation.
Applicable Margin
and
Applicable Unused Fee Rate
means, for any Type of
Loans the following percentages per annum:
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Applicable Margin Base
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(% per annum)
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Applicable Unused Fee Rate
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Rate Loans
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LIBOR Loans
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(% per annum)
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0.25%
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1.75%
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0.375%
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Applicable Percentage
means when referenced with respect to any Lender, the
percentage of the total Commitments represented by such Lenders Commitment.
Applicable Recipient
has the meaning assigned to such term in Section 2.8(d).
Assignee Group
means two or more Eligible Assignees that are Affiliates of one
another.
Assignment and Assumption
means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 11.4),
and accepted by the Agent, in the form of
Exhibit J
annexed hereto or any other form
approved by the Agent which complies with the provisions of Section 11.4.
AutoBorrow Agreement
means that certain agreement dated as of October 19, 2007
between the Borrower and Bank of America, N.A., a copy of which is attached as
Schedule A
hereto. For the avoidance of doubt, in the event that Bank of America, N.A. shall cease to be the
sole Lender hereunder, the AutoBorrow Agreement shall be deemed to be terminated.
Bank of America
means Bank of America, N.A. and its successors.
Bank Product Obligations
means all present and future liabilities, obligations and
Indebtedness of the Credit Parties owing to the Agent, any Affiliate of the Agent or any Lender
under or in connection with any cash management or related services or products provided by the
Agent, any Affiliate of the Agent or any Lender to or for the account of the Credit Parties,
including, without limitation, liabilities, obligations or Indebtedness in respect of automated
clearing house and other fund transfers, checks, money orders, drafts, instruments, funds, payments
and other items and forms of remittances paid, deposited or otherwise credited to any deposit,
disbursement or other account of any Credit Party, any overdraft or other extension of credit made
to cover any funds transfer, check, draft, instrument or amount paid for the account or benefit of
any Credit Party, and all fees, charges, indemnities, expenses and other amounts from time to time
owing to the Agent, any Affiliate of the Agent or any Lender in connection therewith (all whether
accruing before or after the commencement of any bankruptcy proceeding by or against any Credit
Party and regardless of whether allowed as a claim in any such proceeding).
Base Rate
means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its prime rate. The prime rate is
a rate set by Bank of America based upon various factors including Bank of Americas costs and
desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.
- 2 -
Board
means the Board of Governors of the Federal Reserve System of the United
States of America.
Borrower
means Ameresco, Inc., a Delaware corporation.
Borrowing
means Loans of the same Type, made, converted or continued on the same
date and, in the case of LIBOR Loans, as to which a single Interest Period is in effect.
Boston Capital
means Boston Capital Institutional Advisor, certain Affiliates
thereof and investors therein.
Business Day
means any day that is not a Saturday, Sunday or other day on which
commercial banks in Boston, Massachusetts are authorized or required by law to remain closed;
provided
that, when used in connection with a LIBOR Loan, the term
Business Day
shall also exclude any day on which banks are not open for dealings in U.S. dollar deposits in the
London interbank market.
Canadian Subsidiaries
means each of Ameresco Canada, Ameresco Quebec, Inc. and any
other subsidiary of the Borrower organized under the laws of Canada or any jurisdiction within
Canada other than Non-Core Energy Subsidiaries.
Capital Expenditures
means, for any period, the sum for the Core Ameresco Companies
(determined on a consolidated basis without duplication in accordance with GAAP) of the aggregate
amount of cash payments in respect of expenditures made during such period to acquire or construct
fixed assets, plant and equipment (including renewals, improvements and replacements, but excluding
repairs) computed in accordance with GAAP;
provided
that such term shall not include any
such expenditures in connection with any replacement or repair of Property affected by a Casualty
Event.
Capital Lease Obligations
of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Cash Flow
means for any fiscal period, (a) EBITDA of the Core Ameresco Companies for
such period
minus
(b) the sum of the following for the Core Ameresco Companies of (i)
Capital Expenditures made during such fiscal period, (ii) the aggregate amount paid in cash in
respect of income, franchise, real estate and other like taxes during such fiscal period, and (iii)
dividends, withdrawals and other distributions paid in cash by the Core Ameresco Companies during
such fiscal period.
Casualty Event
means, with respect to any Property of any Person, any loss of or
damage to, or any condemnation or other taking of, such Property for which such Person or any of
its Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other
compensation.
Change in Law
means (a) the adoption of any law, rule or regulation after the
Restatement Date, (b) any change after the Restatement Date in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority or (c) compliance by any
Lender or the Issuing Lender (or, for purposes of subsection 2.11(b), by any lending office of such
Lender or by such Lenders or the Issuing Lenders holding company, if any) with any request,
guideline or directive (whether or not having the force of law), other than a request or directive
to comply with any law, rule or regulation in effect on the Restatement Date, of any Governmental
Authority made or issued after the Restatement Date.
- 3 -
Change of Control
means the occurrence of any of the following: (a) any Person (or
group of Persons acting in concert) other than the Sakellaris Group or Boston Capital shall acquire
or own more than 10% of the outstanding capital stock of the Borrower; or (b) the failure of the
Borrower to own, directly or indirectly through one or more Subsidiaries, 100% of the outstanding
capital stock of each of the other Credit Parties; or (c) the failure of the Borrower to own,
directly or indirectly through one or more Subsidiaries, at least 90% of the outstanding capital
stock of each of the Canadian Subsidiaries; or (d) the sale of all or substantially all of the
business or assets of any Credit Party or Canadian Subsidiary; or (e) George Sakellaris shall for
any reason cease to serve in his present capacity as Chief Executive Officer of the Borrower and
the Borrower shall fail within one hundred twenty (120) days of the date that Mr. Sakellaris ceases
to serve in such capacity, to retain a replacement for Mr. Sakellaris who is reasonably acceptable
to the Agent.
Code
means the Internal Revenue Code of 1986, as amended from time to time.
Collateral
means, collectively, all of the Property in which Liens are purported to
be granted hereunder and under the other Loan Documents as security for the Obligations of the
Credit Parties hereunder.
Collateral Documents
means, collectively, the Pledge Agreement and all other
agreements, instruments and documents (other than this Agreement) now or hereafter executed and
delivered in connection with this Agreement pursuant to which Liens are granted or purported to be
granted to the Agent in Collateral securing all or part of the Obligations, each in form and
substance reasonably satisfactory to the Agent.
Commitments
means (a) for all Lenders, the aggregate Revolving Credit Commitments of
all Lenders, and (b) for each Lender the aggregate of such Lenders Revolving Credit Commitment.
Competitor
means each of Siemens AG, Johnson Controls, Inc., Honeywell
International, Inc. and Chevron Corporation and each of their Subsidiaries.
Compliance Certificate
means a certificate signed by a Designated Financial Officer,
in substantially the form of
Exhibit D
annexed hereto, (a) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (b) setting forth reasonably detailed
calculations demonstrating compliance with Section 8.10, (c) setting forth in reasonable detail all
adjustments to the consolidated financial statements of the Borrower and its Subsidiaries necessary
to reflect the exclusion of all Subsidiaries of the Borrower other than the Core Ameresco Companies
from the financial covenant calculations set forth therein, and (d) stating whether any change in
GAAP or in the application thereof has occurred since the date of the audited financial statements
referred to in Section 5.4 and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate.
Construction Completion and Cost Overrun Guaranty
means, in connection with any
Renewable Energy Project, a guaranty of (i) the completion and operation of such Renewable Energy
Project on or prior to the date set forth in such guaranty and (ii) the payment of all construction
costs and expenses related to such Renewable Energy Project in excess of the proposed budget for
such Renewable Energy Project.
Control
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise.
Controlling
and
Controlled
have meanings correlative thereto. A Person who owns or holds capital stock, beneficial interests
or other securities representing ten percent (10%) or
- 4 -
more of the Total Voting Power of another Person shall be deemed, for purposes of this
Agreement, to control such other Person.
Control Agreement
means, with respect to any deposit or securities account of any
Credit Party, a control agreement, in form and substance reasonably satisfactory to the Agent,
executed and delivered by such Credit Party, the financial institution at which such account is
maintained and the Agent, as any such agreement may be amended, supplemented or otherwise modified
from time to time.
Controlled Account
has the meaning assigned to such term in Section 4.3(a).
Copyrights
means all copyrights, whether statutory or common law, owned by or
assigned to the Credit Parties, and all exclusive and nonexclusive licenses to the Credit Parties
from third parties or rights to use copyrights owned by such third parties, including, without
limitation, the registrations, applications and licenses listed on
Schedule 5.5
hereto,
along with any and all (a) renewals and extensions thereof, (b) income, royalties, damages, claims
and payments now and hereafter due and/or payable with respect thereto, including, without
limitation, damages and payments for past, present or future infringements thereof, (c) rights to
sue for past, present and future infringements thereof, and (d) foreign copyrights and any other
rights corresponding thereto throughout the world.
Core Ameresco Companies
means the Core Domestic Ameresco Companies and the Canadian
Subsidiaries.
Core Domestic Ameresco Companies
means each of the Credit Parties. Credit Parties
means the Borrower and the Guarantors.
Debt Service
means, for any period, the sum, for the Core Ameresco Companies
(determined on a consolidated basis in accordance with GAAP) of (a) all regularly scheduled
principal payments, as such amounts may be adjusted from time to time by reason of any prepayments,
of Indebtedness (including the principal component of any payments in respect of Capital Lease
Obligations), but excluding any prepayments pursuant to Section 2.9 made during such period and any
principal payments in respect of the Revolving Loans made during such period,
plus
(b) all
Interest Expense for such period.
Debtor Relief Laws
means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
Default
means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Designated Financial Officer
means an individual holding one or more of the
following offices with the Borrower or otherwise having executive responsibilities for financial
matters and listed in
Schedule 1.4
hereto: chief financial officer, principal accounting
officer, treasurer, assistant treasurer or controller.
Disclosed Matters
means the actions, suits and proceedings and the environmental
matters disclosed in
Schedule 5.6
.
Disposition
means any sale, assignment, transfer or other disposition of any
property (whether now owned or hereafter acquired) by any Credit Party to any Person other than to
another Credit Party excluding (a) the granting of Liens to the Agent and Lenders and other Liens
permitted hereunder, (b) any
- 5 -
sale, assignment, transfer or other disposition by any Credit Party of the equity interests of
any Special Purpose Subsidiary (other than the Hawaii Joint Venture), and (c) any sale, assignment,
transfer or other disposition of (i) any property sold or disposed of in the ordinary course of
business and on ordinary business terms, (ii) any property no longer used or useful in the business
of the Credit Parties and (iii) any Collateral pursuant to an exercise of remedies by the Agent
hereunder or under any other Loan Document.
EBITDA
means, for any period, (a) the net income of the Core Ameresco Companies
(determined on a consolidated basis without duplication in accordance with GAAP) for such period,
plus (b) to the extent deducted in calculating net income of the Core Ameresco Companies (i) income
taxes accrued during such period, (ii) Interest Expense during such period, (iii) depreciation and
amortization for such period, (iv) except to the extent paid in cash by the Core Ameresco
Companies, loss attributable to equity in Affiliates which are not Subsidiaries for such period,
(v) extraordinary or unusual losses during such period (it being understood that any payment
required to be made by any Core Ameresco Company in respect of any Renewable Energy Project
Guaranty Liability shall reduce net income of the Core Ameresco Companies and shall not be added
back to EBITDA as an extraordinary loss), (vi) non-recurring items, fees and expenses associated
with the transactions contemplated by this Agreement (
provided
, that the aggregate amount
added back pursuant to this clause (b)(vi) shall not exceed $600,000 after the Effective Time), and
(vii) the aggregate amount received in cash by the Core Ameresco Companies during such fiscal
period in respect of regularly scheduled dividends or distributions from the Special Purpose
Subsidiaries, calculated and paid in accordance with the organizational documents of such Special
Purpose Subsidiaries and included as net income of the Core Ameresco Companies under GAAP for such
fiscal period (
provided
, that the amount added back pursuant to this clause (vii) shall not
include any amounts received by the Core Ameresco Companies in connection with any sale, transfer
or other disposition of assets or equity interests of any Special Purpose Subsidiary);
minus
(c) to the extent such items were added in calculating net income of the Core
Ameresco Companies (i) extraordinary or unusual gains during such period and (ii) proceeds received
during such period in respect of Casualty Events, Dispositions and any sale, assignment, transfer
or other disposition by any Credit Party of the equity interests of any Special Purpose Subsidiary.
For purposes of calculating EBITDA for any period during which a Permitted Acquisition is
consummated, EBITDA shall be adjusted in a manner proposed by the Borrower and reasonably
satisfactory to the Agent to reflect certain expense deductions in connection with such Permitted
Acquisition.
Effective Time
means the time at which the conditions specified in Section 6.1 are
satisfied (or waived in accordance with Section 11.2).
Eligible Assignee
means any Person that meets the requirements to be an assignee
under Sections 11.4(b)(iii), 11.4(b)(v) and 11.4(b)(vi) (subject to consents, if any, as may be
required under Section 11.4(b)(iii)).
Energy Conservation Financing Collateral
means all rights of any Credit Party in and
to task orders or contracts which are subject to a security interest in favor of the Energy
Conservation Project Financing Agent in connection with any Energy Conservation Project Financing.
Energy Conservation Projects
means (i) any energy conservation project conducted by
any Credit Party pursuant to an Energy Savings Performance Contract between such Credit Party any
governmental entity and/or an agency thereof and (ii) any energy conservation project conducted by
a Credit Party for a non-governmental entity on terms substantially similar to the projects
described in clause (i) of this definition.
- 6 -
Energy Conservation Project Financing
means the bond financing arrangements or
master purchase agreements and assignment schedules or similar financing arrangements entered into
by any Credit Party from time to time with the Energy Conservation Project Financing Agent to
finance the construction and completion of the Energy Conservation Projects.
Energy Conservation Project Financing Agent
means the financial institution acting
in the capacity of agent or trustee for itself and/or other lenders or bondholders in connection
with any Energy Conservation Project Financing.
Environmental Laws
means all applicable laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
Environmental Liability
means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any
Credit Party directly or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release
of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Rights
means, with respect to any Person, any subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including any stockholders or
voting trust agreements) for the issuance or sale of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other ownership interests of any
type in, such Person.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
ERISA Affiliate
means any trade or business (whether or not incorporated) that,
together with the Credit Parties, is treated as a single employer within the meaning of Section
414(b), (c), (m) or (o) of the Code. Notwithstanding the foregoing, for purposes of any liability
related to a Multiemployer Plan under Title IV of ERISA, the term ERISA Affiliate means any trade
or business that, together with the Credit Parties, is treated as a single employer within the
meaning of Section 4001(b) of ERISA.
ERISA Event
means (a) a reportable event, as defined in Section 4043 of ERISA or
the regulations issued thereunder for which the notice requirement has not been waived with respect
to any Pension Plan, (b) the existence with respect to any Pension Plan of an accumulated funding
deficiency (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived,
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Pension Plan, (d) the incurrence
by any Credit Party or any ERISA Affiliate of any liability under Title IV of ERISA with respect to
the termination of any Pension Plan, (e) the receipt by any Credit Party or any ERISA Affiliate
from the PBGC or plan administrator of any notice relating to an intention to terminate any Pension
Plan or Pension Plans or to appoint a trustee to administer any Pension Plan, or (f) the receipt by
any Credit Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from any Credit Party or any ERISA Affiliate of any notice of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
- 7 -
Eurodollar Rate
means for any Interest Period with respect to a LIBOR Loan, a rate
per annum determined by Agent pursuant to the following formula:
|
|
|
|
Eurodollar Rate =
|
|
Eurodollar Base Rate
|
|
|
|
|
1.00 Eurodollar Reserve Percentage
|
Where,
Eurodollar Base Rate
means, for such Interest Period the rate per annum equal to
the British Bankers Association LIBOR Rate (
BBA LIBOR
), as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as designated by
Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, for Dollar deposits (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period. If such rate
is not available at such time for any reason, then the
Eurodollar Base Rate
for
such Interest Period shall be the rate per annum determined by the Agent to be the rate at
which deposits in U.S. Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period would be
offered by Bank of Americas London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period.
Eurodollar Reserve Percentage
means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on
such day, whether or not applicable to any Lender, under regulations issued from time to
time by the Board of Governors of the Federal Reserve System of the United States for
determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as
Eurocurrency liabilities). The Eurodollar Rate for each outstanding Eurodollar Rate Loan
shall be adjusted automatically as of the effective date of any change in the Eurodollar
Reserve Percentage.
Event of Default
has the meaning assigned to such term in Section 9.1.
Excluded Taxes
means, with respect to the Agent, any Lender, the Issuing Lender or
any other recipient of any payment to be made by or on account of any Obligation hereunder, (a)
income, net worth or franchise taxes imposed on (or measured by) its net income or net worth by the
United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
lending office is located or in which it is taxable solely on account of some connection other than
the execution, delivery or performance of this Agreement or the receipt of income hereunder, (b)
any branch profits taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender, any
withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign Lenders failure or
inability to comply with Section 2.12(e), except to the extent that such Foreign Lenders assignor
(if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower
with respect to such withholding tax pursuant to Section 2.12(a).
Exelon Acquisition Agreement
means the Agreement for Purchase of Membership
Interests dated as of June 25, 2004 by and between the Borrower and Exelon Services, Inc. relating
to the acquisition by the Borrower on or about June 25, 2004 of 100% of the outstanding membership
interests of Solutions Holdings, LLC, a Delaware limited liability company, from Exelon Services,
Inc.
- 8 -
Existing Debt
means (i) Indebtedness of the Credit Parties existing as of the
Effective Time which is being repaid in full with the proceeds of the Loans made by the Lenders at
the Effective Time and (ii) Indebtedness of the Credit Parties existing as of the Effective Time
which is permitted to remain outstanding after the Effective Time under Section 8.1 and is listed
on Schedule 8.1 hereto.
Existing Letters of Credit
shall have the meaning set forth in Section 2.4(a).
FAC Regulations
shall have the meaning set forth in Section 5.24.
FCPA
shall have the meaning set forth in Section 5.24.
Federal Funds Effective Rate
means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal
Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by Agent.
Fee Letter
means the letter agreement dated as of June 10, 2008 by and between the
Borrower and the Agent, describing certain fees to be paid by the Credit Parties in connection with
the credit facility established by this Agreement.
First Priority
means, with respect to any Lien purported to be created in any
Collateral pursuant to any Collateral Document, that such Lien is the most senior Lien (other than
Permitted Liens) to which such Collateral is subject.
Foreign Lender
means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
Foreign Office
means with respect to any Lender, an office of such Lender located
outside of the United States of America.
Foreign Subsidiaries
means each Subsidiary of the Borrower organized under the laws
of a jurisdiction other than the United States of America.
Funding Subsidiaries
means each of Ameresco Funding I, LLC, a Delaware limited
liability company; Ameresco Funding II, LLC, a Delaware limited liability company; Ameresco Funding
III, LLC, a Delaware limited liability company; Ameresco Funding IV, LLC, a Delaware limited
liability company; Speen Street Holdings I, LLC, a Delaware limited liability company; Speen Street
Holdings II, LLC, a Delaware limited liability company; Speen Street Holdings III, LLC, a Delaware
limited liability company; and Speen Street Holdings IV, LLC, a Delaware limited liability company.
GAAP
means generally accepted accounting principles in the United States of America.
Governmental Authority
means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority,
- 9 -
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
Guarantee
means a guarantee, an endorsement, a contingent agreement to purchase or
to furnish funds for the payment or maintenance of, or otherwise to be or become contingently
liable under or with respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other distributions upon the
stock or equity interests of any Person, or an agreement to purchase, sell or lease (as lessee or
lessor) property, products, materials, supplies or services primarily for the purpose of enabling a
debtor to make payment of such debtors obligations or an agreement to assure a creditor against
loss, and including, without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person, but excluding
endorsements for collection or deposit in the ordinary course of business. The terms
Guarantee
and
Guaranteed
used as a verb shall have a correlative meaning. The
amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount
of the primary obligations in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder).
Guarantors
means, collectively, each Subsidiary of the Borrower party hereto as a
guarantor at the Effective Time and each other Person which becomes a guarantor hereunder after the
Effective Time.
Guaranty
means Article 3 of this Agreement.
Hawaii Joint Venture
means the Investment by Ameresco Hawaii LLC, a Delaware limited
liability company, in 99% of the equity interests of Ameresco/ Pacific Energy JV, a Hawaii general
partnership for the purpose of engaging in the performance of work and services related to the
completion of the Hawaii Project.
Hawaii Project
means the development, implementation and construction of energy
performance measures and/or construction management services for the State of Hawaii or agencies or
instrumentalities thereof, including, without limitation, the Housing & Community Development
Corporation of Hawaii at one or more properties owned or operated by such entities.
Hazardous Materials
means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature, in each case
regulated or subject to regulation pursuant to any Environmental Law.
Hedging Agreement
means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.
Huntington Beach Receivables Financing
means the transaction pursuant to which (i)
the Borrower and Ameresco Huntington Beach sold certain accounts receivable to the Funding
Subsidiaries and (ii) the Funding Subsidiaries financed their acquisition of such accounts
receivable by issuing $12,279,000 principal amount of 4.875% Receivables-Backed Notes, Series
Boeing-2004-1 pursuant to that certain Series Boeing-2004-1 Supplemental Indenture dated as of
March 17, 2004 to Master Indenture Relating to Boeing Energy Service Projects dated as of March 17,
2004 between Ameresco Funding I, LLC and Wells Fargo Northwest, National Association as trustee.
- 10 -
Inactive Subsidiaries
means each of the Subsidiaries of the Borrower designated by
the Borrower as an inactive subsidiary on
Schedule 5.13
attached hereto as of the Effective
Time and from time to time after the Effective Time.
Indebtedness
means, for any Person, without duplication: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, advance, the issuance and
sale of debt securities or the sale of Property to another Person subject to an understanding or
agreement, contingent or otherwise, to repurchase such Property from such Person); (b) obligations
of such Person to pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other than for borrowed money) arising, and accrued expenses and
deferred taxes incurred and paid, in the ordinary course of business; (c) Capital Lease Obligations
of such Person; (d) obligations of such Person in respect of Hedging Agreements; and (e)
obligations of such Person in respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for the account of such Person. The
Indebtedness of any Person shall include, without duplication, the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Persons ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
Indemnified Taxes
means all Taxes other than (a) Excluded Taxes and Other Taxes and
(b) amounts constituting penalties or interest imposed with respect to Excluded Taxes or Other
Taxes.
ISP
means, with respect to any Letter of Credit, the International Standby
Practices 1998 published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).
Issuer Documents
means, with respect to any Letter of Credit, the LC Application and
any other document, agreement and instrument entered into by the Issuing Lender and the Borrower or
in favor of the Issuing Lender and relating to such Letter of Credit.
Intercompany Indebtedness
has the meaning assigned to such term in Section 11.9.
Interest Election Request
means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.3.
Interest Expense
means, for any period, the sum, without duplication, for the Core
Ameresco Companies (determined on a consolidated basis without duplication in accordance with
GAAP), of the following: (a) all interest in respect of Indebtedness accrued during such period
(whether or not actually paid during such period), but excluding capitalized debt acquisition costs
(including fees and expenses related to this Agreement) and interest that by its terms is paid in
kind
plus
(b) the net amounts payable (or minus the net amounts receivable) in respect of
Hedging Agreements accrued during such period (whether or not actually paid or received during such
period) excluding reimbursement of legal fees and other similar transaction costs and excluding
payments required by reason of the early termination of Hedging Agreements in effect on the date
hereof
plus
(c) all fees, including letter of credit fees and expenses, (but excluding
reimbursement of legal fees) incurred hereunder during such period.
Interest Period
means with respect to any LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as the Borrower may elect;
provided
, that
(i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) any
- 11 -
Interest Period that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing. Notwithstanding the foregoing,
(x) if any Interest Period for any Revolving Credit Borrowing would otherwise
end after the Revolving Credit Maturity Date, such Interest Period shall end on the
Revolving Credit Maturity Date, and
(y) notwithstanding the foregoing clause (x), no Interest Period shall have a
duration of less than one month and, if the Interest Period for any LIBOR Loan would
otherwise be a shorter period, such Loan shall not be available hereunder as a LIBOR
Loan for such period.
Investment
means, for any Person: (a) the acquisition (whether for cash, Property,
services or securities or otherwise) of capital stock, bonds, notes, debentures, partnership,
limited liability company or other ownership interests or other securities of any other Person or
any agreement to make any such acquisition (including, without limitation, any short sale or any
sale of any securities at a time when such securities are not owned by the Person entering into
such short sale); (b) the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of Property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such Property to such Person, but
excluding any such advance, loan or extension of credit representing the purchase price of
inventory or supplies sold by such Person in the ordinary course of business provided that in no
event shall the term of any such inventory or supply advance, loan or extension of credit exceed
270 days); or (c) the entering into of any Guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of any other Person and (without duplication) any
amount committed to be advanced, loaned or extended to such Person. Notwithstanding the foregoing,
Capital Expenditures shall not be deemed
Investments
for purposes hereof.
IP Collateral
means, collectively, the Collateral relating to intellectual property
rights of the Credit Parties hereunder or under any other Loan Document.
Issuer Documents
means with respect to any Letter of Credit, the L/C Application and
any other document, agreement or instrument entered into by the Issuing Lender and the Borrower (or
any Subsidiary) or in favor of the Issuing Lender and relating to such Letter of Credit.
Issuing Lender
means Bank of America or any other Lender designated by the Agent in
its sole discretion, in each case, in its capacity as an issuer of Letters of Credit hereunder.
Landlords Waiver and Consent
means, with respect to any Leasehold Property, a
letter, certificate or other instrument in writing from the lessor under the related lease, in form
approved by the Agent in its sole discretion.
LC Advance
means, with respect to each Lender, such Lenders funding of its
participation in any LC Disbursement in accordance with its Applicable Percentage.
LC Application
means an application and agreement for the issuance or amendment of a
Letter of Credit in the form from time to time in use by the Issuing Lender.
- 12 -
LC Credit Extension
means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.
LC Deficiency Amount
shall have the meaning set forth in Section 2.8(c).
LC Disbursement
means a payment made by the Issuing Lender pursuant to a Letter of
Credit.
LC Expiration Date
means the day that is thirty days prior to the Revolving Credit
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).
Leasehold Property
means any leasehold interest of any Credit Party as lessee under
any lease of real property, other than any such leasehold interest designated from time to time by
the Agent in its sole discretion as not being required to be included in the Collateral and not
being of material importance to the business or operations of the Credit Parties.
Lenders
means the Persons listed on
Schedule 2.1
(including, without
limitation, the Issuing Lender and the Swing Loan Lender) and any other Person that shall have
become a party hereto pursuant to an Assignment and Acceptance, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Acceptance.
Letter of Credit
means any letter of credit issued on a standby basis or in support
of trade obligations of the Credit Parties pursuant to this Agreement, including, without
limitation, any Existing Letter of Credit.
LIBOR
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Eurodollar Rate.
Lien
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing), other than an operating lease, relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with respect to such
securities.
Loan Documents
means this Agreement, the Revolving Credit Notes, the Collateral
Documents, the Fee Letter, each Issuer Document, the Subordination Agreement and any other
instruments or documents delivered or to be delivered from time to time pursuant to this Agreement,
as the same may be supplemented and amended from time to time in accordance with their respective
terms.
Loans
means the Revolving Loans and the Swing Loans.
Material Adverse Effect
means, any event, circumstance, happening or condition,
which, in the Agents discretion, might reasonably be expected to result in a material adverse
effect on (a) the business, assets, financial condition of the Credit Parties taken as a whole, (b)
the ability of any Credit Party to pay or perform any of its obligations under this Agreement or
the other Loan Documents or (c) any of the rights of or benefits available to the Lenders under
this Agreement and the other Loan Documents.
Material Canadian Subsidiary
means any Canadian Subsidiary having assets with a
total book value of greater than or equal to 10% of the total book value of all assets of the Core
Ameresco Companies on a consolidated basis.
- 13 -
Material Indebtedness
means Indebtedness (other than the Loans or Letters of
Credit), including, without limitation, obligations in respect of one or more Hedging Agreements,
in an aggregate principal amount exceeding $1,000,000. For purposes of determining Material
Indebtedness, the principal amount of the obligations of any Person in respect of a Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that such Person would be required to pay if such Hedging Agreement were terminated at
such time.
Material Leasehold Property
means a Leasehold Property reasonably determined by the
Agent to be of material value as Collateral or of material importance to the operations of the
Credit Parties (taken as a whole).
Material Owned Property
means any real property owned by any Credit Party that is
reasonably determined by the Agent to be of material value as Collateral or of material importance
to the operations of the Credit Parties (taken as a whole) and listed on
Schedule 1.1
hereto.
Material Rental Obligations
means obligations of the Credit Parties to pay rent
under any one or more operating leases with respect to any real or personal property that is
material to the business of the Credit Parties (taken as a whole).
Mortgage
means a security instrument (whether designated as a deed of trust or a
mortgage, leasehold mortgage, assignment of leases and rents or by any similar title) executed and
delivered by any Credit Party in such form as may be approved by the Agent in its sole and
reasonable discretion, in each case with such changes thereto as may be recommended by the Agents
local counsel based on local laws or customary local practices, and (b) at the Agents option, in
the case of an Additional Mortgaged Property, an amendment to an existing Mortgage, in form
satisfactory to the Agent, adding such Additional Mortgaged Property to the Real Property Assets
encumbered by such existing Mortgage, in either cases as such security instrument or amendment may
be amended, supplemented or otherwise modified from time to time.
Multiemployer Plan
means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
Net Cash Payments
means,
(a) with respect to any Casualty Event, the aggregate amount of cash proceeds of
insurance, condemnation awards and other compensation received by the Credit Parties in
respect of such Casualty Event net of (i) reasonable expenses incurred by the Credit Parties
in connection therewith and (ii) contractually required repayments of Indebtedness to the
extent secured by a Lien on such property and (iii) any income and transfer taxes payable by
the Credit Parties in respect of such Casualty Event;
(b) with respect to any Disposition, the aggregate amount of all cash payments received
by the Credit Parties directly or indirectly in connection with such Disposition, whether at
the time of such Disposition or after such Disposition under deferred payment arrangements
or Investments entered into or received in connection with such Disposition, net of (i) the
amount of any legal, title, transfer and recording tax expenses, commissions and other fees
and expenses payable by the Credit Parties in connection therewith, (ii) any Federal, state
and local income or other Taxes estimated to be payable by the Credit Parties as a result
thereof, (iii) any repayments by the Credit Parties of Indebtedness to the extent that such
Indebtedness is secured by a Lien on the property that is the subject of such Disposition
and the transferee of (or holder of a Lien on) such property requires that such Indebtedness
be repaid as a condition to the purchase of such
- 14 -
property, and (iv) any repayments by the Credit Parties to minority stockholders if and
to the extent permitted hereby; and
(c) with respect to any incurrence of Indebtedness, the aggregate amount of all cash
proceeds received by the Credit Parties therefrom less all legal, underwriting,
registration, marketing, filing and similar fees and expenses incurred in connection
therewith.
Non-Core Energy Project
means (i) any Renewable Energy Project and (ii) any other
small scale energy infrastructure project conducted by a Non-Core Energy Subsidiary other than
projects of the type conducted by the Core Ameresco Companies as of the Restatement Date.
Non-Core Energy Project Financing
means a credit facility entered into by one or
more Non-Core Energy Subsidiaries to finance the construction of one or more Non-Core Energy
Projects.
Non-Core Energy Subsidiary
means (i) Ameresco Huntington Beach, (ii) any Renewable
Energy Subsidiary and (ii) any other direct or indirect subsidiary of the Borrower formed for the
purpose of constructing or operating any Non-Core Energy Project.
Obligations
means (a) the aggregate outstanding principal balance of and all
interest on the Loans made by the Lenders to the Borrower (including any interest accruing after
the commencement of any proceeding by or against the Borrower under the federal bankruptcy laws, as
now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, and any other interest that would have accrued but for the commencement of such
proceeding, whether or not any such interest is allowed as a claim enforceable against the Borrower
in any such proceeding), (b) all debts, liabilities, obligations, covenants and duties of the
Borrower or any Credit Party with respect to any Loan or Letter of Credit and (c) all Bank Product
Obligations and all fees, costs, charges, expenses and other obligations from time to time owing to
the Lenders, the Issuing Lender, or the Agent by the Credit Parties hereunder or under any other
Loan Document or in respect of any Hedging Agreement, cash management agreement, operating or
deposit account or other banking product from time to time made available to the Credit Parties by
the Agent, any affiliate of the Agent, the Issuing Lender, or any Lender.
OFAC Regulations
shall have the meaning set forth in Section 5.23.
Other Taxes
means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement and
the other Loan Documents,
provided
that there shall be excluded from Other Taxes all
Excluded Taxes.
Patents
means all patents issued or assigned to and all patent applications made by
the Credit Parties and, to the extent that the grant of a security interest does not cause a breach
or termination thereof, all exclusive and nonexclusive licenses to the Credit Parties from third
parties or rights to use patents owned by such third parties, including, without limitation, the
patents, patent applications and licenses listed on
Schedule 5.5
hereto, along with any and
all (a) inventions and improvements described and claimed therein, (b) reissues, divisions,
continuations, extensions and continuations-in-part thereof, (c) income, royalties, damages, claims
and payments now and hereafter due and/or payable under and with respect thereto, including,
without limitation, damages and payments for past or future infringements thereof, (d) rights to
sue for past, present and future infringements thereof, and (e) any other rights corresponding
thereto throughout the world.
Patriot Act
shall have the meaning set forth in Section 11.18.
- 15 -
Payment Amount
shall have the meaning set forth in Section 2.8(c).
Pension Plan
means any Plan that is a defined benefit pension plan subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect
of which any Credit Party or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA.
Permitted Acquisitions
shall have the meaning set forth in Section 8.4. Permitted
Investments means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating obtainable from Standard
and Poors Ratings Service or from Moodys Investors Service, Inc.;
(c) investments in certificates of deposit, bankers acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $250,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria described in clause (c) above;
(e) advances, loans and extensions of credit to any director, officer or employee of the
Credit Parties, if the aggregate outstanding amount of all such advances, loans and extensions of
credit (excluding travel advances in the ordinary course of business) does not at any time exceed
$750,000; and
(f) investments in money market mutual funds that are rated AAA by Standard & Poors Rating
Service.
Permitted Liens
has the meaning set forth in Section 8.2.
Person
means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
Plan
means any employee benefit plan within the meaning of Section 3(3) of ERISA in
which any Credit Party or any ERISA Affiliate is an employer as defined in Section 3(5) of ERISA,
including, but not limited to, any Pension Plan or Multiemployer Plan.
Platform
has the meaning set forth in Section 7.1.
Pledge Agreement
means the Pledge Agreement originally dated as of December 29, 2004
as amended, modified and supplemented from time to time, as amended and restated by that certain
Amended and Restated Pledge Agreement in the form of
Exhibit E
hereto by and between the
Credit Parties and the Agent.
- 16 -
Post-Default Rate
means, a rate per annum equal to the Base Rate
plus
the
Applicable Margin plus two percent (2%).
Prior Credit Agreement
has the meaning assigned to such term in the introductory
paragraph hereto.
Property
means any interest of any kind in property or assets, whether real,
personal or mixed, and whether tangible or intangible.
Proprietary Rights
has the meaning assigned to such term in Section 5.5(b).
PTO
means the United States Patent and Trademark Office or any successor or
substitute office in which filings are necessary or, in the opinion of the Agent, desirable in
order to create or perfect Liens on any IP Collateral.
Quarterly Date
means the last day of any fiscal quarter of the Credit Parties.
Real Property Asset
means, at any time of determination, any and all real property
owned or leased by the Credit Parties.
Refunded Swing Loans
has the meaning assigned to such term in Section 2.6.
Register has the meaning assigned to such term in Section 11.4.
Registered Proprietary Rights
has the meaning assigned to such term in Section
5.5(c).
Reimbursement Obligation
has the meaning assigned to such term in Section 2.4(c)(i).
Related Parties
means, with respect to any specified Person, such Persons
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Persons Affiliates.
Renewable Energy Project
means a project conducted by a Renewable Energy Subsidiary
for (i) the construction and operation of a facility to process methane gas from a landfill site
and/ or convert methane gas, sunlight, wind or biomass into useable energy and (ii) the sale of
such methane gas and/ or energy produced from methane gas, sunlight, wind or biomass to one or more
customers.
Renewable Energy Project Guaranty
means in connection with any Renewable Energy
Project, (a) any Guarantee (other than a Construction Completion and Cost Overrun Guaranty) by the
Borrower of the obligations of the Renewable Energy Subsidiary in connection with such Renewable
Energy Project and (b) any indemnification by or from the Borrower of the owner of a landfill or
other property used for such Renewable Energy Project or of a third party purchaser of landfill gas
or energy produced from landfill gas, sunlight, wind or biomass in connection with such Renewable
Energy Project;
provided
, however, that no Renewable Energy Project Guaranty shall
guarantee the Indebtedness of any Person.
Renewable Energy Project Guaranty Liability
means, in connection with any Renewable
Energy Project Guaranty, any liability required to be accrued on the consolidated balance sheet of
the Core Ameresco Companies in accordance with GAAP.
Renewable Energy Subsidiaries
means (i) each of the Subsidiaries of the Borrower
designated by the Borrower as a renewable energy subsidiary on
Schedule 5.13
attached
hereto as of the Effective Date and (ii) any other direct or indirect Subsidiary of the Borrower
formed for the purpose of (x) constructing and/or operating any project for the construction and
operation of a facility to process
- 17 -
methane gas from a landfill site and/or convert methane gas, sunlight, wind or biomass into
useable energy and/ or (y) selling such methane gas and/or energy produced from methane gas,
sunlight, wind or biomass to one or more customers.
Required Lenders
means, at any time when there is more than one Lender, at least two
Lenders having Loans representing at least 66-2/3% of the sum of the aggregate Loans at such time,
or at any time when there is only one Lender, such Lender.
Restatement Date
means the date of the amendment and restatement of the Prior Credit
Agreement, on which date the Effective Time shall occur.
Restricted Junior Payment
means (i) any dividend or other distribution, direct or
indirect, on account of any shares of any class of stock of, or other equity interest in, any
Credit Party or any Subsidiary now or hereafter outstanding, except a dividend payable solely in
shares of stock or other equity interests, (ii) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of
stock of, or other equity interest in, any Credit Party or any Subsidiary now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of stock of, or other equity
interest in, any Credit Party or any Subsidiary, (iv) any payment or prepayment of principal of,
premium, if any, or interest on, or redemption purchase, retirement, defeasance (including economic
or legal defeasance), sinking fund or similar payment with respect to, any Subordinated
Indebtedness, and (v) any payment made to any Affiliates of any Credit Party or any Subsidiary in
respect of management, consulting or other similar services provided to any Credit Party or any
Subsidiary.
Restrictive Agreements
has the meaning assigned to such term in Section 5.13(b).
Revolving Credit Availability Period
means the period from and including the
Effective Time to but excluding the earlier of (a) the Revolving Credit Maturity Date and (b) the
date of termination of the Revolving Credit Commitments, as terminated by the Borrower pursuant to
Section 2.7 or by the Agent pursuant to Section 9.2.
Revolving Credit Commitment
means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder,
as such commitment may be (a) reduced from time to time pursuant to Sections 2.7 and 2.9, or
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 11.4. The initial maximum amount of each Lenders Revolving Credit Commitment is set forth
on Schedule 2.1, or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Revolving Credit Commitment, as applicable. The aggregate original maximum amount of
the Revolving Credit Commitments is equal to $50,000,000.
Revolving Credit Exposure
means , with respect to any Revolving Credit Lender at any
time, the sum of the outstanding principal amount of such Lenders Revolving Loans at such time and
such Lenders Applicable Percentage of the Total LC Exposure at such time, and in the case of the
Swing Loan Lender, the aggregate outstanding principal amount of all Swing Loans which have not
been refunded pursuant to Section 2.6(d).
Revolving Credit Lender
means (a) initially, a Lender that has a Revolving Credit
Commitment set forth opposite its name on
Schedule 2.1
and (b) thereafter, the Lenders from
time to time holding Revolving Loans and Revolving Credit Commitments, after giving effect to any
assignments thereof permitted by Section 11.4.
- 18 -
Revolving Loan
means a Loan made pursuant to Section 2.1 (a) that utilizes the
Revolving Credit Commitments.
Revolving Credit Maturity Date
means June 30, 2011.
Revolving Credit Notes
means the promissory notes, substantially in the form of
Exhibit A
annexed hereto, issued by the Borrower in favor of the Revolving Credit Lenders.
Sakellaris Group
means George Sakellaris, Mr. Sakellaris family members and trusts
established for the benefit of Mr. Sakellaris family members.
Settlement Date
has the meaning assigned to such term in subsection 2.5(d).
Settlement Loan
has the meaning assigned to such term in subsection 2.5(e).
SL Deficiency Amount
has the meaning assigned to such term in subsection 2.6(c).
Special Counsel
means Edwards Angell Palmer & Dodge LLP, in its capacity as special
counsel to Bank of America, N.A., as Agent of the credit facilities contemplated hereby.
Special Purpose Subsidiaries
means the Hawaii Joint Venture, the Non-Core Energy
Subsidiaries and the Funding Subsidiaries.
Subordinated Debt Documents
means all instruments, agreements and other documents
executed and delivered by the Credit Parties in connection with Subordinated Indebtedness.
Subordinated Indebtedness
means (a) the Subordinated Note and (b) any other
Indebtedness of the Core Ameresco Companies incurred after the Restatement Date with the consent of
the Agent that by its terms (or by the terms of the instrument under which it is outstanding and to
which appropriate reference is made in the instrument evidencing such Subordinated Indebtedness) is
made subordinate and junior in right of payment to the Loans and to the other Obligations of the
Credit Parties by provisions in form and substance reasonably satisfactory to the Agent and Special
Counsel.
Subordinated Note
means the Promissory Note issued by the Borrower to George
Sakellaris on May 17, 2000 in the original principal amount of $2,998,750.00, as amended from time
to time.
Subordination Agreement
means the Subordination Agreement dated as of December 29,
2004 (as amended and confirmed as of the Restatement Date), among George Sakellaris, the Credit
Parties and the Agent, as such agreement may be further amended, supplemented or otherwise modified
from time to time from and after the Restatement Date.
Subsidiary
means, with respect to any Person (the
parent
) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parents consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the ordinary
voting power or, in the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled (as described in the first sentence of the definition of Control), by the parent
and/or one or more subsidiaries of the parent. References herein to
- 19 -
Subsidiaries
shall, unless the context requires otherwise, be deemed to be
references to Subsidiaries of the Borrower.
Swing Loan
has the meaning specified in Section 2.6.
Swing Loan Commitment
means the commitment of the Swing Loan Lender to make Swing
Loans, as such commitment may be (a) reduced from time to time pursuant to Sections 2.7 and 2.9 and
(b) reduced or increased from time to time pursuant to assignments by the Swing Loan Lender
pursuant to Section 11.4. The original amount of the Swing Loan Commitment is equal to $3,000,000.
Swing Loan Lender
means Bank of America, in its capacity as the Swing Loan Lender,
together with its successors and assigns in such capacity.
Swing Loan Note
means the promissory note, substantially in the form of
Exhibit
A-2
, issued by the Borrower in favor of the Swing Loan Lender to evidence the Swing Loans.
Swing Loan Request
has the meaning assigned to such term in Section 2.6.
Tangible Capital Base
means, at any time an amount (determined on a consolidated
basis without duplication in accordance with GAAP) equal to (a) the sum of (i) the book net worth
of the Core Ameresco Companies on a consolidated basis,
plus
(ii) the outstanding principal
amount of Subordinated Indebtedness, if any,
minus
(b) the total book value of all assets
of the Core Ameresco Companies on a consolidated basis which would be treated as intangible assets
under GAAP, including without limitation, such items as goodwill, customer lists, Patents,
Copyrights and Trademarks, and rights (including rights under licenses) with respect to the
foregoing,
minus
(c) all accounts receivable, notes receivable and other amounts due and
owing to any Core Ameresco Company from any Affiliate of a Core Ameresco Company,
minus
(d)
all Investments in Affiliates of any Core Ameresco Company,
minus
(e) any Renewable Energy
Project Guaranty Liabilities.
Taxes
means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
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, including (i) all Indebtedness described in clauses (a), (b) and (c) of the
definition of Indebtedness set forth herein 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.
Total LC Exposure
means, at any time, the sum of (a) 100% of the aggregate undrawn
amount of all outstanding standby and documentary Letters of Credit at such time
plus
(b)
the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of
the Borrower at such time.
Total Voting Power
means, with respect to any Person, the total number of votes
which holders of securities having the ordinary power to vote, in the absence of contingencies, are
entitled to cast in the election of directors of such Person.
Trademarks
means all trademarks (including service marks), federal and state
trademark registrations and applications made by the Credit Parties, common law trademarks and
trade names owned by or assigned to the Credit Parties, all registrations and applications for the
foregoing and all exclusive and nonexclusive licenses from third parties of the right to use
trademarks of such third parties,
- 20 -
including, without limitation, the registrations, applications, unregistered trademarks,
service marks and licenses listed on
Schedule 5.5
hereto, along with any and all (a)
renewals thereof, (b) income, royalties, damages and payments now and hereafter due and/or payable
with respect thereto, including, without limitation, damages, claims and payments for past or
future infringements thereof, (c) rights to sue for past, present and future infringements thereof,
and (d) foreign trademarks, trademark registrations, and trade name applications for any thereof
and any other rights corresponding thereto throughout the world.
Type
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Eurodollar Rate or the Base Rate.
UCC
means the Uniform Commercial Code (or any similar or equivalent legislation) as
in effect in any applicable jurisdiction.
Unreimbursed Amount
has the meaning set forth in Section 2.4(c)(i).
U.S. Dollars
or
$
refers to lawful money of the United States of America.
Wholly Owned Subsidiary
means, with respect to any Person at any date, any
corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing 100% of the equity or ordinary voting power
(other than directors qualifying shares) or, in the case of a partnership, 100% of the general
partnership interests are, as of such date, directly or indirectly owned, controlled or held by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such Person and one or
more Wholly Owned Subsidiaries of such Person.
Withdrawal Liability
means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
1.2
Terms Generally
. The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words include, includes and
including shall be deemed to be followed by the phrase without limitation. The word will
shall be construed to have the same meaning and effect as the word shall. Unless the context
requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Persons successors and assigns, (c) the words herein,
hereof and hereunder, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words asset and property shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
1.3
Accounting Terms; GAAP
. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in effect from time
to time; provided that, if the Borrower notifies the Agent that the Borrower requests an amendment
to any provision hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the Agent notifies the
Borrower that the
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Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn or such
provision shall have been amended in accordance herewith.
1.4
Joint and Several Obligations; Designated Financial Officers
.
(a) All Obligations of the Credit Parties hereunder shall be joint and several. Any notice,
request, waiver, consent or other action made, given or taken by any Credit Party shall bind all
Credit Parties.
(b) Each Credit Party hereby authorizes each of the Designated Financial Officers listed in
Schedule 1.4
hereto to act as agent for each Credit Party and to execute and deliver on
behalf of each Credit Party such notices, requests, waivers, consents, certificates and other
documents, and to take any and all actions required or permitted to be delivered or taken by any
Credit Party hereunder. The Borrower may replace any of the Designated Financial Officers listed
in
Schedule 1.4
hereto or add any additional Designated Financial Officers by delivering
written notice to the Agent specifying the names of each new Designated Financial Officer and the
offices held by each such Person. Each Credit Party hereby agrees that any such notices, requests,
waivers, consents, certificates and other documents executed, delivered or sent by any Designated
Financial Officer and any such actions taken by any Designated Financial Officer shall bind each
Credit Party.
1.5
Letter of Credit Amounts
. Unless otherwise specified herein the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided, however, that with respect to any Letter of Credit that, by its terms or the
terms of any Issuer Document related thereto, provides for one or more automatic increases or
decreases, as the case may be, in the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all
such increases or decreases, as the case may be, whether or not such maximum stated amount is in
effect at such time.
ARTICLE II
The Credits
2.1
Revolving Loans
.
(a)
Revolving Credit Commitments
. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender agrees to make Revolving Loans to the Borrower from time to
time during the Revolving Credit Availability Period in an aggregate principal amount that will not
result in such Lenders Revolving Credit Exposure exceeding such Lenders Revolving Credit
Commitment at such time;
provided
that the total Revolving Credit Exposure (after giving
effect to any requested Revolving Credit Borrowing and any repayment of Swing Loans effected by any
requested Revolving Credit Borrowing) shall not at any time exceed the total Revolving Credit
Commitments of all Revolving Credit Lenders at such time. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
(b)
Funding of Revolving Loans
.
(i) At all times when the AutoBorrow Agreement is in effect, subject to the
satisfaction of the conditions set forth in Section 6.2 with respect to the funding of such
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Revolving Loan, each Revolving Loan shall be made in accordance with the terms of the
AutoBorrow Agreement;
provided
that (x) the aggregate amount of Revolving Loans made
in accordance with the terms of the AutoBorrow Agreement shall not exceed $10,000,000 at any
time and (y) Revolving Loans made to finance the reimbursement of an LC Disbursement shall
be made in accordance with the terms of Section 2.1(b)(ii).
(ii) To request a Borrowing at any time following the termination of the AutoBorrow
Agreement, (except requests for Swing Loan Borrowings which are subject to Section 2.6(b)),
the Borrower shall notify the Agent of such request by telephone (i) in the case of a LIBOR
Borrowing, not later than 1:00 p.m., Boston, Massachusetts time, three Business Days before
the date of the proposed Borrowing or (ii) in the case of a Base Rate Borrowing not later
than 1:00 p.m., Boston, Massachusetts time, one Business Day before the date of the proposed
Borrowing;
provided
that any such notice of a Base Rate Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.4(c) may be given not later
than 11:00 a.m., Boston, Massachusetts time, on the date of the proposed Borrowing
provided
further
that the Borrower shall use Swing Loan Borrowings to
finance the reimbursement of an LC Disbursement except to the extent that such Borrowings
would cause the aggregate principal balance of all Swing Loans outstanding to exceed the
Swing Loan Commitment, in which case the Borrower may use Base Rate Revolving Credit
Borrowings to finance such reimbursement, but only to the extent of such excess. Each such
telephonic Advance Request shall be irrevocable and shall be confirmed promptly by hand
delivery, telecopy or electronic transmission to the Agent of a written Advance Request in
the form of
Exhibit B
hereto, setting forth all of the information required to be
set forth therein, and signed by a Designated Financial Officer of the Borrower. Promptly
following receipt of an Advance Request in compliance with this subsection 2.1(b), the Agent
shall advise each Lender of the details thereof and of the amount of such Lenders Revolving
Loan to be made as part of the requested Borrowing, and provided that no Default under
Section 9.1(a)(ii) or Event of Default shall have occurred and be continuing or shall result
therefrom, (i) in the case of a LIBOR Borrowing, on the date three Business Days after such
Advance Request is delivered to the Agent and (ii) in the case of a Base Rate Borrowing, on
the date one Business Day thereafter, such Advance Request is delivered to the Agent, the
Lenders shall make a Revolving Loan to the Borrower in accordance with the terms of Section
2.5 in an amount equal to the amount set forth in such Advance Request.
(c)
Interest on Revolving Loans
. Subject to Section 2.3 hereof, each Revolving Loan
made to the Borrower by the Lenders hereunder shall bear interest at a rate per annum equal to the
Base Rate plus the Applicable Margin;
provided
that all Revolving Loans made in accordance
with the AutoBorrow Agreement shall bear interest at a rate per annum equal to the Eurodollar Rate
applicable to Revolving Loans having an Interest Period of one month,
plus
the Applicable
Margin. Notwithstanding the foregoing, (i) all Revolving Loans which are not paid when due shall
automatically bear interest until paid in full at the Post-Default Rate, (ii) during the period
when any Event of Default of the type described in clauses (g), (h) or (i) of Section 9.1 shall
have occurred and be continuing, the principal of all Revolving Loans hereunder shall automatically
bear interest, after as well as before judgment, at the Post-Default Rate, (iii) if there shall
occur and be continuing any Event of Default (other than an Event of Default of the type described
in clauses (g), (h) or (i) of Section 9.1), following written notice delivered to the Borrower from
the Agent at the request of the Required Lenders, the principal of all Revolving Loans hereunder
shall bear interest, after as well as before judgment, at the Post-Default Rate during the period
beginning on the date such Event of Default first occurred, and ending on the date such Event of
Default is cured or waived. Except as otherwise provided in Section 2.3(b) hereof, accrued
interest on each Revolving Loan shall be payable in arrears on the first day of each month;
provided
that interest accrued at the Post-Default Rate shall be payable on demand, and all
accrued interest on Revolving Loans shall be payable upon expiration of the Revolving Credit
Availability Period. All interest hereunder shall be
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computed on the basis of a year of 360 days, and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The applicable Base
Rate shall be determined by the Agent, and such determination shall be conclusive absent manifest
error.
(d)
Repayment of Revolving Loans
. The Borrower unconditionally promises to pay to the
Agent for the account of each Revolving Credit Lender the then unpaid principal amount of such
Lenders Revolving Loans on the Revolving Credit Maturity Date. In addition, if following any
reduction in the Revolving Credit Commitments or at any other time the Revolving Credit Exposure
shall exceed the Revolving Credit Commitment at such time, the Borrower shall first, repay Swing
Loans, second, repay Revolving Loans, and third, to the extent necessary, provide cash collateral
for Total LC Exposure as specified in Section 2.4(h), in an aggregate amount equal to such excess.
In addition, at all times when the AutoBorrow Agreement is in effect, the Borrower shall repay
outstanding Revolving Loans in accordance with the terms of the AutoBorrow Agreement.
(e)
Loan Accounts
. Each Revolving Credit Lender shall maintain in accordance with its
usual practice an account evidencing the indebtedness of the Borrower to such Lender resulting from
each Revolving Loan made by such Lender, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder. The Agent shall maintain accounts in which it
shall record the amount of each Revolving Loan made hereunder, the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Revolving Credit
Lender hereunder and the amount of any sum received by the Agent hereunder for the account of the
Revolving Credit Lenders and each Revolving Credit Lenders share thereof. The entries made in the
account maintained by the Agent pursuant to this subsection 2.1(e) shall absent manifest error be
prima facie evidence of the existence and amounts of the obligations recorded therein;
provided
that the failure of the Agent to maintain such account or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Revolving Loans in accordance
with the terms of this Agreement.
(f)
Revolving Credit Notes
. Prior to the Restatement Date, the Borrower shall
prepare, execute and deliver to each Revolving Credit Lender a Revolving Credit Note in the
principal amount of such Lenders Revolving Credit Commitment. Thereafter, the Revolving Loans of
each Revolving Credit Lender evidenced by such Revolving Credit Note and interest thereon shall at
all times (including after assignment pursuant to Section 11.4) be represented by one or more
promissory notes in such form payable to the order of the payee named therein.
2.2 [Reserved.]
2.3
LIBOR Borrowings.
(a)
General
. Each Revolving Loan initially shall be a Base Rate Loan. Thereafter,
the Borrower may elect to convert any portion of the outstanding Revolving Loans to a LIBOR
Borrowing. The Borrower may elect different options for continuations and conversions with respect
to different portions of the affected Borrowing, except with respect to Swing Loans, in which case
the Loans comprising each such portion shall be considered a separate Borrowing. The Borrower
shall not be permitted to select any Interest Period for any LIBOR Borrowing that ends after the
Revolving Credit Maturity Date.
(b)
Interest on LIBOR Borrowings
. Each LIBOR Borrowing shall bear interest during the
applicable Interest Period at a rate per annum equal to the Eurodollar Rate plus the Applicable
Margin. Notwithstanding the foregoing, (i) all LIBOR Borrowings which are not paid when due shall
automatically be converted into Base Rate Borrowings and shall bear interest until paid in full at
the Post-Default Rate, (ii) during the period when any Event of Default of the type described in
clauses (g), (h) or
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(i) of Section 9.1 shall have occurred and be continuing, all LIBOR Borrowings shall
automatically be converted into Base Rate Borrowings and shall bear interest, after as well as
before judgment, at the Post-Default Rate, (iii) if there shall occur and be continuing any Event
of Default (other than an Event of Default of the type described in clauses (g), (h) or (i) of
Section 9.1), following written notice delivered to the Borrower from the Agent at the request of
the Required Lenders, all LIBOR Borrowings shall automatically be converted into Base Rate
Borrowings and shall bear interest, after as well as before judgment, at the Post-Default Rate
during the period beginning on the date such Event of Default first occurred, and ending on the
date such Event of Default is cured or waived. Accrued interest on each LIBOR Borrowing shall be
payable in arrears on the last Business Day of the Interest Period applicable to such LIBOR
Borrowing;
provided
that (a) in the case of a LIBOR Borrowing with a Interest Period of
more than three months duration, accrued interest shall be due on the last Business Day of such
Interest Period and on the last Business Day of each three month period, and (b) interest accrued
at the Post-Default Rate shall be payable on demand. All interest hereunder shall be computed on
the basis of a year of 360 days, and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable Eurodollar Rate or
Eurodollar Base Rate shall be determined by the Agent, and such determination shall be conclusive
absent manifest error.
(c)
Procedure for Requesting LIBOR Borrowings
. To request that any portion of the
outstanding Revolving Loans be converted into a LIBOR Borrowing, or, to request that any LIBOR
Borrowing continue as a LIBOR Borrowing for an additional Interest Period, the Borrower shall
notify the Agent of such request by telephone (i) in the case of a LIBOR Borrowing, not later than
1:00 p.m., Boston, Massachusetts time, three Business Days before the date of the proposed
conversion or continuation of such Borrowing. Each such Interest Election Request made by the
Borrower shall be irrevocable and shall be confirmed promptly by hand delivery, telecopy or
electronic transmission to the Agent of a written Advance Request in the form of
Exhibit B
hereto, setting forth all of the information required to be set forth therein, and signed by a
Designated Financial Officer of the Borrower. No Swing Loan shall be converted from a Base Rate
Borrowing to a LIBOR Borrowing. Promptly following receipt of an Interest Election Request, the
Agent shall advise each affected Lender of the details thereof and of such Lenders portion of each
resulting Borrowing. Subject to the provisions of subsection 2.3(f) and provided that no Default
or Event of Default shall have occurred and be continuing and the Agent, at the request of the
Required Lenders shall have so notified the Borrower, upon receipt of an Interest Election Request,
the Lenders shall on the requested date of conversion or continuation (i) convert the Base Rate
Loan requested to be converted into a LIBOR Loan for the Interest Period set forth in such Interest
Election Request and/or (ii) continue the LIBOR Loan requested to be continued as a LIBOR Loan for
the additional Interest Period set forth in such Interest Election Request. Each Lender at its
option may make any LIBOR Loan by causing any domestic or foreign branch of any Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this Agreement.
(d)
Incomplete Interest Election Requests
. If any Interest Election Request is
incomplete in any respect, then such Interest Election Request shall be void and the Borrowing
which was the subject matter of such Interest Election Request shall continue as a Base Rate
Borrowing. If, with respect to any existing LIBOR Borrowing, the Borrower fails to deliver an
Interest Election Request to continue such LIBOR Borrowing at least three Business Days prior to
the expiration of the Interest Period for such existing LIBOR Borrowing, such LIBOR Borrowing shall
automatically convert to a Base Rate Borrowing at the expiration of such Interest Period.
(e)
Limit on LIBOR Borrowings
. At the commencement of each Interest Period for a
LIBOR Borrowing, such Borrowing shall be in an aggregate amount at least equal to $500,000 or any
greater multiple of $100,000. Borrowings of more than one Type may be outstanding at the same
time;
provided
that there shall not at any time be more than a total of seven (7) LIBOR
Borrowings outstanding.
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(f)
Alternate Rate of Interest
. If prior to the commencement of any Interest Period
for a LIBOR Borrowing, (i) the Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate or the Eurodollar Base Rate for such Interest Period, (ii) the Agent is advised by the
Required Revolving Credit Lenders that the Eurodollar Rate or the Eurodollar Base Rate for such
Interest Period will not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such LIBOR Borrowing, or (iii) if the Agent or any Lender shall
have determined in good faith that as a result of any Change in Law it is unlawful or impossible
for any Lender to make or maintain any LIBOR Borrowing; then in each case the Agent shall give
notice thereof to the Borrower and the affected Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Agent notifies the Borrower and such Lenders that the
circumstances giving rise to such notice no longer exist, any Interest Election Request submitted
by the Borrower shall be ineffective;
provided
that if as a result of a Change in Law the
Lenders are prohibited from maintaining any outstanding LIBOR Borrowing, upon notice from the
Agent, the Borrower shall immediately (A) convert such LIBOR Borrowing to a Base Rate Loan, or (B)
repay such LIBOR Borrowing in full, together with all interest accrued thereon and all fees and
other amounts payable to the Lenders hereunder (in either case, subject to the provisions of
subsection 2.3(g) of this Agreement with respect to redeployment costs).
(g)
Break Funding Payments
. In the event of (i) the payment of any principal of any
LIBOR Loan other than on the last day of the Interest Period applicable thereto (including as a
result of an Event of Default), (ii) the conversion of any LIBOR Loan other than on the last day of
the Interest Period applicable thereto, or (iii) the failure to borrow, convert, continue or prepay
any LIBOR Loan on the date specified in any notice delivered pursuant hereto (regardless of whether
such notice is permitted to be revocable and is revoked in accordance herewith), then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to
such event, as determined by such Lender in a manner consistent with its customs and practices. In
the event that any Lender is entitled to receive compensation pursuant to this subsection 2.3(g),
such Lender shall deliver a certificate to the Borrower setting forth the amount or amounts that
such Lender is entitled to receive, and the Borrower shall pay such Lender such amount or amounts
within three (3) days after receipt of such certificate.
2.4
Letters of Credit.
(a)
General
. Subject to the terms and conditions set forth herein, in addition to the
Revolving Loans provided for in Section 2.1 and the Swing Loans provided for in Section 2.6(a), the
Borrower may request the issuance of Letters of Credit for its own account by the Issuing Lender,
in a form reasonably acceptable to the Issuing Lender, at any time and from time to time during the
Revolving Credit Availability Period. Letters of Credit issued hereunder shall constitute
utilization of the Revolving Credit Commitments and, without limitation of the provisions of
Section 2.1 (a), in no event shall the Total LC Exposure at any time exceed $10,000,000. In the
event of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, the Issuing Lender relating to any Letter of Credit, the
terms and conditions of this Agreement shall control. Each of the letters of credit identified on
Schedule 2.4
(collectively, the
Existing Letters of Credit
) shall be deemed to
have been issued pursuant hereto, and from and after the Restatement Date shall be subject to and
governed by the terms and conditions hereof so long as they remain outstanding.
(b)
Procedures for Issuance, Amendment and Extension of Letters of Credit
.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the Issuing Lender (with a copy to the Agent) in the
form of an LC Application, appropriately completed and signed by a Designated Financial
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Officer of the Borrower. Such LC Application must be received by the Issuing Lender
and the Agent not later than 11:00 a.m. Boston, Massachusetts time at least two Business
Days (or such later date and time as the Agent and the Issuing Lender may agree in a
particular instance in their sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance of a Letter
of Credit, such LC Application shall specify in form and detail satisfactory to the Issuing
Lender: (A) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of
any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested
Letter of Credit; and (H) such other matters as the Issuing Lender may reasonably require.
In the case of a request for an amendment of any outstanding Letter of Credit, such LC
Application shall specify in form and detail reasonably satisfactory to the Issuing Lender
(A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which
shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the Issuing Lender may reasonably require. Additionally, the Borrower shall
furnish to the Issuing Lender and the Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as
the Issuing Lender or the Agent may require.
(ii) Promptly after receipt of any LC Application, the Issuing Lender will confirm with
the Agent (by telephone or in writing) that the Agent has received a copy of such LC
Application from the Borrower and, if not, the Issuing Lender will provide the Agent with a
copy thereof. Unless the Issuing Lender has received written notice from any Lender, the
Agent or any Loan Party, at least one Business Day prior to the requested date of issuance
or amendment of the applicable Letter of Credit, that one or more applicable conditions in
Article 6 shall not then be satisfied, then, subject to the terms and conditions hereof, the
Issuing Lender shall, on the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in each case in
accordance with the Issuing Lenders usual and customary business practices. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Lender a risk
participation in such Letter of Credit in an amount equal to the product of such Lenders
Applicable Percentage
multiplied by
the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the
Issuing Lender will also deliver to the Borrower and the Agent a true and complete copy of
such Letter of Credit or amendment.
(iv) If the Borrower so requests in any applicable LC Application, the Issuing Lender
may, in its sole and absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an
Auto-Extension Letter of Credit
);
provided
that any such Auto-Extension Letter of Credit must permit the Issuing
Lender to prevent any such extension at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the
Non-Extension Notice Date
) in each
such twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the Issuing Lender, the Borrower shall not be required to make
a specific request to the Issuing Lender for any such extension. Once an Auto-Extension
Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may
not require) the Issuing Lender to permit the extension of such Letter of Credit at any time
to
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an expiry date not later than the L/C Expiration Date;
provided
, however, that
the Issuing Lender shall not permit any such extension if (A) the Issuing Lender has
determined that it would not be permitted, or would have no obligation, at such time to
issue such Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the day that is
five Business Days before the Non-Extension Notice Date (1) from the Agent that the Required
Lenders have elected not to permit such extension or (2) from the Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the Issuing Lender not to permit such extension.
(c)
Drawings and Reimbursements; Funding of Participations
.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the Issuing Lender shall notify the Borrower and the
Agent thereof. Not later than 11:00 a.m. Boston, Massachusetts time on the date of any
payment by the Issuing Lender under a Letter of Credit (each such date, an
Honor
Date
), the Borrower shall reimburse the Issuing Lender through the Agent in an amount
equal to the amount of such drawing (each such obligation of the Borrower, a
Reimbursement Obligation
). If the Borrower fails to pay any Reimbursement
Obligation to the Issuing Lender by such time, the Agent shall promptly notify each Lender
of the Honor Date, the amount of the unreimbursed drawing (the
Unreimbursed
Amount
), and the amount of such Lenders Applicable Percentage thereof. In such event,
the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, but subject to
the amount of the unutilized portion of the Commitments and the conditions set forth in
Section 6.2 (other than the delivery of an Advance Request). Any notice given by the
Issuing Lender or the Agent pursuant to this Section 2.4(c)(i) may be given by telephone if
immediately confirmed in writing;
provided
that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.4(c)(i) make funds
available to the Agent for the account of the Issuing Lender in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. Boston,
Massachusetts time on the Business Day specified in such notice by the Agent, whereupon,
subject to the provisions of Section 2.4(c)(iii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Agent
shall remit the funds so received to the Issuing Lender.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 6.2 cannot be
satisfied or for any other reason, the Borrower shall be deemed to have incurred from the
Issuing Lender an LC Disbursement in the amount of the Unreimbursed Amount that is not so
refinanced, which LC Disbursement shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each Lenders payment
to the Agent for the account of the Issuing Lender pursuant to Section 2.4(c)(ii) shall be
deemed payment in respect of its participation in such LC Disbursement and shall constitute
an LC Advance from such Lender in satisfaction of its participation obligation under this
Section 2.4.
(iv) Until each Lender funds its Base Rate Loan or LC Advance pursuant to this Section
2.4(c) to reimburse the Issuing Lender for any amount drawn under any Letter of
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Credit, interest in respect of such Lenders Applicable Percentage of such amount shall
be solely for the account of the Issuing Lender.
(v) Each Lenders obligation to make Base Rate Loans or LC Advances to reimburse the
Issuing Lender for amounts drawn under Letters of Credit, as contemplated by this Section
2.4(c), shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender
may have against the Issuing Lender, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided, however, that
each Lenders obligation to make Committed Loans pursuant to this Section 2.4(c) is subject
to the conditions set forth in Section 6,2 (other than delivery by the Borrower of an
Advance Request). No such making of an LC Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Lender for the amount of any payment
made by the Issuing Lender under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the Agent for the account of the Issuing
Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.4(c) by the time specified in Section 2.4(c)(ii), the Issuing Lender shall be
entitled to recover from such Lender (acting through the Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the Issuing Lender at a rate per annum equal to the
greater of the Federal Funds Effective Rate and a rate determined by the Issuing Lender in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Issuing Lender in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lenders Loan included in the relevant Borrowing or LC
Advance in respect of the relevant LC Disbursement, as the case may be. A certificate of
the Issuing Lender submitted to any Lender (through the Agent) with respect to any amounts
owing under this clause (vi) shall be conclusive absent manifest error.
(d)
Repayment of Participations
.
(i) At any time after the Issuing Lender has made a payment under any Letter of Credit
and has received from any Lender such Lenders LC Advance in respect of such payment in
accordance with Section 2.4(c), if the Agent receives for the account of the Issuing Lender
any payment in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of cash collateral applied
thereto by the Agent), the Agent will distribute to such Lender its Applicable Percentage
thereof in the same funds as those received by the Agent.
(ii) If any payment received by the Agent for the account of the Issuing Lender
pursuant to Section 2.4(c)(i) is required to be returned under any of the circumstances
described in Section 11.15 (including pursuant to any settlement entered into by the Issuing
Lender in its discretion), each Lender shall pay to the Agent for the account of the Issuing
Lender its Applicable Percentage thereof on demand of the Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Effective Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
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(e)
Obligations Absolute
. The obligation of the Borrower to reimburse the Issuing
Lender for Reimbursement Obligations and to repay each LC Disbursement shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the Issuing Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the Issuing Lender under such Letter of Credit against presentation
of a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the Issuing Lender under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary, except any circumstance or
happening caused by the gross negligence or willful misconduct of the Issuing Lender.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that
is delivered to it in accordance with the procedures set forth herein and, in the event of any
claim of noncompliance with the Borrowers instructions or other irregularity, the Borrower will
promptly notify the Issuing Lender. The Borrower shall be deemed to have waived any such claim
against the Issuing Lender and its correspondents unless such notice is given as aforesaid.
(f)
Role of Issuing Lender
. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the Issuing Lender shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None of the Issuing Lender,
the Agent, any of their respective Related Parties nor any correspondent, participant or assignee
of the Issuing Lender shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to
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its use of any Letter of Credit;
provided
, however, that this assumption is not
intended to, and shall not, preclude the Borrowers pursuing such rights and remedies as it may
have against the beneficiary or transferee at law or under any other agreement. None of the
Issuing Lender, the Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the Issuing Lender, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.4(e);
provided
, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the
Issuing Lender, and the Issuing Lender may be liable to the Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which were caused by the Issuing Lenders willful misconduct or gross negligence or the
Issuing Lenders willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the
Issuing Lender may accept documents that appear on their face to be in order, without
responsibility for further investigation, and the Issuing Lender shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.
(g)
Cash Collateral
. If either (i) an Event of Default shall occur and be continuing
and the Borrower receives notice from the Agent or the Required Lenders demanding the deposit of
cash collateral pursuant to this paragraph, or (ii) the Borrower shall be required to provide cash
collateral for Total LC Exposure pursuant to subsections 2.1(d) or 2.9(b), the Borrower shall
immediately deposit with the Agent an amount in cash equal to, in the case of an Event of Default,
the Total LC Exposure as of such date plus any accrued and unpaid interest thereon and, in the case
of any cash collateral required to be provided pursuant to subsections 2.1(d) or 2.9(b), the amount
required under subsections 2.1(d) or 2.9(b), as the case may be;
provided
that the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default described in clause (g) or (h) of Section 9.1. Such deposit
shall be held by the Agent as collateral in the first instance for the Total LC Exposure under this
Agreement and thereafter for the payment of any other obligations of the Credit Parties hereunder.
Cash collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h)
Applicability of ISP and UCP
. Unless otherwise expressly agreed by the Issuing
Lender and the Borrower when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.
(i)
Confirmation of Existing Letters of Credit Issued Under Prior Credit Agreement
.
All Existing Letters of Credit (including those issued under the Prior Credit Agreement)
outstanding on the Restatement Date shall be deemed to be Letters of Credit issued hereunder.
2.5
Loans and Borrowings; Funding of Borrowings.
(a)
Loans and Borrowings
. Each Loan shall be made as part of a Borrowing consisting
of Loans made by the Lenders ratably in accordance with their respective Commitments. The Failure
of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall
be responsible for any other Lenders failure to make Loans as required herein.
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(b)
Funding of Borrowings
. Each Lender shall make each Loan (other than a Swing Loan)
to be made by it hereunder on the proposed date thereof by wire transfer of immediately available
funds by 2:00 p.m., Boston, Massachusetts time to the account of the Agent most recently designated
by it for such purpose by notice to the Lenders. The Agent will make such Loans (other than Swing
Loans) available to the Borrower by promptly crediting the amounts so received, in like funds, to
one or more accounts of the Borrower maintained with the Agent in Boston, Massachusetts; provided
that (i) Revolving Base Rate Loans made to finance the reimbursement of an LC Disbursement under
any Letter of Credit as provided in subsection 2.4(c) shall be remitted by the Agent to the Issuing
Lender and (ii) Revolving Credit Base Rate Loans made to finance the refunding of Swing Loans as
provided in Section 2.6(d)(i) shall be remitted by the Agent to the Swing Loan Lender.
(c)
Agents Assumption that Each Lender will Make Loans
. Unless the Agent shall have
received notice from a Lender prior to the proposed date of any Borrowing (other than a Swing Loan
Borrowing) that such Lender will not make available to the Agent such Lenders share of such
Borrowing, the Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (b) of this Section 2.5 and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Agent, then the applicable Lender agrees to
pay to the Agent forthwith on demand in immediately available funds such corresponding amount with
interest thereon, for each day from and including the date such amount is made available to the
Borrower but excluding the date of payment to the Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees customarily charged by
the Agent in connection with the foregoing. If such Lender pays such amount to the Agent, then
such amount shall constitute such Lenders Loan included in such Borrowing.
2.6
Swing Loan Facility
.
(a)
The Swing Loan
. Subject to the terms and conditions hereinafter set forth, upon
notice by the Borrower made to the Swing Loan Lender in accordance with Section 2.6(b)(i), the
Swing Loan Lender hereby agrees to make Swing Loans to the Borrower from time to time on any
Business Day during the period between the Restatement Date and the Business Day immediately prior
to the expiration of the Revolving Credit Availability Period in an aggregate principal amount not
to exceed the Swing Loan Commitment. The Swing Loans shall be payable with interest accrued
thereon on the Business Day immediately prior to the expiration of the Revolving Credit
Availability Period. Amounts borrowed by the Borrower under this Section 2.6 may be repaid and
reborrowed, subject to the conditions hereof. At the time that each Swing Loan Borrowing is made,
such Borrowing shall be in an aggregate amount that is at least equal to $100,000 or any greater
multiple of $100,000. Notwithstanding any other provisions of this Agreement and in addition to
the Swing Loan Commitment limitation set forth above at no time shall the sum of (i) the aggregate
principal amount of all outstanding Swing Loans (after giving effect to all amounts requested and
the application of the proceeds thereof) plus (ii) the aggregate principal amount of all
outstanding Revolving Loans (after giving effect to all amounts requested and the application of
the proceeds thereof), plus (iii) the aggregate LC Exposure, exceed the aggregate amount of the
Revolving Credit Commitments of all the Lenders;
provided
,
however
, that subject to
the limitations set forth in this Section 2.6(a) from time to time the ratio of (x) the sum of the
aggregate Revolving Credit Exposure of the Swing Loan Lender (both in its capacity as the Swing
Loan Lender and in its capacity as a Revolving Credit Lender) to (y) the sum of the aggregate
Revolving Credit Exposure of all Lenders (including the Swing Loan Lender both in its capacity as
the Swing Loan Lender and in its capacity as a Revolving Credit Lender) may exceed its Applicable
Percentage.
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(b)
Requests for Swing Loans
.
(i) When the Borrower desires the Swing Loan Lender to make a Swing Loan, it shall send
to the Agent and the Swing Loan Lender a written request (or telephonic notice, if
thereafter promptly confirmed in writing) (a
Swing Loan Request
), which request
shall set forth (x) the principal amount of the proposed Swing Loan, and (y) the proposed
date of Borrowing of such Swing Loan (which date shall be a Business Day). Each such Swing
Loan Request must be received by the Swing Loan Lender not later than 1:00 p.m. (Boston,
Massachusetts time) on the proposed date of Borrowing of the Swing Loan being requested.
Each Swing Loan Request shall be irrevocable and binding on the Borrower and shall obligate
the Borrower to borrow the Swing Loan from the Swing Loan Lender on the proposed date of
Borrowing.
(ii) Upon satisfaction of the applicable conditions set forth in this Agreement, at or
before the close of business on the proposed date of Borrowing, the Swing Loan Lender shall
make the Swing Loan available to the Borrower by crediting the amount of the Swing Loan to
an account designated by the Borrower to the Swing Loan Lender; provided that Swing Loans
made to finance the reimbursement of an LC Disbursement under any Letter of Credit as
provided in Section 2.4(c) shall be remitted by the Agent to the Issuing Lender.
(iii) Notwithstanding the foregoing, the Swing Loan Lender shall not advance any Swing
Loans after it has received notice from any Lender or any Credit Party that a Default under
Section 9.1(a)(ii) or an Event of Default has occurred and is continuing and stating that no
new Swing Loans are to be made until such Default or Event of Default has been cured or
waived in accordance with the provisions of this Agreement.
(c)
Interest on Swing Loans
. Each Swing Loan shall be a Base Rate Loan and shall bear
interest for the account of the Swing Loan Lender thereof until repaid in full at the rate per
annum equal to the Base Rate
plus
the Applicable Margin for Base Rate Loans. The Borrower
promises to pay interest on the Swing Loans in arrears on each Interest Payment Date with respect
thereto. All such interest payable with respect to the Swing Loans shall be payable for the
account of the Swing Loan Lender.
(d)
Refundings of Swing Loans; Participations in Swing Loans
.
(i) The Swing Loan Lender, at any time in its sole and absolute discretion, may, on
behalf of the Borrower (which hereby irrevocably directs the Swing Loan Lender to act on its
behalf) request each Revolving Credit Lender, including the Swing Loan Lender, in its
capacity as a Revolving Credit Lender, to make a Revolving Loan in an amount equal to such
Revolving Credit Lenders Applicable Percentage of the amount of the Swing Loans (the
Refunded Swing Loans
) outstanding on the date such notice is given. Upon such
request, unless any of the Events of Default described in Section 9.1 (g) or (h) shall have
occurred (in which event the procedures of Section 2.6(d)(ii) shall apply), each Revolving
Credit Lender shall make the proceeds of its Revolving Loan available to the Agent, for the
account of the Swing Loan Lender, at the Agents office prior to 11:00 a.m. Boston,
Massachusetts time in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Revolving Loans shall be immediately
applied to repay the Refunded Swing Loans.
(ii) If, prior to the making of a Revolving Loan pursuant to Section 2.6(d)(i), an
Event of Default described in Section 9.1 (g) or (h) shall have occurred, each Revolving
Credit Lender will, on the date such Revolving Loan was to have been made, purchase an
undivided participation interest in the Refunded Swing Loan in an amount equal to its
Applicable
- 33 -
Percentage of such Refunded Swing Loan. Each Revolving Credit Lender will immediately
transfer to the Swing Loan Lender, in immediately available funds, the amount of its
participation in such Refunded Swing Loan.
(iii) Whenever, at any time after the Swing Loan Lender has received from any Revolving
Credit Lender such Revolving Credit Lenders participation interest in a Refunded Swing Loan
pursuant to Section 2.6(d)(ii) above, the Swing Loan Lender receives any payment on account
thereof, the Swing Loan Lender will distribute to such Revolving Credit Lender its
participation interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit Lenders
participation interest was outstanding and funded); provided, however, that in the event
that such payment received by the Swing Loan Lender is required to be returned, such
Revolving Credit Lender will return to the Swing Loan Lender any portion thereof previously
distributed by the Swing Loan Lender to it as such payment is required to be returned by the
Swing Loan Lender.
(iv) If any Revolving Credit Lender does not make available to the Swing Loan Lender
any amounts for the purpose of refunding a Swing Loan pursuant to Section 2.6(d)(i) above or
to purchase a participation interest in a Swing Loan pursuant to Section 2.6(d)(ii) above
(any such amounts payable by any Revolving Credit Lender being referred to herein as
Refunding or Participation Amounts) on the applicable due date with respect thereto, then
the applicable Revolving Credit Lender shall pay to the Swing Loan Lender forthwith on
demand such Refunding or Participation Amounts with interest thereon for each day from and
including the date such amount is made available to the Swing Loan Lender but excluding the
date of payment to the Swing Loan Lender, at the Federal Funds Effective Rate. If such
Lender pays such amount to the Swing Loan Lender, then such amount shall constitute such
Revolving Credit Lenders Loan included in such refunding Borrowing or the consideration for
the purchase of such participation interest, as the case may be.
(v) The failure or refusal of any Revolving Credit Lender to make available to the
Swing Loan Lender at the aforesaid time and place the amount of its Refunding or
Participation Amounts (x) shall not relieve any other Revolving Credit Lender from its
several obligations hereunder to make available to the Swing Loan Lender the amount of such
other Revolving Credit Lenders Refunding or Participation Amounts and (y) shall not impose
upon such other Revolving Credit Lender any liability with respect to such failure or
refusal or otherwise increase the Revolving Credit Commitment of such other Revolving Credit
Lender.
(vi) Each Revolving Credit Lender severally agrees that its obligation to make
available to the Swing Loan Lender its Refunding or Participation Amount as described above
shall (except to the extent expressly set forth in Section 2.6(d)(iv)) be absolute and
unconditional and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have
against the Swing Loan Lender, the Borrower or any other Person for any reason whatsoever,
(B) the occurrence or continuance of any Default, the termination of the Revolving Credit
Commitments or any other condition precedent whatsoever, (C) any adverse change in the
condition (financial or otherwise) of any Credit Party or any other Person, (D) any breach
of any of the Loan Documents by any of the Credit Parties or any other Lender, or (E) any
other circumstance, happening or event, whether or not similar to any of the foregoing;
provided
,
however
, that the obligation of each Revolving Credit Lender to
make available to the Swing Loan Lender its Refunding or Participation Amount in respect of
any Swing Loan is subject to the condition that the Swing Loan Lender believes in good faith
that all conditions under Section 6.2 were satisfied at the time such Swing Loan was made;
provided
further
that the Swing Loan
- 34 -
Lender shall have been deemed to have believed in good faith that such conditions were
satisfied unless, prior to the making of such Swing Loan, either (1) the Swing Loan Lender
shall have received notice from any other Lender or any Credit Party that a Default existed
as such time, or (2) the most recent Compliance Certificate received from the Borrower
indicating that a Default has occurred and is continuing and, in either case, such Default
had not been cured or waived at the time of the making of such Swing Loan.
2.7
Expiration, Termination or Reduction of Commitments.
(a)
Expiration of Revolving Credit Commitments
. Unless previously terminated, the
Revolving Credit Commitments shall expire at the close of business on the Revolving Credit Maturity
Date.
(b)
Reduction of Revolving Credit Commitments
. The Borrower may at any time and from
time to time reduce the Revolving Credit Commitments or the Swing Loan Commitment; provided that
(i) each reduction of the Revolving Credit Commitments or the Swing Loan Commitment shall be in an
amount that is at least equal to $500,000 or any greater multiple of $100,000, and (ii) the
Borrower shall not reduce (A) the Revolving Credit Commitments if, after giving effect to any
concurrent repayment, the total Revolving Credit Exposure would exceed the total Revolving Credit
Commitments or (B) the Swing Loan Commitment if, after giving effect to any concurrent repayment of
the Swing Loans in accordance with Section 2.6 or prepayment of the Loans in accordance with
Section 2.9, the aggregate principal amount of outstanding Swing Loans would exceed the Swing Loan
Commitment, after giving effect to such termination or reduction. The Borrower shall notify the
Agent of any election to reduce the Revolving Credit Commitment or the Swing Loan Commitment at
least three Business Days prior to the effective date of such reduction, specifying the effective
date thereof. Each notice of reduction of the Revolving Credit Commitment or the Swing Loan
Commitment shall be irrevocable. Each reduction of the Revolving Credit Commitment shall be
permanent and shall be made ratably among the Revolving Credit Lenders in accordance with their
respective Revolving Credit Commitments.
(c)
Optional Termination of Commitments
. The Borrower shall have the right at any
time to terminate the Commitments. The Borrower shall notify the Agent of any election to
terminate Commitments under this Section 2.7(c) at least three Business Days prior to the effective
date of such termination, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section 2.7(e) shall be irrevocable; provided
that a notice of termination of Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Agent on or prior to the specified effective date) if
such condition is not satisfied. Any termination of Commitments shall be permanent.
2.8
Payments Generally; Pro Rata Treatment; Sharing of Set-Offs; Collection.
(a)
Payments Generally
. The Borrower shall be obligated to make each payment required
to be made by the Borrower hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or otherwise) prior to 1:00 p.m. Boston, Massachusetts time, on the date when due,
in immediately available funds, in U.S. dollars, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating interest thereon. All
payments shall be made to the Agent at its offices in Boston, Massachusetts, except that payments
pursuant to Sections 2.4, 2.11, 2.12, 11.3 and subsection 2.3(g) shall be made directly to the
Persons entitled thereto. The Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate
- 35 -
recipient promptly following receipt thereof, and the Borrower shall have no liability in the
event timely or correct distribution of such payments is not so made. If any payment shall be due
on a day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. Notwithstanding anything to the contrary set forth herein, all
payments of interest, fees and other amounts (including, without limitation, payments of principal)
due to be paid by the Borrower hereunder shall be made through the automatic withdrawal from the
Borrowers deposit account with the Agent of amounts equal to the amounts of such interest, fees or
other amounts due to be paid by the Borrower hereunder, and the Borrower hereby irrevocably
authorizes and directs the Agent to take such actions as may be necessary to effectuate such
automatic withdrawals, and, upon funding of any such withdrawal in an amount sufficient to make a
payment of interest, fees or other amounts due hereunder, the Borrowers obligation to make such
payment shall be discharged. The Borrower expressly acknowledges and agrees that if any such
withdrawal is not in an amount sufficient to satisfy the amount of any interest, fees or other
amounts (including, without limitation, principal payments) due hereunder, the Borrower shall
remain obligated to pay the full amount of such interest, fees or other amounts as and when the
same shall become due.
(b)
Application of Payments
. If at any time insufficient funds are received by and
available to the Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder under any circumstances, including, without limitation during,
or as a result of the exercise by the Agent or the Lenders of remedies hereunder or under any other
Loan Document and applicable law, such funds shall be applied (i) first, to pay fees, costs and
expenses then due hereunder ratably among the parties entitled thereto under the Loan Documents in
accordance with the amounts of fees, costs and expenses then due to such parties, (ii) second, to
pay interest then due hereunder ratably among the parties entitled thereto under the Loan Documents
in accordance with the amount of interest then due to such parties; (iii) third, to pay principal
and unreimbursed LC Disbursements then due hereunder ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such
parties, and (iv) fourth, to any other Obligations then due from the Credit Parties to the Agent,
the Issuing Lender or the Lenders.
(c)
Pro Rata Treatment
. If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of set-off or otherwise) on account of the Loans made by it
(other than pursuant to Sections 2.4, 2.6, 2.11 or 2.12), then, if there is any Unreimbursed Amount
outstanding in respect of which the Issuing Lender has not received payment in full from such
Lender pursuant to Section 2.4(c) (the amount of such Unreimbursed Amount being such Revolving
Credit Lenders LC
Deficiency Amount
) or if there is any Swing Loan outstanding in
respect of which, pursuant to Section 2.6(d)(i) or (ii), the Swing Loan Lender has not received
payment in full from such Lender pursuant to Section 2.6(d)(i) or (ii) (the amount of such Swing
Loan being such Lenders
SL Deficiency Amount
), such Lender shall both (a) purchase a
participation in such Unreimbursed Amount in an amount equal to the amount obtained by multiplying
the amount of such payment obtained by such Lender (the
Payment Amount
) by a fraction,
the numerator of which is such LC Deficiency Amount and the denominator of which is the sum of such
LC Deficiency Amount
plus
such SL Deficiency Amount (such sum being the
Aggregate
Deficiency
with respect to such Payment Amount), and (b) purchase a participation in such
Swing Loan in an amount equal to the amount obtained by multiplying such Payment Amount by a
fraction, the numerator of which is such SL Deficiency and the denominator of which is such
Aggregate Deficiency. If, after giving effect to the foregoing, any Lender shall, by exercising
any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans (or participations in LC Disbursements) (other than pursuant to
Sections 2.4, 2.6, 2.11 or 2.12), resulting in such Lender receiving payment of a greater
proportion of the aggregate principal amount of its Loans (and participations in LC Disbursements)
and accrued interest thereon than the proportion of such amounts received by any other Lender, then
the Lender receiving such greater proportion shall purchase
- 36 -
(for cash at face value) participations in the Loans (and LC Disbursements) of the other
Lenders to the extent necessary so that the benefit of such payments shall be shared by all the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans (and participations in LC Disbursements);
provided
that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans (or participations in LC Disbursements) to any assignee or
participant, other than to any Credit Party or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.
(d)
Agents Assumption that Borrower will Make Payments
. Unless the Agent shall have
received notice from the Borrower prior to the date on which any payment is due to the Agent for
the account of the Lenders or the Issuing Lender entitled thereto (the Applicable Recipient)
hereunder that the Borrower will not make such payment, the Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Applicable Recipient the amount due. In such event, if the Borrower has not in
fact made such payment, then each Applicable Recipient severally agrees to repay to the Agent
forthwith on demand the amount so distributed to such Applicable Recipient with interest thereon,
for each day from and including the date such amount is distributed to it to but excluding the date
of payment to the Agent, at the Federal Funds Effective Rate.
(e)
Lenders Failure to Make Payment
. If any Lender shall fail to make any payment
required to be made by it pursuant to subsections 2.4(c), 2.5(c), 2.6(d)(i) or (ii), or 2.8(d),
then the Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Agent for the account of such Lender to satisfy such Lenders
obligations under such subsection until all such unsatisfied obligations are fully paid.
2.9
Prepayment of Loans
.
(a)
Optional Prepayments of Loans
. The Borrower shall have the right at any time and
from time to time to prepay the Revolving Loans (including the Swing Loans) in whole or in part,
subject to prior notice in accordance with subsection 2.9(d) in the case of LIBOR Loans, and
subject to the payment of any amounts due under subsection 2.3(g). The amount of any optional
prepayment in respect of the Revolving Loans shall be applied first, to the repayment of Swing
Loans and,
second
, to the repayment of Revolving Loans.
(b)
Mandatory Prepayments
. The Borrower shall be obligated to, and shall, make
prepayments of the Loans hereunder (and, if applicable as provided in Section 2.9(c), reduce the
Revolving Credit Commitments hereunder) as follows:
(i)
Incurrence of Debt
. Without limiting the obligation of the Borrower to
obtain the consent of the Required Lenders to any incurrence of Indebtedness not otherwise
permitted hereunder, the Borrower agrees, on the closing of any incurrence of Indebtedness
by any Credit Party (other than Indebtedness permitted pursuant to Section 8.1) to prepay
the Loans hereunder (and provide cash collateral for Total LC Exposure as specified in
subsection 2.4(h)), and, if applicable as provided in Section 2.9(c), the Revolving Credit
Commitments hereunder
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shall be subject to automatic reduction, upon the date of such incurrence of
Indebtedness, in an aggregate amount equal to 100% of the amount of the Net Cash Payments
from such incurrence of Indebtedness received by any Credit Party, such prepayment and
reduction to be effected in each case in the manner and to the extent specified in
subsection 2.9(c) below.
(ii)
Sale of Assets
. Without limiting the obligation of the Borrower to obtain
the consent of the Required Lenders to any Disposition not otherwise permitted hereunder,
the Borrower agrees, on or prior to the occurrence of any Disposition by any Credit Party,
to deliver to the Agent a statement certified by a Designated Financial Officer of the
Borrower, in form and detail reasonably satisfactory to the Agent, of the estimated amount
of the Net Cash Payments of such Disposition that will (on the date of such Disposition) be
received by any Credit Party in cash, indicating on such certificate, whether the Borrower
intends to reinvest such Net Cash Payments (to the extent Net Cash Payments from
Dispositions do not exceed $1,000,000 in the aggregate after the Effective Time) or will be
prepaying the Loans, as hereinafter provided, and the Borrower will be obligated to either
(A) cause the applicable Credit Party to reinvest such Net Cash Payments (to the extent Net
Cash Payments from Dispositions do not exceed $1,000,000 in the aggregate after the
Effective Time) within 180 days after receipt (or, if within such 180 day period the
Borrower or any Credit Party enters into contracts related to the reinvestment of such Net
Cash Payments, such longer period not to exceed 365 days after the original date of receipt
of such Net Cash Payments as is contemplated by such contracts) into replacement assets or
the repair of existing assets or (B) to the extent such Net Cash Payments exceed $1,000,000
in the aggregate after the Effective Time, prepay the Loans hereunder (and provide cover for
Total LC Exposure as specified in Section 2.4(h)), and, if applicable, as provided in
Section 2.9(c), the Revolving Credit Commitments hereunder shall be subject to automatic
reduction, as follows:
(x) upon the date of such Disposition, or on the date (the
Reinvestment Date
) which is 180 days after such date (or such
longer period not to exceed 365 days as contemplated by contracts related to
the reinvestment of such Net Cash Payments) if the Borrower had indicated on
the certificate delivered as hereinabove required that it intended to
reinvest the Net Cash Payments of such Disposition, in an aggregate amount
equal to 100% of the amount of such Net Cash Payments, to the extent
received by any Credit Party in cash on the date of such Disposition or, if
applicable, the Reinvestment Date to the extent of any Net Cash Payments not
so reinvested; and
(y) thereafter, quarterly, on the date of the delivery by the Borrower
to the Administrative Agent pursuant to Section 7.1 of the financial
statements for any quarterly fiscal period or fiscal year, to the extent any
Credit Party shall receive Net Cash Payments during the quarterly fiscal
period ending on the date of such financial statements in cash under
deferred payment arrangements or Investments entered into or received in
connection with any Disposition, an amount equal to (A) 100% of the
aggregate amount of such Net Cash Payments
minus
(B) any transaction
expenses associated with Dispositions and not previously deducted in the
determination of Net Cash Payments
plus
(or
minus
, as the
case may be) (C) any other adjustment received or paid by any Credit Party
pursuant to the respective agreements giving rise to Dispositions and not
previously taken into account in the determination of the Net Cash Payments.
Prepayments of Loans (and cover for Total LC Exposure) shall be effected in each case in the manner
and to the extent specified in paragraph (c) of this Section 2.9;
provided
that if at the
time of any such Disposition a Default shall have occurred and be continuing, the Credit Parties
shall not have the right to
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reinvest any Net Cash Payments and shall instead prepay the Loans by 100% of the amount of Net Cash
Payments received from such Disposition.
(iii)
Proceeds of Casualty Events
. Upon the date 180 days following the
receipt by any Credit Party of the proceeds of insurance, condemnation award or other
compensation in respect of any Casualty Event affecting any property of any Credit Party (or
upon such earlier date as such Credit Party, as the case may be, shall have determined not
to repair or replace the property affected by such Casualty Event), except to the extent Net
Cash Payments from Casualty Events do not exceed $1,500,000 in the aggregate after the
Effective Time, the Borrower shall prepay the Loans (and provide cover for Total LC Exposure
as specified in Section 2.4(h)), and, if applicable as provided in Section 2.9(c), the
Revolving Credit Commitments shall be subject to automatic reduction, in an aggregate
amount, if any, equal to 100% of the Net Cash Payments from such Casualty Event not
theretofore applied or committed to be applied to the repair or replacement of such property
(it being understood that if Net Cash Payments committed to be applied are not in fact
applied within twelve months after receipt thereof, then such Net Cash Payments shall be
applied to the prepayment of Loans and cover for Total LC Exposure and reduction of
Commitments as provided in this clause (iii) at the expiration of such 180 day period), such
prepayment and reduction to be effected in each case in the manner and to the extent
specified in paragraph (c) of this Section 2.9;
provided
that if a Default has
occurred and is continuing, no Net Cash Payments from any Casualty Event may be applied to
the repair or replacement of any property and such Net Cash Payments shall be applied in
stead to prepay the Loans by 100% of the amount of Net Cash Payments received from such
Casualty Event.
(c)
Application
.
(i) In the event of any mandatory prepayment of Loans pursuant to subsection (b) of
this Section 2.9, the proceeds shall be applied as follows:
(A) first, to the extent that a repayment of Swing Loans shall at such time be
required pursuant to Section 2.9(a), to the repayment of Swing Loans, but only to
such extent (with no reduction in the Commitments);
(B) second, to the extent that total Revolving Credit Exposure shall at such
time exceed the total Revolving Credit Commitments at such time, such prepayment
shall be applied to the repayment of Revolving Loans to be shared and applied
ratably among the Revolving Credit Lenders in proportion to their respective
Revolving Credit Commitments (with no reduction in the Commitments); and
(C) third, the amount of any mandatory prepayment shall be applied to repay
Revolving Loans, and, second, to provide cash collateral for Total LC Exposure as
specified in Section 2.4(h), with a corresponding permanent reduction in the
Revolving Credit Commitments.
(d)
Notification of Certain Prepayments
. The Borrower shall notify the Agent by
telephone (confirmed by telecopy) of any voluntary prepayment of any LIBOR Loan not later than 1:00
p.m., Boston, Massachusetts time, three Business Days before the date of such prepayment. The
Borrower shall notify the Agent of any mandatory prepayment of the Loans pursuant to subsection
2.9(b) hereunder as soon as practicable. The Borrower shall notify the Agent by telephone
(confirmed by telecopy) of any prepayment of Swing Loans under Sections 2.9(a) or 2.9(b) not later
than 1:00 p.m., Boston, Massachusetts time, on the date of such prepayment, which date shall be a
Business Day. Each
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such notice shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid. Promptly following receipt of any such
notice relating to a Borrowing (other than a Swing Loan Borrowing), the Agent shall advise the
Lenders of the contents thereof.
(e)
Prepayments Accompanied by Interest
. All prepayments shall be accompanied by
accrued interest through the date of prepayment.
2.10
Fees
.
(a)
Unused Fee
. The Borrower shall pay to the Agent for the account of each Lender
unused fees in respect of the Revolving Credit Commitments, in an aggregate amount equal to the
product of (x) the Applicable Unused Fee Rate,
multiplied by
(y) the daily average unused
amounts of the respective Revolving Credit Commitment of such Lender (excluding with respect to the
Swing Loan Lender the amount of any Swing Loans) during the period from and including the date on
which the Effective Time shall occur to but excluding the date on which the Revolving Credit
Commitments terminate;
provided
, that at any time when the Swing Loan Lender is the only
Lender hereunder, the amount of any Swing Loans outstanding shall be applied to reduce the daily
average unused amounts of the Revolving Credit Commitment of such Lender for purposes of this
Section 2.10(b). Accrued unused fees shall be payable monthly in arrears on the first day of each
month and on the date on which the Revolving Credit Commitments terminate. All unused fees shall
be computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b)
Letter of Credit Fees
. The Borrower shall pay with respect to Letters of Credit
issued hereunder the following fees:
(i) with respect to each standby or documentary Letter of Credit issued hereunder, to
the Agent for the accounts of the Revolving Credit Lenders a participation fee with respect
to their participations in such Letters of Credit which fee shall accrue at a rate per annum
equal to the Applicable Margin then used in determining interest on LIBOR Loans on the
average daily amount of such Lenders LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the
Restatement Date to but excluding the later of the date on which there shall no longer be
any Letters of Credit outstanding hereunder, and
(ii) with respect to each documentary or standby Letter of Credit issued hereunder, to
the Issuing Lender, a fronting fee equal to 0.25% per annum of the face amount of each
Letter of Credit, along with the Issuing Lenders standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder.
Accrued fees for Letters of Credit shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but excluding the last
day), and shall be payable monthly in arrears on the first day of each month and on the date the
Revolving Credit Commitments terminate, commencing on the first such date to occur after the date
hereof,
provided
that any such fees accruing after the date on which the Revolving Credit
Commitments terminate shall be payable on demand.
(c) The Borrower agrees to pay to the Agent, for its own account, fees payable in the amounts
and at the times set forth in the Fee Letter and as otherwise separately agreed in writing between
the Borrower and the Agent.
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(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds.
Fees paid shall not be refundable under any circumstances, absent manifest error in the
determination thereof.
2.11
Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender or the Issuing Lender; or
(ii) impose on any Lender or the Issuing Lender or the London interbank market any
other condition affecting this Agreement or LIBOR Loans made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan) or to increase
the cost to such Lender or the Issuing Lender of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay
to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Lender, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Lender reasonably determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return on such Lenders
or the Issuing Lenders capital or on the capital of such Lenders or the Issuing Lenders holding
company, if any, as a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Lender, to a
level below that which such Lender or the Issuing Lender or such Lenders or the Issuing Lenders
holding company could have achieved but for such Change in Law (taking into consideration such
Lenders or the Issuing Lenders policies and the policies of such Lenders or the Issuing Lenders
holding company with respect to capital adequacy), then from time to time the Borrower will pay to
such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Lender, or such Lenders or the Issuing Lenders holding
company, for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Lender setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Lender or its holding company, as the case may
be, as specified in subsections 2.11(a) or 2.11(b) above shall be delivered to the Borrower and
shall be conclusive so long as it reflects a reasonable basis for the calculation of the amounts
set forth therein and does not contain any manifest error. The Borrower shall pay such Lender or
the Issuing Lender the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing Lender to demand compensation
pursuant to this Section 2.11 shall not constitute a waiver of such Lenders or the Issuing
Lenders right to demand such compensation;
provided
that the Borrower shall not be
required to compensate a Lender or the Issuing Lender pursuant to this Section 2.11 for any
increased costs or reductions incurred more than six months prior to the date that such Lender or
the Issuing Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lenders or the Issuing Lenders intention to claim
compensation therefor;
provided
further that, if the Change in Law giving rise to such
increased costs or reductions is (i) retroactive and (ii)
- 41 -
occurred within such six-month period, then the six-month period referred to above may be
extended to include the period of retroactive effect thereof, but in no event any period prior to
the Restatement Date.
2.12
Taxes
.
(a) Any and all payments by or on account of any Obligations of the Borrower hereunder shall
be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided
that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section 2.12) the Agent, any Lender or the Issuing Lender (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay all Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) The Borrower shall indemnify the Agent, each Lender and the Issuing Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section 2.12) paid by the Agent, such Lender or the Issuing Lender, as the case
may be (and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto during the period prior to the Borrower making the payment demanded under this paragraph
(c)), whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Lender, or by the Agent on its own
behalf or on behalf of a Lender or the Issuing Lender shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment reasonably satisfactory to
the Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of a jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without withholding or at a reduced rate.
2.13
Mitigation Obligations; Replacement of Lenders
(a)
Designation of a Different Lending Office
. If any Lender requests compensation
under Section 2.11, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.12, then such Lender
shall use reasonable efforts to designate a different lending office for funding or booking its
Loans hereunder, or to assign its rights and obligations hereunder to another of its offices,
branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.11 or 2.12, as the case may be, in
the future and (ii) would not subject such Lender to any material unreimbursed cost or expense and
would not otherwise be materially disadvantageous to
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such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
(b)
Replacement of Lenders
. If any Lender requests compensation under Section 2.11,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.11, or if any Lender defaults in its
obligation to fund Loans hereunder, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in Section 11.4, all its interests,
rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment);
provided
that
(i) the Borrower shall have received the prior written consent of the Agent and the Issuing Lender,
which consents shall not unreasonably be withheld or delayed, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (and participations in LC
Disbursements), accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.11 or payments required to be
made pursuant to Section 2.12, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
Guarantee by Guarantors
3.1
The Guarantee
. The Guarantors hereby guarantee to each Lender, the Issuing Lender and the
Agent and their respective successors and permitted assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the Obligations. The Guarantors
hereby further agree that if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Obligations, the Guarantors will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such
extension or renewal.
3.2
Obligations Unconditional
. The obligations of the Guarantors under Section 3.1 are
absolute and unconditional irrespective of the value, genuineness, validity, regularity or
enforceability of this Agreement, the other Loan Documents or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any other guarantee of
or security for any of the Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of this Section 3.2
that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and
all circumstances. Without limiting the generality of the
[text missing]
(i) at any time or from time to time, without notice to such Guarantors, the time for
any performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;
- 43 -
(ii) any of the acts mentioned in any of the provisions hereof or of the other Loan
Documents or any other agreement or instrument referred to herein or therein shall be done
or omitted;
(iii) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right
hereunder or under the other Loan Documents or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the Obligations or any
security therefor shall be released or exchanged in whole or in part or otherwise dealt
with; or
(iv) any lien or security interest granted to, or in favor of, the Agent, the Issuing
Lender or any Lender or Lenders as security for any of the Obligations shall fail to be
perfected.
This Guarantee is a guaranty of payment and not of collection. The Guarantors hereby expressly
waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any
requirement that the Agent, the Issuing Lender or any Lender exhaust any right, power or remedy or
proceed against the Borrower hereunder or under the other Loan Documents or any other agreement or
instrument referred to herein or therein, or against any other Person under any other guarantee of,
or security for, any of the Obligations.
3.3
Reinstatement
. The obligations of the Guarantors under this Article 3 shall be
automatically reinstated if and to the extent that for any reason any payment by or on behalf of
the Borrower in respect of the Obligations is rescinded or must be otherwise restored by any holder
of any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization
or otherwise, and each Guarantor agrees that it will indemnify the Agent, the Issuing Lender and
each Lender on demand for all reasonable costs and expenses (including fees and expenses of
counsel) incurred by the Agent, any Lender or the Issuing Lender in connection with such rescission
or restoration, including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
3.4
Subrogation
. Until such time as the Obligations shall have been indefensibly paid in
full, each of the Guarantors hereby waives all rights of subrogation or contribution, whether
arising by contract or operation of law (including, without limitation, any such right arising
under the Federal Bankruptcy Code of 1978, as amended) or otherwise by reason of any payment by it
pursuant to the provisions of this Article 3 and further agrees with the Borrower for the benefit
of each creditor of the Borrower (including, without limitation, the Agent, the Issuing Lender and
each Lender) that any such payment by it shall constitute a contribution of capital by such
Guarantor to the Borrower.
3.5
Remedies
. The Guarantors agree that, as between the Guarantors and the Lenders, the
Obligations of the Borrower hereunder may be declared to be forthwith due and payable as provided
in Section 9.2 (and shall be deemed to have become automatically due and payable in the
circumstances provided in Section 9.2) for purposes of Section 3.1 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such Obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of such declaration
(or such Obligations being deemed to have become automatically due and payable), such Obligations
(whether or not due and payable by the Borrower) shall forthwith become due and payable by the
Guarantors for purposes of Section 3.1.
3.6
Instrument for the Payment of Money
. Each of the Guarantors hereby acknowledges that the
guarantee in this Article 3 constitutes an instrument for the payment of money, and consents and
- 44 -
agrees that the Agent, the Issuing Lender, or any Lender, at its sole option, in the event of
a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to
summary judgment or such other expedited procedure as may be available for a suit on a note or
other instrument for the payment of money.
3.7
Continuing Guarantee
. The guarantee in this Article 3 is a continuing guarantee, and
shall apply to all Obligations whenever arising.
3.8
General Limitation on Amount of Obligations Guaranteed
. In any action or proceeding
involving any state or non-U.S. corporate law, or any state or Federal or non-U.S. bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors generally, if the
obligations of the Guarantors under Section 3.1 would otherwise be held or determined to be void,
invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the
amount of its liability under Section 3.1, then, notwithstanding any other provision hereof to the
contrary, the amount of such liability shall, without any further action by the Guarantors, any
Lender, Agent or other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as determined in such
action or proceeding.
ARTICLE IV
The Collateral
4.1
Grant of Security Interest
. As security for due and punctual payment and performance of
the Obligations, each Credit Party hereby grants to the Agent for the ratable benefit of the
Lenders and the Issuing Lender a continuing security interest in and lien on all tangible and
intangible property and assets of such Credit Party, whether now owned or existing or hereafter
acquired or arising, together with any and all additions thereto and replacements therefor and
proceeds and products thereof (collectively referred to for purposes of this Article 4 as
Collateral
), including without limitation the property described below:
(a) all tangible personal property, including without limitation all present and future goods,
inventory (including, without limitation, all merchandise, raw materials, work in process, finished
goods and supplies), machinery, equipment, motor vehicles, rolling stock, tools, furniture,
fixtures, office supplies, computers, computer software and associated equipment, whether now owned
or hereafter acquired, including, without limitation, all tangible personal property used in the
operation of the business of such Credit Party;
(b) all rights under all present and future authorizations, permits, licenses and franchises
issued, granted or licensed to such Credit Party for the operation of its business;
(c) all Patents of such Credit Party;
(d) all Trademarks of such Credit Party;
(e) all Copyrights of such Credit Party;
(f) the entire goodwill of business of such Credit Party and all other general intangibles
(including know-how, trade secrets, customer lists, proprietary information, inventions, domain
names, methods, procedures and formulae) connected with the use of and symbolized by any Patents,
Trademarks or Copyrights of such Credit Party;
- 45 -
(g) all rights under all present and future vendor or customer contracts and all franchise,
distribution, design, consulting, construction, engineering, management and advertising and related
agreements;
(h) all rights under all present and future leases of real and personal property; and all
other personal property, including, without limitation, all present and future accounts, accounts
receivable, cash, cash equivalents, deposits, deposit accounts, loss carry back, tax refunds,
insurance proceeds, premiums, rebates and refunds, choses in action, investment property,
securities, partnership interests, limited liability company interests, contracts, contract rights,
general intangibles (including without limitation, all customer and advertiser mailing lists,
intellectual property, patents, copyrights, trademarks, trade secrets, trade names, domain names,
goodwill, customer lists, advertiser lists, catalogs and other printed materials, publications,
indexes, lists, data and other documents and papers relating thereto, blueprints, designs, charts,
and research and development, whether on paper, recorded electronically or otherwise), all websites
(including without limitation, all content, HTML documents, audiovisual material, software, data,
hardware, access lines, connections, copyrights, trademarks, patents and trade secrets relating to
such websites) and domain names, any information stored on any medium, including electronic medium,
related to any of the personal property of such Credit Party, all financial books and records and
other books and records relating, in any manner, to the business of such Credit Party, all
proposals and cost estimates and rights to performance, all instruments and promissory notes,
documents and chattel paper, and all debts, obligations and liabilities in whatever form owing to
such Credit Party from any person, firm or corporation or any other legal entity, whether now
existing or hereafter arising, now or hereafter received by or belonging or owing to such Credit
Party; and all guaranties and security therefor, and all letters of credit and other supporting
obligations in respect of such debts, obligations and liabilities.
Any of the foregoing terms which are defined in the Uniform Commercial Code shall have the meaning
provided in the Uniform Commercial Code, as amended and in effect from time to time, as
supplemented and expanded by the foregoing.
The term Collateral shall in no event include (a) any Energy Conservation Financing Collateral or
(b) any rights under any license or lease, in each case, to the extent (and only to the extent) the
grant of a security interest pursuant to this Agreement and the other Loan Documents (i) would
invalidate the underlying rights of such Credit Party under such license or lease, (ii) is
prohibited by such license or lease, without the consent of any other party thereto, (iii) would
give any other party to such license or lease the right to terminate its obligations thereunder, or
(iv) is not permitted without consent, unless in each case, all necessary consents to such grant of
a security interest have been obtained from the other parties thereto;
provided
, however,
that, notwithstanding the foregoing provisions of this paragraph, (x) the foregoing grant of
security interest shall extend to, and the Collateral hereunder shall include, any and all proceeds
of any such license or lease to the extent that the assignment or encumbering of such proceeds is
not prohibited by applicable law, (y) immediately upon the ineffectiveness, lapse, waiver or
termination of any such provision or restriction referred to above in this sentence, the Collateral
hereunder shall include, and such Credit Party shall be deemed to have granted a security interest
in, all such rights and interests in and to each and every license or lease to which such provision
or restriction pertained as if such provision or restriction had never been in effect and (z) the
Collateral shall include, and the Credit Party shall be deemed to have granted a security interest
in, any of such Credit Partys rights, interests, licenses or leases and any other rights and
assets that would not constitute Collateral if the foregoing provisions of this sentence governed,
if and to the extent that the issuer of or other party to such license or lease has consented to
such grant or to the extent that any term of any such rights, interests, licenses or leases would
be rendered ineffective pursuant to the Uniform Commercial Code or any other applicable law
(including any federal, state or foreign bankruptcy, insolvency or similar law).
- 46 -
4.2
Special Warranties and Covenants of the Credit Parties
. Each Credit Party hereby warrants
and covenants to the Agent and the Lenders that:
(a) Such Credit Party has delivered to the Agent a Perfection Certificate in substantially the
form of
Exhibit C
hereto. All information set forth in such Perfection Certificate is true
and correct in all material respects and the facts contained in such Perfection Certificate are
accurate in all material respects as of the date of this Agreement. Each Credit Party agrees to
supplement its Perfection Certificate promptly after obtaining information which would require a
material correction or addition to such Perfection Certificate.
(b) No Credit Party will change its jurisdiction of organization, principal or any other place
of business, or the location of any Collateral from the locations set forth in the Perfection
Certificate delivered by such Credit Party, or make any change in its name or conduct its business
operations under any fictitious business name or trade name, without, in any such case, at least
fifteen (15) days prior written notice to the Agent; provided that the inventory of such Credit
Party may be in the possession of manufacturers or processors in any jurisdiction in which all
necessary UCC financing statements have been filed by the Agent and with respect to which the Agent
has received waiver letters from all landlords, warehousemen and processors in form and substance
acceptable to the Agent.
(c) Except for Collateral that is obsolete or no longer used in their business, the Credit
Parties will keep the Collateral in good order and repair (normal wear excepted) and adequately
insured at all times in accordance with the provisions of Section 7.5. The Credit Parties will pay
promptly when due all taxes and assessments on the Collateral or for its use or operation, except
for taxes and assessments permitted to be contested as provided in Section 7.4. Following the
occurrence and during the continuance of an Event of Default, the Agent may at its option discharge
any taxes or Liens to which any Collateral is at any time subject (other than Permitted Liens), and
may, upon the failure of the Credit Parties to do so in accordance with this Agreement, purchase
insurance on any Collateral and pay for the repair, maintenance or preservation thereof, and each
Credit Party agrees to reimburse the Agent on demand for any payments or expenses incurred by the
Agent or the Lenders pursuant to the foregoing authorization and any unreimbursed amounts shall
constitute Obligations for all purposes hereof.
(d) The Agent may at reasonable times request and each Credit Party shall deliver copies of
all customer lists and vendor lists.
(e) To the extent, if any, that such Credit Partys signature is required therefor, each
Credit Party will promptly execute and deliver to the Agent such financing statements and
amendments thereto, certificates and other documents or instruments as may be necessary to enable
the Agent to perfect or from time to time renew the security interest granted hereby, including,
without limitation, such financing statements and amendments thereto, certificates and other
documents as may be necessary to perfect a security interest in any additional Collateral hereafter
acquired by such Credit Party or in any replacements or proceeds thereof. Each Credit Party
authorizes and appoints the Agent, in case of need, to execute such financing statements,
certificates and other documents pertaining to the Agents security interest in the Collateral in
its stead if such Credit Partys signature is required therefor and such Credit Party fails to so
execute such documents, with full power of substitution, as such Debtors attorney in fact. Each
Credit Party further agrees that a carbon, photographic or other reproduction of a security
agreement or financing statement is sufficient as a financing statement under this Agreement and
the other Loan Documents.
(f) Each Credit Party hereby irrevocably authorizes the Agent, at any time and from time to
time, to file in any jurisdiction financing statements and amendments thereto that (i) indicate the
Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether
any
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particular asset falls within the scope of Article 9 of the Uniform Commercial Code of the
Commonwealth of Massachusetts or such jurisdiction or (y) as being of an equal or lesser scope or
with greater detail and (ii) which contain any other information required by Article 9 of the
Uniform Commercial Code (including Part 5 thereof) for the sufficiency or filing office acceptance
of any financing statement or amendment, including whether (A) any Credit Party is an organization,
the type of organization and any organization identification number issued to such Credit Party and
(B) in the case of a financing statement filed as a fixture filing or indicating Collateral as
as-extracted collateral or timber to be cut, a sufficient description of the real property to which
the Collateral relates. The Credit Parties agree to furnish any such information to the Agent
promptly upon reasonable request. Each Credit Party also ratifies its authorization for the Agent
to have filed in any Uniform Commercial Code jurisdiction any like initial financing statements or
amendments thereto if filed prior to the date hereof.
(g) Each Credit Party agrees that it will join with the Agent in executing and, at its own
expense, will file and refile, or permit the Agent to file and refile such financing statements,
continuation statements and other documents (including, without limitation, this Agreement and
licenses to use software and other property protected by copyright), in such offices (including,
without limitation, the PTO, the United States Copyright Office, and appropriate state patent,
trademark and copyright offices), as the Agent may reasonably deem necessary or appropriate,
wherever required or permitted by law in order to perfect and preserve the rights and interests
granted to the Agent in Patents, Trademarks and Copyrights hereunder. Each Credit Party will give
the Agent notice of each office at which records of such Credit Party pertaining to all intangible
items of Collateral are kept. Except as may be provided in such notice, the records concerning all
intangible Collateral are and will be kept at the address shown in the respective Perfection
Certificate for such Credit Party as the principal place of business of such Credit Party.
(h) The Credit Parties are the sole and exclusive owners of the websites and domain names
listed on
Schedule 4.2
hereto and have registered such domain names with the applicable
authority for registration of the same which provides for the exclusive use by the Credit Parties
of such domain names. The websites do not contain, to the knowledge of the Credit Parties, any
material, the publication of which may result in (a) the violation of rights of any person or (b) a
right of any person against the publisher or distributor of such material.
(i) The Credit Parties shall, annually by the end of the first calendar quarter following the
previous calendar year, provide written notice to the Agent of all applications for registration of
Patents, Trademarks or Copyrights, to the extent such applications exist, made during the preceding
calendar year. The Credit Parties shall file and prosecute diligently all applications for
registration of Patents, Trademarks or Copyrights now or hereafter pending that would be necessary
to the business of the Credit Parties to which any such applications pertain, and to do all acts,
in any such instance, necessary to preserve and maintain all rights in such registered Patents,
Trademarks or Copyrights unless such Patents, Trademarks or Copyrights are not material to the
business of the Credit Parties, as reasonably determined by the Credit Parties consistent with
prudent and commercially reasonable business practices. Any and all costs and expenses incurred in
connection with any such actions shall be borne by the Credit Parties. Except in accordance with
prudent and commercially reasonable business practices, the Credit Parties shall not abandon any
right to file a Patent, Trademark or Copyright application or any pending Patent, Trademark or
Copyright application or any registered Patent, Trademark or Copyright, in each case material to
its business, without the consent of the Agent.
(j) The domain name servers used in connection with the domain names of the Credit Parties and
all other relevant information pertaining to such domain names, and the administrative contacts
used in connection with the registration of such domain names are identified on
Schedule
4.2
hereof. No Credit Party will change such domain name servers without 10 days prior notice
to the
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Agent. No Credit Party will cause a change in the identity of any domain name administrative
contact without 10 days prior notice to the Agent.
(k) If any Credit Party is, now or at any time hereafter, a beneficiary under a letter of
credit in an amount equal to or greater than $100,000, such Credit Party shall promptly notify the
Agent thereof and, at the request and option of the Agent, such Credit Party shall, pursuant to an
agreement in form and substance satisfactory to the Agent, either (i) arrange for the issuer and
any confirmer or other nominated person of such letter of credit to consent to an assignment to the
Agent of the proceeds of the letter of credit or (ii) arrange for the Agent to become the
transferee beneficiary of the letter of credit, with the Agent agreeing, in each case, that the
proceeds of the letter of credit are to be applied by the Agent against the Obligations as provided
in this Agreement.
(l) To the extent any Credit Party shall, now or at any time hereafter, hold or acquire any
promissory note or other instrument or tangible chattel paper (other than a construction contract
entered into by any Credit Party in the ordinary course of such Credit Partys business) in an
amount equal to or greater than $100,000, such Credit Party will promptly notify the Lender thereof
and, at the request and option of the Lender, such Debtor will deliver such promissory note or
other instrument or tangible chattel paper to the Lender to be held as Collateral hereunder,
together with an endorsement thereof reasonably satisfactory in form and substance to the Lender.
(m) If, now or at any time hereafter, any Credit Party shall obtain or hold any investment
property or electronic chattel paper in an amount equal to or greater than $100,000, such Credit
Party will promptly notify the Lender thereof and, at the request and option of the Lender, such
Credit Party will take or cause to be taken such steps as the Lender may reasonably request for the
Lender to obtain control (as provided in Sections 9-105 and 9-106 of the Uniform Commercial Code
of the Commonwealth of Massachusetts, as amended and in effect from time to time) of such
Collateral.
(n) No Credit Party holds any commercial tort claims, as defined in Article 9 of the Uniform
Commercial Code, except as indicated in the Perfection Certificates attached hereto as
Exhibit
C
. If any of the Credit Parties shall at any time acquire a commercial tort claim, such Credit
Party shall immediately notify the Lender in a writing signed by such Credit Party of the brief
details thereof and grant to the Lender in such writing a security interest therein and in the
proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and
substance reasonably satisfactory to the Lender.
(o) If any Credit Party has accounts receivable in respect of which the account debtor is
located in Minnesota, the Credit Parties represent and warrant that the applicable Credit Party has
filed and shall file all legally-required Notice of Business Activities Reports and comparable
reports with the appropriate government authorities.
4.3
Fixtures, etc.
It is the intention of the parties hereto that none of the Collateral
shall become fixtures and, except as set forth on
Schedule 4.3
attached hereto and except
for Collateral which becomes a fixture pursuant to any construction contract entered into by a
Credit Party the ordinary course of such Credit Partys business, each Credit Party will take all
such reasonable action or actions as may be necessary to prevent any of the Collateral from
becoming fixtures. Without limiting the generality of the foregoing, each Credit Party will, if
requested by the Agent, use commercially reasonable efforts to obtain waivers of Liens, in form
satisfactory to the Agent, from each lessor of real property on which any of the Collateral is or
is to be located to the extent requested by the Agent.
4.4
Right of Agent to Dispose of Collateral, etc
. Upon the occurrence and during the
continuance of any Event of Default, but subject to the provisions of the Uniform Commercial Code
or
- 49 -
other applicable law, in addition to all other rights under applicable law and under the Loan
Documents, the Agent shall have the right to take possession of the Collateral and, in addition
thereto, the right to enter upon any premises on which the Collateral or any part thereof may be
situated and remove the same therefrom. The Agent may require the Credit Parties to make the
Collateral (to the extent the same is moveable) available to the Agent at a place to be designated
by the Agent or transfer any information related to the Collateral to the Agent by electronic
medium. Unless the Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Agent will give the Credit Parties at least ten
(10) days prior written notice of the time and place of any public sale thereof or of the time
after which any private sale or any other intended disposition thereof is to be made. Any such
notice shall be deemed to meet any requirement hereunder or under any applicable law (including the
Uniform Commercial Code) that reasonable notification be given of the time and place of such sale
or other disposition.
4.5
Right of Agent to Use and Operate Collateral, etc.
Upon the occurrence and during the
continuance of any Event of Default, subject to the provisions of the Uniform Commercial Code or
other applicable law, the Agent shall have the right and power (a) to take possession of all or any
part of the Collateral, and to exclude the Credit Parties and all persons claiming under the Credit
Parties wholly or partly therefrom, and thereafter to hold, store, and/or use, operate, manage and
control the same, and (b) to grant a license to use, or cause to be granted a license to use, any
or all of the Patents, Trademarks and Copyrights (in the case of Trademarks, along with the
goodwill associated therewith), but subject to the terms of any licenses. Upon any such taking of
possession, the Agent may, from time to time, at the expense of the Credit Parties, make all such
repairs, replacements, alterations, additions and improvements to and of the Collateral as the
Agent may deem proper. In any such case the Agent shall have the right to manage and control the
Collateral and to carry on the business and to exercise all rights and powers of the Credit Parties
in respect thereto as the Agent shall deem best, including the right to enter into any and all such
agreements with respect to the operation of the Collateral or any part thereof as the Agent may see
fit; and the Agent shall be entitled to collect and receive all rents, issues, profits, fees,
revenues and other income of the same and every part thereof. Such rents, issues, profits, fees,
revenues and other income shall be applied to pay the expenses of holding and operating the
Collateral and of conducting the business thereof, and of all maintenance, repairs, replacements,
alterations, additions and improvements, and to make all payments which the Agent may be required
or may elect to make, if any, for taxes, assessments, insurance and other charges upon the
Collateral or any part thereof, and all other payments which the Agent may be required or
authorized to make under any provision of this Agreement (including reasonable legal costs and
attorneys fees). The Agent shall apply the remainder of such rents, issues, profits, fees,
revenues and other income as provided in Section 4.6.
4.6
Proceeds of Collateral
. After deducting all reasonable costs and expenses of collection,
storage, custody, sale or other disposition and delivery (including reasonable legal costs and
attorneys fees) and all other charges against the Collateral, the Agent shall apply the residue of
the proceeds of any such sale or disposition to the Obligations in accordance with the terms hereof
and any surplus shall be returned to the Credit Parties or to any Person or party lawfully entitled
thereto (including, if applicable, any holders of Subordinated Indebtedness). In the event the
proceeds of any sale, lease or other disposition of the Collateral are insufficient to pay all of
the Obligations in full, the Credit Parties will be liable for the deficiency, together with
interest thereon at the Post-Default Rate, and the cost and expenses of collection of such
deficiency, including (to the extent permitted by law), without limitation, reasonable attorneys
fees, expenses and disbursements.
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ARTICLE V
Representations and Warranties
Each Credit Party represents and warrants to the Lenders, the Issuing Lender and the Agent, as
to itself and each other Credit Party, that:
5.1
Organization; Powers
. Each Credit Party has been duly formed or organized and is validly
existing and in good standing under the laws of its jurisdiction of organization. Each Credit
Party has all requisite power and authority to carry on its business as now conducted and is
qualified to do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure to have such power or authority or to be so
qualified or in good standing, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
5.2
Authorization; Enforceability
. The borrowing of the Loans and the grant of security
interests pursuant to the Loan Documents are within the power and authority of the Credit Parties
and have been duly authorized by all necessary action on the part of the Credit Parties. This
Agreement and the other Loan Documents have been duly authorized, executed and delivered by the
Credit Parties and constitute legal, valid and binding obligations of the Credit Parties,
enforceable in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law.
5.3
Governmental Approvals; No Conflicts
. The borrowing of the Loans and the grant of the
security interests pursuant to the Loan Documents (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority which has not been
obtained, except as disclosed on
Schedule 5.3
, (b) will not violate any applicable law,
policy or regulation or the organizational documents of the Credit Parties or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, agreement
or other instrument binding upon the Credit Parties, or any assets, or give rise to a right
thereunder to require any payment to be made by the Credit Parties, and such violation or default
or right to payment would have a Material Adverse Effect, and (d) except for the Liens created by
the Loan Documents, will not result in the creation or imposition of any Lien on any asset of the
Credit Parties.
5.4
Financial Condition; No Material Adverse Change.
(a) The Credit Parties have heretofore delivered to the Lenders the following financial
statements:
(i) the consolidated balance sheets and statements of operations, shareholders equity
and cash flows of the Borrower and all Subsidiaries of the Borrower, as of and for the
fiscal years ended December 31, 2005, December 31, 2006 and December 31, 2007, in each case,
audited and accompanied by an opinion of the Borrowers independent public accountants;
(ii) the unaudited consolidated balance sheet and statements of operations,
shareholders equity and cash flows of the Borrower and all Subsidiaries of the Borrower and
all Subsidiaries of the Borrower, as of and for the fiscal year-to-date period ended March
31, 2008, certified by a Designated Financial Officer that such financial statements fairly
present in all material respects the financial condition of the Borrower and all
Subsidiaries of the Borrower as at such date and the results of the operations of the
Borrower and all Subsidiaries of the Borrower
- 51 -
for the period ended on such date and that all such financial statements, including the
related schedules and notes thereto have been prepared in all material respects in
accordance with GAAP applied consistently throughout the periods involved, except as
disclosed on
Schedule 5.4
; and
(iii) the projected consolidated balance sheets, statements of operations and cash
flows for the Borrower and all Subsidiaries of the Borrower on a monthly basis for fiscal
year 2008.
Except as disclosed on
Schedule 5.4
, such financial statements (except for the projections)
present fairly, in all material respects, the respective consolidated financial position and
results of operations and cash flows of the respective entities as of such respective dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of such unaudited or
pro forma
statements. The projections were prepared by
the Borrower in good faith and were based on assumptions that were reasonable when made, it being
understood, that actual results during the periods covered thereby may differ from the projected
results.
(b) Except as disclosed on
Schedule 5.4
, since December 31, 2007, there has been no
material adverse change in the business, assets, operations or condition, financial or otherwise,
of the Credit Parties (taken as a whole) from that set forth in the December 31, 2007 financial
statements referred to in clause (ii) of paragraph (a) above.
(c) None of the Credit Parties has on the date hereof any contingent liabilities, liabilities
for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments in each case that are material and would need to be disclosed on financial
statements in accordance with GAAP, except (i) as referred to or reflected or provided for in the
financial statements described in this Section 5.4, (ii) as provided for in
Schedule 5.4
annexed hereto, or (iii) as otherwise permitted pursuant to this Agreement.
5.5
Properties.
(a) Each Credit Party has good and marketable title to, or valid, subsisting and enforceable
leasehold interests in, all its Property material to its business. All machinery and equipment of
the Credit Parties material to their business is in good operating condition and repair (ordinary
wear and tear excepted), and all necessary replacements of and repairs thereto have be made so as
to preserve and maintain the value and operating efficiency of such machinery and equipment.
(b) Set forth on
Schedule 5.5
hereto is a complete list of all Patents, Trademarks and
Copyrights. Each Credit Party owns, or is licensed to use, all Patents, Trademarks and Copyrights
and other intellectual property material to its business (
Proprietary Rights
), and to the
knowledge of the Borrower, the use thereof by the Credit Parties does not infringe upon the rights
of any other Person, except for any such infringements that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
(c)
Schedule 5.5
clearly identifies all Patents, Trademarks and Copyrights that have
been duly registered in, filed in or issued by the PTO or the United States Register of Copyrights
(collectively, the
Registered Proprietary Rights
). The Registered Proprietary Rights
have been properly maintained and renewed in accordance with all applicable provisions of law and
administrative regulations in the United States, as applicable. The Credit Parties have taken
commercially reasonable steps to protect the Registered Proprietary Rights material to their
businesses and to maintain the confidentiality of all Proprietary Rights that are not generally in
the public domain.
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(d) As of the date hereof,
Schedule 5.5
annexed hereto contains a true, accurate and
complete list of (i) all Real Property Assets, whether owned or leased, and (ii) all leases,
subleases or assignments of leases (together with all amendments, modifications, supplements,
renewals or extensions of any thereof) affecting each Leasehold Property, regardless of whether
such Credit Party is the landlord or tenant (whether directly or as an assignee or successor in
interest) under such lease, sublease or assignment. Except as specified in
Schedule 5.5
,
each agreement listed in clause (ii) of the immediately preceding sentence is in full force and
effect and the Borrower has no knowledge of any default that has occurred and is continuing
thereunder, and each such agreement constitutes the legal, valid and binding obligation of each
applicable Credit Party, enforceable against such Credit Party in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors rights generally or by equitable principles.
5.6
Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Credit Parties, threatened against or
affecting any Credit Party as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters set forth
in part (a) of
Schedule 5.6
).
(b) Except for the Disclosed Matters set forth in
Schedule 5.6
and except with respect
to any other matters that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, the Credit Parties (i) have not failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required in connection with the operation of the Credit Parties business to be in compliance with
all applicable Environmental Laws, (ii) have not become subject to any Environmental Liability;
(iii) have not received notice of any claim with respect to any Environmental Liability or any
inquiry, allegation, notice or other communication from any Governmental Authority which is
currently outstanding or pending concerning its compliance with any Environmental Law or (iv) do
not know of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
5.7
Compliance with Laws and Agreements
. Except as set forth on
Schedule 5.7
, each
Credit Party is in compliance with all laws, regulations, policies and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.
5.8
Investment and Holding Company Status
. No Credit Party is (a) an investment company as
defined in, or subject to regulation under, the Investment Company Act of 1940, as amended, (b) a
holding company as defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended or (c) a bank holding company as defined in, or subject to regulation
under, the Bank Holding Company Act of 1956, as amended.
5.9
Taxes
. Except as set forth on
Schedule 5.9
, each Credit Party has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which such Credit Party has set aside on its books
adequate reserves with
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respect thereto in accordance with GAAP, which reserves shall be acceptable to Agent, or (b)
to the extent that the failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
5.10
ERISA
. Except as set forth on
Schedule 5.10
, no Credit Party has any Pension
Plans. No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. No Credit Party has a present
intention to terminate any Pension Plan with respect to which any Credit Party would incur a cost
of more than $100,000 to terminate such Plan, including amounts required to be contributed to fund
such Plan on Plan termination and all costs and expenses associated therewith, including without
limitation attorneys and actuaries fees and expenses in connection with such termination and a
reasonable estimate of expenses and settlement or judgment costs and attorneys fees and expenses
in connection with litigation related to such termination.
5.11
Disclosure
. As of the Effective Time, the Credit Parties have disclosed to the Agent all
material agreements, instruments and corporate or other restrictions to which any Credit Party is
subject after the Effective Time, and all other matters known to the Credit Parties, that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect. The organizational structure of the Credit Parties is as set forth on
Schedule
5.12
annexed hereto. The information, reports, financial statements, exhibits and schedules
furnished at or prior to the Effective Time in writing by or on behalf of the Credit Parties to the
Agent in connection with the negotiation, preparation or delivery of this Agreement and the other
Loan Documents or included herein or therein or delivered pursuant hereto or thereto, at the
Effective Time, when taken as a whole do not contain any untrue statement of material fact or omit
to state any material fact necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not materially misleading. All written information
furnished after the Effective Time by the Credit Parties to the Agent and/or the Lenders in
connection with this Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material respect, or (in the case
of pro-forma information and projections) prepared in good faith based on assumptions reasonable as
of the date when such information is stated or certified. There is no fact known to the Credit
Parties that could reasonably be expected to have a Material Adverse Effect that has not been
disclosed herein, in the other Loan Documents or in a report, financial statement, exhibit,
schedule, disclosure letter or other writing furnished to the Agent for use in connection with the
transactions contemplated hereby or thereby.
5.12
Capitalization
. As of the Effective Time, the capital structure and ownership of the
Borrower and its Subsidiaries are correctly described on
Schedule 5.12
. As of the
Effective Time, the authorized, issued and outstanding capital stock of the Borrower and each
Subsidiary of the Borrower consists of the capital stock described on
Schedule 5.12
, all of
which is duly and validly issued and outstanding, fully paid and nonassessable. Except as set
forth on
Schedule 5.12
, as of the date hereof, (x) there are no outstanding Equity Rights
with respect to the Borrower or any Subsidiary of the Borrower and, (y) there are no outstanding
obligations of the Borrower or any Subsidiary of the Borrower to repurchase, redeem, or otherwise
acquire any shares of capital stock of or other interest in the Borrower or any Subsidiary of the
Borrower, nor are there any outstanding obligations of the Borrower or any Subsidiary of the
Borrower to make payments to any Person, such as phantom stock payments, where the amount thereof
is calculated with reference to the fair market value or equity value of the Borrower or any
Subsidiary of the Borrower.
5.13
Subsidiaries.
(a) Set forth on
Schedule 5.13
is a complete and correct list of all Subsidiaries of
the Borrower as of the date hereof, together with, for each such Subsidiary, (i) the jurisdiction
of organization of such Subsidiary, (ii) each Person holding ownership interests in such
Subsidiary, (iii) the nature of the
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ownership interests held by each such Person and the percentage of ownership of such
Subsidiary represented by such ownership interests and (iv) a statement with respect to each
Subsidiary as to whether such Subsidiary is a Renewable Energy Subsidiary or other Non-Core Energy
Subsidiary, a Special Purpose Subsidiary (other than Non-Core Energy Subsidiary), a Foreign
Subsidiary, an Inactive Subsidiary, or a Subsidiary engaged in the line of business activity
engaged in by the Core Ameresco Group. Except as disclosed in
Schedule 5.13
, (x) each
Credit Party and its respective Subsidiaries owns, free and clear of Liens (other than Liens
permitted hereunder), and has the unencumbered right to vote, all outstanding ownership interests
in each Person shown to be held by it in
Schedule 5.13
, (y) all of the issued and
outstanding capital stock of each such Person organized as a corporation is validly issued, fully
paid and nonassessable and (z) there are no outstanding Equity Rights with respect to such Person.
(b) Except as set forth on
Schedule 8.8
, as of the date of this Agreement none of the
Credit Parties is subject to any indenture, agreement, instrument or other arrangement containing
any provision of the type described in Section 8.8 (
Restrictive Agreements
), other than
any such provision the effect of which has been unconditionally, irrevocably and permanently
waived.
5.14
Material Indebtedness, Liens and Agreements.
(a)
Schedule 5.14
hereto contains a complete and correct list, as of the date of this
Agreement, of all Material Indebtedness or any extension of credit (or commitment for any extension
of credit) to, or guarantee by, any Credit Party the aggregate principal or face amount of which
equals or exceeds (or may equal or exceed) $500,000, and the aggregate principal or face amount
outstanding or that may become outstanding with respect thereto is correctly described on
Schedule 5.14
.
(b)
Schedule 5.14
hereto is a complete and correct list, as of the date of this
Agreement, of each Lien (other than the Liens in favor of the Agent and Lenders) securing
Indebtedness of any Person and covering any property of the Credit Parties, and the aggregate
Indebtedness secured (or which may be secured) by each such Lien and the Property covered by each
such Lien is correctly described in the appropriate part of
Schedule 5.14
.
(c)
Schedule 5.14
hereto is a complete and correct list, as of the date of this
Agreement, of each contract and arrangement to which any Credit Party is a party for which breach,
nonperformance, cancellation or failure to renew would have a Material Adverse Effect other than
purchase orders made in the ordinary course of business and subject to customary terms.
(d) To the extent requested by the Agent, true and complete copies of each agreement listed on
the appropriate part of
Schedule 5.14
have been delivered to the Agent, together with all
amendments, waivers and other modifications thereto. All such agreements are valid, subsisting, in
full force and effect, are currently binding and will continue to be binding upon each Credit Party
that is a party thereto and, to the best knowledge of the Credit Parties, binding upon the other
parties thereto in accordance with their terms. The Credit Parties are not in default under any
such agreements, which default could have a Material Adverse Effect.
5.15
Federal Reserve Regulations
. No Credit Party is engaged principally or as one of its
important activities in the business of extending credit for the purpose of purchasing or carrying
margin stock (as defined in Regulation U of the Board). The making of the Loans hereunder, the use
of the proceeds thereof as contemplated hereby, and the security arrangements contemplated by the
Loan Documents, will not violate or be inconsistent with any of the provisions of Regulations T, U,
or X of the Board of Governors of the Federal Reserve System.
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5.16
Solvency
. As of the Effective Time and after giving effect to the initial Loans
hereunder and the other transactions contemplated hereby:
(a) the aggregate value of all properties of the Credit Parties at their present fair saleable
value on a consolidated, going concern basis (
i.e.
, the amount that may be realized within a
reasonable time, considered to be six months to one year, either through collection or sale at the
regular market value, conceiving the latter as the amount that could be obtained for such
properties within such period by a capable and diligent businessman from an interested buyer who is
willing to purchase under ordinary selling conditions), exceeds the amount of all the consolidated
debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities)
of the Credit Parties;
(b) the Credit Parties will not, on a consolidated basis, have an unreasonably small capital
with which to conduct their business operations as heretofore conducted; and
(c) the Credit Parties will have, on a consolidated basis, sufficient cash flow to enable them
to pay their debts as they mature.
5.17
Force Majeure
. Since December 31, 2007, the business, properties and other assets of the
Credit Parties have not been materially and adversely affected in any way as the result of any fire
or other casualty, strike, lockout or other labor trouble, embargo, sabotage, confiscation,
contamination, riot, civil disturbance, activity of armed forces or act of God.
5.18
Accounts Receivable
. Unless otherwise indicated to the Agent in writing:
(a) Each account receivable is genuine and in all respects what it purports to be, and it is
not evidenced by a judgment;
(b) Except with respect to accounts receivable arising out of project payments under long term
contracts, each account receivable arises out of a completed, bona fide sale and delivery of goods
or rendition of services by a Credit Party in the ordinary course of its business and in accordance
with the terms and conditions of all purchase orders, contracts or other documents relating thereto
and forming a part of the contract between such Credit Party and the account debtor, and, in the
case of goods, title to the goods has passed from the Credit Party to the account debtor;
(c) Except with respect to accounts receivable arising out of project payments under long term
contracts, each account receivable is for a liquidated amount maturing as stated in the duplicate
invoice covering such sale or rendition of services, a copy of which has been furnished or is
available to the Agent;
(d) Each account receivable is absolutely owing to one of the Credit Parties and is not
contingent in any respect or for any reason and the Agents security interest therein, is not, and
will not (by voluntary act or omission of the Credit Parties) be in the future, subject to any
offset, Lien, deduction, defense, dispute, counterclaim or any other adverse condition except for
disputes resulting in returned goods where the amount in controversy is deemed by the Agent to be
immaterial and Liens arising in the ordinary course of business under applicable law in favor of
subcontractors, materialmen and mechanics in respect of work performed in connection with such
account receivable;
provided
that the Credit Parties shall pay all amounts required to be
paid to any such subcontractor, materialman or mechanic in accordance with the terms of the
agreement relating to such account receiveable;
(e) No Credit Party has made any agreement with any account debtor for any extension,
compromise, settlement or modification of any account receivable or any deduction therefrom,
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except discounts or allowances which are granted by the Credit Parties in the ordinary course
of their businesses for prompt payment and which are reflected in the calculation of the net amount
of each respective invoice related thereto;
(f) To the best knowledge of the Credit Parties, the account debtor under each account
receivable had the capacity to contract at the time any contract or other document giving rise to
an account receivable was executed and such account debtor is not insolvent; and
(g) To the best knowledge of the Credit Parties, there are no proceedings or actions which are
threatened or pending against any account debtor which might result in any material adverse change
in such account debtors financial condition or the collectability of any account receivable.
5.19
Labor and Employment Matters.
(a) Except as set forth on
Schedule 5.19
as of the Effective Time, and thereafter with
respect to which such would have a Material Adverse Effect, (A) no employee of the Credit Parties
is represented by a labor union, no labor union has been certified or recognized as a
representative of any such employee, and the Credit Parties do not have any obligation under any
collective bargaining agreement or other agreement with any labor union or any obligation to
recognize or deal with any labor union, and there are no such contracts or other agreements
pertaining to or which determine the terms or conditions of employment of any employee of the
Credit Parties; (B) no Credit Party has knowledge of any pending or threatened representation
campaigns, elections or proceedings; (C) the Credit Parties do not have knowledge of any strikes,
slowdowns or work stoppages of any kind, or threats thereof, and no such activities occurred during
the 24-month period preceding the date hereof; and (D) no Credit Party has engaged in, admitted
committing or been held to have committed any unfair labor practice.
(b) Except as set forth on
Schedule 5.19
, the Credit Parties have at all times
complied in all material respects, and are in material compliance with, all applicable laws, rules
and regulations respecting employment, wages, hours, compensation, benefits, and payment and
withholding of taxes in connection with employment.
(c) Except as set forth on
Schedule 5.19
, except as could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, the Credit Parties have at
all times complied with, and are in compliance with, all applicable laws, rules and regulations
respecting occupational health and safety, whether now existing or subsequently amended or enacted,
including, without limitation, the Occupational Safety & Health Act of 1970, 29 U.S.C. Section 651
et seq. and the state analogies thereto, all as amended or superseded from time to time, and any
common law doctrine relating to worker health and safety.
5.20
Bank Accounts
.
Schedule 5.20
lists all banks and other financial institutions at
which any Credit Party maintains deposits and/or other accounts as of the Restatement Date, and
such Schedule correctly identifies the name and address of each depository, the name in which the
account is held, a description of the purpose of the account, and the complete account number.
5.21
Matters Relating to the Special Purpose Subsidiaries
. Except for Cost Overrun and
Completion Guaranties and Renewable Energy Project Guaranties permitted hereunder, no Credit Party
is obligated under any Indebtedness or other obligation of any Special Purpose Subsidiary. The
Hawaii Joint Venture does not conduct any business other than the construction and operation of the
Hawaii Project.
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5.22
Matters Relating to Inactive Subsidiaries
. No Inactive Subsidiary (i) owns or otherwise
holds any property or other assets or (ii) conducts any business.
5.23
OFAC
. No Credit Party, nor any Subsidiary of any Credit Party (i) is a person whose
property or interest in property is blocked or subject to blocking pursuant to Section 1 of
Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii)
engages in any dealings or transactions prohibited by Section 2 of such executive order, or is
otherwise associated with any such person in any manner violative of Section 2, or (iii) is a
person on the list of Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other U.S. Department of Treasurys Office of Foreign Assets
Control regulation or executive order. The regulations and executive orders described in clauses
(i) through (iii) of the preceding sentence are referred to herein as
OFAC Regulations
.
5.24
Patriot Act
. The Credit Parties are in compliance, in all material respects, with the
(i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other
enabling legislation or executive order relating thereto (collectively, the
FAC
Regulations
), and (ii) the Patriot Act. No part of the proceeds of the Loans will be used,
directly or indirectly, for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended (the
FCPA
).
ARTICLE VI
Conditions
6.1
Effective Time
. The obligations of the Revolving Credit Lenders to make Revolving Loans
and of the Issuing Lender to issue Letters of Credit hereunder shall not become effective until the
date on which each of the following conditions is satisfied (or waived in accordance with Section
11.2):
(a)
Counterparts of Agreement
. The Agent shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Agent (which may include telecopy or electronic transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b)
Notes
. The Agent shall have received a duly completed and executed Revolving
Credit Note for the account of each Revolving Credit Lender and a duly completed and executed Swing
Loan Note in the principal amount of the Swing Loan Commitment for the account of the Swing Loan
Lender.
(c)
Organizational Structure
. The corporate organizational structure, capitalization
and ownership of the Borrower and its Subsidiaries shall be as set forth on
Schedules 5.12
and
5.13
annexed hereto. The Agent shall have had the opportunity to review, and shall be
satisfied with, the Credit Parties state and federal tax assumptions, and the ownership, capital,
organization and structure of the Credit Parties.
(d)
Existence and Good Standing
. The Agent shall have received such documents and
certificates as the Agent or Special Counsel may reasonably request relating to the organization,
existence and good standing of each Credit Party, the authorization of the transactions
contemplated
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hereby and any other legal matters relating to the Credit Parties, this Agreement or the other
Loan Documents, all in form and substance reasonably satisfactory to the Agent and Special Counsel.
(e)
Security Interests in Personal and Mixed Property
. The Agent shall have received
evidence satisfactory to it that the Credit Parties shall have taken or caused to be taken (or
authorized the Agent to take or cause to be taken) all such actions, executed and delivered or
caused to be executed and delivered all such agreements, documents and instruments and made or
caused to be made all such filings and recordings (other than filings or recordings to be made by
the Agent on or after the Restatement Date) that may be necessary or, in the opinion of the Agent,
desirable in order to create in favor of the Agent, for the benefit of the Lenders, valid and (upon
such filing and recording) perfected First Priority security interests in the entire personal and
mixed property Collateral.
(f)
Evidence of Insurance
. The Agent shall have received certificates from the Credit
Parties insurance brokers that all insurance required to be maintained pursuant to Section 7.5 is
in full force and effect and that the Agent on behalf of the Lenders has been named as additional
insured or loss payee thereunder to the extent required under Section 7.5.
(g)
Necessary Governmental Permits, Licenses and Authorizations and Consents; Etc
.
The Credit Parties shall have obtained all other permits, licenses, authorizations and consents
from all other Governmental Authorities and all consents of other Persons with respect to Material
Indebtedness, Liens and material agreements listed on
Schedule 5.14
(and so identified
thereon) annexed hereto, in each case that are necessary or advisable in connection with the
transactions contemplated by the Loan Documents, and each of the foregoing shall be in full force
and effect, in each case other than those the failure to obtain or maintain which, either
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect. No action, request for stay, petition for review or rehearing, reconsideration or appeal
with respect to any of the foregoing shall be pending, and the time for any applicable Governmental
Authority to take action to set aside its consent on its own motion shall have expired.
(h)
Amendment of Subordinated Note
. The Subordinated Note shall have been amended to
provide that the maturity date of the Subordinated Note shall occur no earlier than 180 days after
the Revolving Credit Maturity Date, and such Subordinated Note, as amended, shall be in form and
substance satisfactory to the Agent.
(i)
Subordination Agreement
. George Sakellaris and each of the Credit Parties shall
have executed and delivered to the Agent a Confirmation of and Amendment to Subordination Agreement
in form and substance reasonably acceptable to the Agent, confirming the terms of the Subordination
Agreement and containing such amendments to the Subordination Agreement as the Agent shall
reasonably deem necessary.
(j)
Existing Debt; Liens
. The Agent shall have received evidence that all principal,
interest, and other amounts owing in respect of all Existing Debt of the Credit Parties (other than
Indebtedness permitted to remain outstanding in accordance with Section 8.1 hereof) will be repaid
in full as of the Effective Time, and that with respect to all Indebtedness permitted to remain
outstanding in accordance with Section 8.1 hereof, any defaults or events of default existing as of
the Restatement Date with respect to such Indebtedness will be cured or waived immediately
following the funding of the initial Loans. The Agent shall have received evidence that as of the
Effective Time, the Property of the Credit Parties is not subject to any Liens (other than Liens in
favor of the Agent and Liens permitted to remain outstanding in accordance with Section 8.2
hereof).
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(k)
Financial Statements; Projections
. The Agent shall have received the certified
financial statements and projections referred to in Section 5.4 hereof and the same shall not be
inconsistent with the information previously provided to the Agent.
(l)
Solvency Certificate
. The Agent shall have received a certificate, dated the
Restatement Date and signed by a Designated Financial Officer, substantially in the form of
Exhibit I
attached hereto.
(m)
Financial Officer Certificate
. The Agent shall have received a certificate, dated
the Restatement Date and signed by a Designated Financial Officer, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 6.2 at the Effective Time.
(n)
No Material Adverse Change
. There shall have occurred no material adverse change
(in the reasonable opinion of the Agent) in the businesses, operations, properties (including
tangible properties), or conditions (financial or otherwise), assets, liabilities or income of the
Credit Parties.
(o)
Opinion of Counsel to Credit Parties
. The Agent shall have received favorable
written opinions (addressed to the Agent and dated the Restatement Date) of (i) Choate, Hall &
Stewart, special counsel to the Credit Parties, substantially in the form of
Exhibit I
annexed hereto and covering such matters relating to the Credit Parties, this Agreement, the other
Loan Documents or the transactions contemplated hereby as the Agent shall reasonably request and
(ii) local counsel to the Credit Parties in the following jurisdictions: North Carolina, Nevada,
Kentucky, Tennessee, Texas and Ontario, Canada.
(p)
Control Agreements
. The Credit Parties shall have delivered to the Agent a
Control Agreement duly executed by each financial institution at which any Credit Party maintains
deposit or other accounts.
(q)
Fees and Expenses
. The Agent and the Issuing Lender shall have received all
reasonable fees and other amounts due and payable to such Person and Special Counsel at or prior to
the Effective Time, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(r)
Other Documents
. The Agent shall have received all material contracts,
instruments, opinions, certificates, assurances and other documents as the Agent or any Lender or
Special Counsel shall have reasonably requested and the same shall be reasonably satisfactory to
each of them.
Without limiting the generality of Section 10.3, for purposes of determining compliance with the
conditions specified in this Section 6.1, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each document or other
matter required thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Agent shall have received notice from such Lender prior to Effective Time
specifying its objection thereto.
6.2
Each Extension of Credit
. The obligation of each Lender to make a Loan on the occasion of
any Borrowing, and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit, is
subject to the satisfaction of the following conditions:
(a)
Representations and Warranties
. The representations and warranties of each Credit
Party set forth in this Agreement and the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Borrowing, or (as applicable) the date of issuance,
amendment, renewal or extension of such Letter of Credit, both before and after giving effect
thereto and
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to the use of the proceeds thereof (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, such representation or warranty shall be or have
been true and correct as of such specific date and provided that, to the extent any change in
circumstances expressly permitted by this Agreement causes any representation and warranty set
forth herein to no longer be true, such representation and warranty shall be deemed modified to
reflect such change in circumstances).
(b)
No Defaults
. At the time of, and immediately after giving effect to, such
Borrowing, or (as applicable) the date of issuance, amendment, renewal or extension of such Letter
of Credit, no Default under Section 9.1(a)(ii) or Event of Default shall have occurred and be
continuing and no Material Adverse Effect shall have occurred or result therefrom.
ARTICLE VII
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, each Credit
Party covenants and agrees with the Agent and the Lenders that:
7.1
Financial Statements and Other Information
. The Credit Parties will furnish to the Agent
and each Lender:
(a) as soon as available and in any event within 120 days after the end of each fiscal year of
the Credit Parties:
(i) consolidated statements of operations, shareholders equity and cash flows of the
Borrower and its Subsidiaries for such fiscal year and the related consolidated balance
sheets of the Borrower and its Subsidiaries as at the end of such fiscal year, setting forth
in each case in comparative form the corresponding consolidated figures for the preceding
fiscal year; provided that the consolidated statements of operations, shareholders equity
and cash flows of the Borrower and its Subsidiaries and the consolidated balance sheets of
the Borrower and its Subsidiaries for any such fiscal year shall present separately the
results of the Core Ameresco Companies (taken as a whole) for such fiscal year, and
(ii) an opinion of independent certified public accountants of recognized national
standing (without a going concern or like qualification or exception and without any
qualification or exception as to the scope of such audit) stating that the consolidated
financial statements referred to in the preceding clause (i) fairly present in all material
respects the consolidated financial condition and results of operations of the Credit
Parties and their Subsidiaries as at the end of, and for, such fiscal year in accordance
with GAAP.
(b) as soon as available and in any event within 45 days after the end of each fiscal quarter:
(i) consolidated and consolidating statements of operations, shareholders equity and
cash flows of the Borrower and its Subsidiaries for such fiscal quarter and for the period
from the beginning of the respective fiscal year to the end of such fiscal quarter, and the
related consolidated and consolidating balance sheets of the Borrower and its Subsidiaries
as at the end of such period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding period in the preceding fiscal
year, and the
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corresponding figures for the forecasts most recently delivered to the Agent for such
period;
provided
that the consolidated statements of operations, shareholders
equity and cash flows of the Borrower and its Subsidiaries and the consolidated balance
sheets of the Borrower and its Subsidiaries for any such fiscal period shall present
separately the results of the Core Ameresco Companies (taken as a whole) for such fiscal
period, and
(ii) a certificate of a Designated Financial Officer, which certificate shall state
that said consolidated financial statements referred to in the preceding clause (i) fairly
present in all material respects the consolidated financial condition and results of
operations of the Borrower and its Subsidiaries and that said consolidating financial
statements referred to in the preceding clause (i) fairly present the respective individual
unconsolidated financial conditions and results of operations of the Borrower and each
Subsidiary, in each case in accordance with GAAP, consistently applied, as at the end of,
and for, such period (subject to normal year-end audit adjustments and the omission of
footnotes);
(c) as soon as available and in any event within (i) 45 days after the end of each fiscal
quarter a Compliance Certificate duly executed by a Designated Financial Officer with respect to
the quarterly financial statements delivered pursuant to subsection 7.1(b) above, and (ii) within
120 days after the end of each fiscal year, a Compliance Certificate duly executed by a Designated
Financial Officer with respect to the annual financial statements delivered pursuant to subsection
7.1 (a) above, together with, in the case of each of clauses (i) and (ii) of this subsection (c),
such supporting financial information with respect to the Core Ameresco Companies as shall be
reasonably acceptable to the Agent;
(d) as soon as available and in any event no later than 1:00 p.m. (Boston time) on each day
that the Borrower makes any request for any Borrowing hereunder, an Advance Request in the form
attached hereto as
Exhibit B
;
(e) as soon as available and in any event within 60 days after the end of each fiscal year of
the Credit Parties, statements of forecasted consolidated and consolidating income and cash flows
for the Credit Parties for each fiscal month in such fiscal year and a forecasted consolidated and
consolidating balance sheet of the Credit Parties as of the last day of each fiscal month in such
fiscal year, together with supporting assumptions which were reasonable when made, all prepared in
good faith in reasonable detail and consistent with the Credit Parties past practices in preparing
projections and otherwise reasonably satisfactory in scope to the Agent;
(f) promptly upon receipt thereof, copies of all management letters and accountants letters
received by the Credit Parties; and
(g) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Credit Parties, or compliance with the terms of
this Agreement, as the Agent or any Lender may reasonably request.
Borrower hereby acknowledges that (a) the Agent will make available to the Lenders and the Issuing
Lender materials and/or information provided by or on behalf of the Borrower hereunder
(collectively,
Borrower Materials
) by posting Borrower Materials on IntraLinks or another
similar electronic system (the
Platform
) and (b) certain of the Lenders (each, a
Public Lender
) may have personnel who do not wish to receive material non-public
information with respect to the Borrower or its Affiliates or the respective securities of any of
the foregoing, and who may be engaged in investment and other market-related activities with
respect to such Persons securities. The Borrower hereby agrees that, to the extent that and, so
long as, the Borrower is the issuer of any outstanding debt or equity securities that are
registered or issued pursuant to a private offering or is actively contemplating issuing any such
securities
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(w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC shall appear
prominently on the first page thereof; (x) by marking Borrower Materials PUBLIC, Borrower shall
be deemed to have authorized the Agent, the Issuing Lender and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to the Borrower or its
securities for purposes of United States Federal and state securities laws (provided, however, that
to the extent such Borrower Materials constitute confidential information (as described in Section
11.14), they shall be treated as set forth in Section 11.14); (y) all Borrower Materials marked
PUBLIC are permitted to be made available through a portion of the Platform that is designated
Public Side Information; and (z) the Agent shall be entitled to treat any Borrower Materials that
are not marked PUBLIC as being suitable only for posting on a portion of the Platform not
designated Public Side Information. Notwithstanding the foregoing, the Borrower shall be under no
obligation to mark any Borrower Materials PUBLIC.
7.2
Notices of Material Events
. The Credit Parties will furnish to the Agent prompt written
notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting any Credit Party or Affiliate that could reasonably
be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event related to the Plan of any Credit Party or knowledge
after due inquiry of any ERISA Event related to a Plan of any other ERISA Affiliate that, alone or
together with any other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Credit Parties in an aggregate amount exceeding $500,000; and
(d) any other development (including, without limitation, any default by a Credit Party under
or dispute under a task order or other government contract) that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 7.2 shall be accompanied by a statement of a Designated
Financial Officer setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
7.3
Existence; Conduct of Business
. Each Credit Party shall do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges and franchises material to the conduct of its business;
provided
that the foregoing shall not prohibit any merger, consolidation, liquidation,
dissolution or any discontinuance or sale of such business permitted under Section 8.4.
7.4
Payment of Obligations
. Each Credit Party shall pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall
become delinquent or in default, except where (a) the validity or amount thereof is being contested
in good faith by appropriate proceedings, (b) such Credit Party has set aside on its books adequate
reserves with respect thereto in accordance with GAAP, which reserves shall be acceptable to Agent,
and (c) the failure to make payment pending such contest could not reasonably be expected to result
in a Material Adverse Effect.
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7.5
Maintenance of Properties; Insurance
. Each Credit Party shall (a) keep and maintain all
property material to the conduct of its business in good working order and condition, ordinary wear
and tear excepted, and (b) maintain insurance, with financially sound and reputable insurance
companies, as may be required by law and such other insurance in such amounts and against such
risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations, including, without limitation, business interruption
insurance. Without limiting the generality of the foregoing, the Credit Parties will maintain or
cause to be maintained replacement value casualty insurance on the Collateral under such policies
of insurance, in each case with such insurance companies, in such amounts, with such deductibles,
and covering such terms and risks as are at all times satisfactory to the Agent in its commercially
reasonable judgment. All general liability and other liability policies with respect to the Credit
Parties shall name the Agent for the benefit of the Lenders as an additional insured thereunder as
its interests may appear, and all business interruption and casualty insurance policy shall contain
a loss payable clause or endorsement, satisfactory in form and substance to the Agent that names
the Agent for the benefit of the Lenders as the loss payee thereunder. All policies of insurance
shall provide for at least 30 days prior written notice to the Agent of any modifications or
cancellation of such policy.
7.6
Books and Records; Inspection Rights
. Each Credit Party shall keep proper books of record
and account in which entries are made of all dealings and transactions in relation to its business
and activities which fairly record such transactions and activities. Each Credit Party shall
permit any representatives designated by the Agent or any Lender to visit and inspect its
properties, to examine and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants as frequently as the Agent
deems appropriate
provided
that, so long as no Default has occurred and is continuing, all
such visits shall be on reasonable prior notice, at reasonable times during regular business hours
of such Credit Party and, unless a Default shall have occurred and be continuing, shall not occur
more than once per year, and
provided
further
that after the occurrence and during
the continuance of any Default, the Agent and any of the Lenders may visit at any reasonable time.
The Borrower shall reimburse the Agent for all examination and inspections costs, internal costs at
the customary rate charged by the Agent plus all out-of-pocket expenses incurred in connection with
such inspections,
provided
that, unless a Default shall have occurred and be continuing,
such costs and expenses shall not exceed $7,000 during any period of twelve (12) consecutive months
from and after the Restatement Date. The Credit Parties, in consultation with the Agent, will
arrange for a meeting to be held at least once every year (and after the occurrence and during the
continuance of a Default, more frequently, if requested by the Agent or the Required Lenders) with
the Lenders and the Agent hereunder at which the business and operations of the Credit Parties are
discussed.
7.7
Fiscal Year
. To enable the ready and consistent determination of compliance with the
covenants set forth in Section 8.10 hereof, the Credit Parties shall maintain their current fiscal
year and current method of determining the last day of the first three fiscal quarters in each
fiscal year.
7.8
Compliance with Laws
. Each Credit Party shall comply with (i) all permits, licenses and
authorizations, including, without limitation, environmental permits, licenses and authorizations,
issued by a Governmental Authority, (ii) all laws, rules, regulations and orders including, without
limitation, Environmental Laws, all OFAC Regulations, the Trading with the Enemy Act, the FAC
Regulations, the Patriot Act and the FCPA, of any Governmental Authority and (iii) all contractual
obligations, in each case applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
7.9
Use of Proceeds
. The proceeds of the Loans will be used only for (i) the refinancing of
existing indebtedness, (ii) fees and expenses incurred in connection with the transactions
contemplated by this Agreement, and (iii) for general corporate and working capital purposes of the
Credit Parties. No part
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of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including Regulations T, U and X.
7.10
Certain Obligations Respecting Subsidiaries; Additional Guarantors
.
(a) Except as otherwise permitted hereunder, each Credit Party will, and will cause each of
its Subsidiaries to, take such action from time to time as shall be necessary to ensure that the
percentage of the issued and outstanding shares of capital stock of any class or character owned by
it in any Subsidiary on the date hereof is not at any time decreased, other than by reason of
transfers to another Credit Party.
(b) Without limiting the obligation of the Borrower to obtain the consent of the Agent in
connection with any formation or acquisition of Subsidiaries not otherwise permitted hereunder, in
the event that any Person becomes a Subsidiary after the Restatement Date, the Borrower shall
promptly (i) notify the Agent of such new Subsidiary and (ii) provide to the Agent the information
required by Section 5.13 with respect to such Person. If such Person is engaged in business of the
type conducted by the Core Ameresco Domestic Companies, the Borrower shall, within 30 days, cause
such Person to (x) become a Guarantor hereunder by delivering to the Agent such joinder documents
as the Agent shall reasonably require and (y) deliver to the Agent documents of the types referred
to in clauses (d) and (e) of Section 6.1 and, if requested by the Agent in its reasonable
discretion, opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred to in clause
(x)), all in form and substance reasonably satisfactory to the Agent.
7.11
ERISA
. Except where a failure to comply with any of the following, individually or in
the aggregate, would not or could not reasonably be expected to result in a Material Adverse
Effect, (i) the Credit Parties will maintain, and cause each ERISA Affiliate to maintain, each Plan
in compliance with all applicable requirements of ERISA and of the Code and with all applicable
rulings and regulations issued under the provisions of ERISA and of the Code and (ii) the Credit
Parties will not and, to the extent authorized, will not permit any of the ERISA Affiliates to (a)
engage in any transaction with respect to any Plan which would subject any Credit Party to either a
civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the
Code, (b) fail to make full payment when due of all amounts which, under the provisions of any
Plan, any Credit Party or any ERISA Affiliate is required to pay as contributions thereto, or
permit to exist any accumulated funding deficiency (as such term is defined in Section 302 of ERISA
and Section 412 of the Code), whether or not waived, with respect to any Pension Plan or (c) fail
to make any payments to any Multiemployer Plan that any Credit Party or any of the ERISA Affiliates
may be required to make under any agreement relating to such Multiemployer Plan or any law
pertaining thereto.
7.12
Environmental Matters; Reporting
. The Credit Parties will observe and comply with, and
cause each Subsidiary to observe and comply with all Environmental Laws to the extent
non-compliance could reasonably be expected to have a Material Adverse Effect. The Credit Parties
will give the Agent prompt written notice of any violation as to any Environmental Law by any
Credit Party and of the commencement of any judicial or administrative proceeding relating to
Environmental Laws (a) in which an adverse result would have a material adverse effect on any
operating permits, air emission permits, water discharge permits, hazardous waste permits or other
environmental permits held by any Credit Party, or (b) which will, or is likely to, have a Material
Adverse Effect on such Credit Party or which will require a material expenditure by such Credit
Party to cure any alleged problem or violation.
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7.13
Matters Relating to Additional Real Property Collateral
.
(a) From and after the Effective Time, in the event that any Credit Party acquires any
Material Owned Property that the Agent determines is an Additional Mortgaged Property or in the
event that the Agent determines that any Real Property Asset has become an Additional Mortgaged
Property, the Borrower shall deliver, to the Agent, as soon as practicable after the Agent has
notified the Borrower that a Real Property Asset is an Additional Mortgaged Property, fully
executed and notarized Mortgages (
Additional Mortgages
), in proper form for recording in
all appropriate places in all applicable jurisdictions, encumbering the interest of the applicable
Credit Party in such Additional Mortgaged Property, together with mortgagee title insurance
policies or commitments therefor, and copies of all surveys, deeds, title exception documents,
flood hazard certificates and other documents as the Agent may reasonably require copies of all
deeds with respect to such Additional Mortgaged Property.
(b) From and after the Effective Time, in the event that any Credit Party enters into any
lease with respect to any Material Leasehold Property, the Borrower shall deliver to the Agent
copies of the lease, and all amendments thereto, between the Credit Party and the landlord or
tenant, together with a Landlords Waiver and Consent with respect thereto and where required by
the terms of any lease, the consent of the mortgagee, ground lessor or other party.
(c) If requested by the Agent, the Credit Parties shall permit an independent real estate
appraiser satisfactory to the Agent, upon reasonable notice, to visit and inspect any Additional
Mortgaged Property for the purpose of preparing an appraisal of such Additional Mortgaged Property
satisfying the requirements of all applicable laws and regulations (in each case to the extent
required under such laws and regulations as determined by the Agent in its sole discretion).
ARTICLE VIII
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed, each Credit Party
covenants and agrees with the Agent and the Lenders that:
8.1
Indebtedness
. The Credit Parties will not, and will not permit any Foreign Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Existing Indebtedness on the Restatement Date which is set forth in Schedule 8.1 and has
been designated on such schedule as Indebtedness that will remain outstanding following the funding
of the initial Loans, and any extension, renewal, refunding or replacement of any such Indebtedness
that does not increase the principal amount thereof;
(c) Intercompany loans among the Core Domestic Ameresco Companies;
(d) other Indebtedness incurred after the Restatement Date (determined on a consolidated basis
without duplication in accordance with GAAP) consisting of Capital Lease Obligations and/or secured
by Liens permitted under Section 8.2(h), in an aggregate principal amount at any time outstanding
not in excess of $1,000,000 less the aggregate outstanding principal amount of Indebtedness
incurred pursuant to subsection (n) of this Section 8.1;
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(e) Subordinated Indebtedness;
(f) Guarantees permitted under section 8.3;
(g) Indebtedness incurred by any Credit Party under an Energy Conservation Project Financing
(including, without limitation, Indebtedness incurred by the Credit Parties under an Energy
Conservation Project Financing existing as of the Restatement Date and set forth on
Schedule
8.1
attached hereto) in an aggregate principal amount outstanding at any time not in excess of
$225,000,000;
(h) Other unsecured Indebtedness in an aggregate principal amount at any time outstanding not
in excess of $1,000,000 less the aggregate outstanding principal amount of Indebtedness incurred
pursuant to subsection (d) of this Section 8.1;
(i) Indebtedness of the Hawaiian Joint Venture to any Credit Party in an aggregate principal
amount not to exceed $1,000,000 outstanding at any time;
(j) Indebtedness of the Canadian Subsidiaries to any Credit Party in an aggregate principal
amount not to exceed $5,000,000 outstanding at any time; and
(k) 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.
8.2 Liens. The Credit Parties will not, and will not permit any Foreign Subsidiary to,
create, incur, assume or permit to exist any Lien on any Property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except (the following being called
Permitted Liens
):
(a) Liens created hereunder or under the other Loan Documents;
(b) any Lien on any property or asset of any Credit Party existing on the date hereof and set
forth in
Schedule 8.1
(excluding, however, following the making of the initial Loans
hereunder, the Liens in favor of any Person other than the Agent securing Indebtedness not
designated on said schedule as Indebtedness to remain outstanding following the funding of the
initial Loans),
provided
that (i) such Lien shall not apply to any other property or asset
of any Credit Party and (ii) such Lien shall secure only those obligations which it secures on the
date hereof and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(c) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet
delinquent or (in the case of property taxes and assessments not exceeding $100,000 in the
aggregate more than 90 days overdue) which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the books of the applicable
Credit Party in accordance with GAAP and which reserves shall be acceptable to the Agent;
(d) landlords, carriers, warehousemens, mechanics, materialmens, repairmens or other
like Liens, and vendors Liens imposed by statute or common law not securing the repayment of
Indebtedness, arising in the ordinary course of business which are not overdue for a period of more
than 60 days or which are being contested in good faith and by appropriate proceedings and Liens
securing judgments (including, without limitation, pre-judgment attachments) but only to the extent
for an amount and for a period not resulting in an Event of Default under Section 9.1(j) hereof;
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(e) pledges or deposits under workers compensation, unemployment insurance and other social
security legislation and pledges or deposits to secure the performance of bids, tenders, trade
contracts (other than for borrowed money), leases (other than capital leases), utility purchase
obligations, statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business and encumbrances consisting of zoning restrictions, easements,
licenses, restrictions on the use of Property or minor imperfections in title thereto which, in the
aggregate, are not material in amount, and which do not, in the aggregate, materially detract from
the value of the Property of any Credit Party or materially interfere with the ordinary conduct of
the business of any Credit Party;
(g) Liens consisting of bankers liens and rights of setoff, in each case, arising by
operation of law, and Liens on documents presented in letter of credit drawings;
(h) Liens on fixed or capital assets, including real or personal property, acquired,
constructed or improved by any Credit Party,
provided
that (A) such Liens secure
Indebtedness (including Capital Lease Obligations) permitted by Section 8.1 (d), (B) such Liens and
the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement or were in effect at the time the Credit Parties
acquired the assets or stock, (C) the Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets, and (D) such security interests
shall not apply to any other property or assets of the Credit Parties;
(i) Liens on equity interests of any Special Purpose Subsidiary held by any Credit Party
(other than the Hawaii Joint Venture);
provided
that such Liens do not encumber any other
property or assets of any of the Credit Parties; and
(j) Liens on Energy Conservation Financing Collateral in connection with an Energy
Conservation Financing and Liens securing Indebtedness permitted under Section 8.1(h);
provided
that, in each case, such Liens do not encumber any other property or assets of any
of the Credit Parties.
8.3
Contingent Liabilities
. The Credit Parties will not, and will not permit any Foreign
Subsidiary to, Guarantee the Indebtedness or other obligations of any Person, or Guarantee the
payment of dividends or other distributions upon the stock of, or the earnings of, any Person,
except:
(a) endorsements of negotiable instruments for deposit or collection or similar transactions
in the ordinary course of business;
(b) Guarantees and letters of credit in effect on the date hereof which are disclosed in
Schedule 8.1
, and any replacements thereof in amounts not exceeding such Guarantees;
(c) Guarantees of any Indebtedness permitted under Sections 8.1 (a), (c), (d), (e), (g) and
(i);
(d) Guarantees of any Indebtedness permitted under Section 8.1 (b) (other than Indebtedness
incurred by any Special Purpose Subsidiary);
(e) obligations in respect of Letters of Credit;
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(f) any Construction Completion and Cost Overrun Guaranty delivered by the Borrower in
connection with a Renewable Energy Project; and
(g) any Renewable Energy Project Guaranty delivered by the Borrower in connection with a
Renewable Energy Project,
provided
, however that:
(i) one or more of the Core Domestic Ameresco Companies or Renewable Energy
Subsidiaries shall control the operation and maintenance of the Renewable Energy Project
during the term of the renewable energy purchase agreement with respect to such Renewable
Energy Project;
(ii) in connection with any delivery of a Renewable Energy Project Guaranty to a
purchaser of landfill gas or energy derived from landfill gas, sunlight, wind or biomass,
the credit rating or other credit quality of such purchaser shall be reasonably satisfactory
to the Agent;
(iii) in connection with any delivery of a Renewable Energy Project Guaranty to an
owner of a landfill or other property used for a Renewable Energy Project, such landfill or
other property owner shall have a business reputation reasonably satisfactory to the Agent;
and
(iv) in connection with the delivery of any Renewable Energy Project Guaranty, the
Borrower shall deliver to the Agent (A) prior to the delivery of such Renewable Energy
Project Guaranty, a certificate executed by the Chief Financial Officer of the Borrower
certifying (based upon such consultation with the Borrowers independent certified public
accountants as the Borrower shall reasonably deem appropriate) that, in accordance with
GAAP, such Renewable Energy Project Guaranty will not result in the accrual of a liability
upon the consolidated balance sheet of the Core Ameresco Companies for the fiscal period
during which such Renewable Energy Project Guaranty is delivered; (B) a copy of such
Renewable Energy Project Guaranty and all other documents related thereto; and (C) such
other information or reports as the Agent may reasonably request with respect to such
Renewable Energy Project Guaranty.
8.4
Fundamental Changes; Asset Sales
.
(a) No Credit Party will enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution).
No Credit Party will acquire any business or property from, or capital stock of, or other equity
interests in, or be a party to any acquisition of, any Person except for purchases of property to
be used in the ordinary course of business, Investments permitted under Section 8.5 and Capital
Expenditures. No Credit Party will form or acquire any Subsidiary, other than a Special Purpose
Subsidiary, without the express prior written consent of the Agent.
(b) No Credit Party will convey, sell, lease, transfer or otherwise dispose (including any
Disposition) of, in one transaction or a series of transactions, any part of its business or
property, whether now owned or hereafter acquired (including, without limitation, receivables and
leasehold interests, but excluding (x) the sale, transfer, assignment or other disposition of the
equity interests of a Special Purpose Subsidiary (other than the Hawaii Joint Venture), (y) other
asset sales resulting in aggregate Net Cash Proceeds not to exceed $1,000,000 after the Effective
Time) and (z) the sale, transfer, assignment or other disposition of a receivable in connection
with an Energy Conservation Project Financing, provided that (i) the Credit Parties may sublease
real property to the extent such sublease would not interfere with the operation of the business of
the Credit Parties, (ii) any Core Domestic
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Ameresco Company may convey, sell, lease, transfer or dispose of its assets or property
to any other Core Domestic Ameresco Company, and (iii) any Credit Party or Canadian Subsidiary may
convey, sell, transfer or otherwise dispose of a portion of the outstanding capital stock of any
other Canadian Subsidiary, so long as no Change of Control shall result therefrom.
(c) Notwithstanding the foregoing provisions of this Section 8.4:
(i) (i) any Credit Party may be merged or combined with or into any other Credit Party
(
provided
that if such merger involves the Borrower, (x) the Borrower shall be the
surviving entity and (y) no Change of Control shall occur); and
(ii) any Credit Party may sell, lease, transfer or otherwise dispose of any or all of
its property (upon voluntary liquidation or otherwise) to any other Credit Party.
(d) in addition to the formation and acquisition of Special Purpose Subsidiaries permitted
pursuant to subsection (a) of this Section 8.4 and subject to Sections 8.1, 8.2, 8.5 and the third
sentence of Section 8.4(a), the Credit Parties may acquire all or substantially all of the business
and assets of any corporation, partnership, limited liability company, or other entity located in
and organized under the laws of the United States or any state thereof (
Permitted
Acquisitions
), subject to satisfaction of the following conditions:
(i) with respect to such Permitted Acquisitions, the aggregate purchase price
(including, without limitation, any earn-out, non-compete, deferred compensation arrangement
or other amounts deferred, financed or withheld in respect of the purchase price for, the
amount of any Indebtedness assumed in connection with, and all fees and expenses incurred in
connection with, such Permitted Acquisition) shall not exceed (x) $5,000,000 for any single
Permitted Acquisition (or series of related Permitted Acquisitions) and (y) $10,000,000 in
the aggregate for all Permitted Acquisitions consummated during any fiscal year;
(ii) the business or assets so acquired shall be located in the United States and in
the same or a substantially similar line of business as that of the Credit Parties;
(iii) both immediately prior to and after giving effect to such Permitted Acquisition
on a pro-forma basis incorporating such pro-forma assumptions as are satisfactory to the
Agent in its reasonable discretion, the Credit Parties shall be in compliance with all
financial covenants set forth in Section 8.10 hereof and the Borrower shall deliver to the
Agent a Compliance Certificate demonstrating such compliance;
(iv) the assets so acquired shall be transferred free and clear of any Liens (other
than Liens permitted by Section 8.2) and no debt or liabilities shall be incurred,
guaranteed, assumed or combined except to the extent otherwise permitted by Section 8.1;
(v) the Agent shall have received Lien searches reasonably satisfactory to the Lender
with respect to the assets being acquired;
(vi) the Agent shall have received perfected Liens (subject only to Liens permitted by
Section 8.2) on substantially all of the assets being acquired in such Permitted
Acquisition, provided that such Liens shall not be required on any Property if (A) such
Liens are prohibited pursuant to any agreement binding on the Person owning such Property
and (B) the failure to obtain such Liens is not reasonably likely to have a Material Adverse
Effect on the rights of and remedies available to the Lender;
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(vii) to the extent requested by the Agent, the Agent shall have received an opinion of
counsel in each applicable jurisdiction reasonably satisfactory to it to the effect that the
Liens granted pursuant to this Agreement are perfected security interests in such assets and
as to such other matters as the Agent may reasonably require;
(viii) in connection with such Permitted Acquisition, the Credit Parties shall deliver
to the Agent (A) a copy of the purchase agreement pursuant to which such Permitted
Acquisition will be consummated; (B) a copy of each existing material agreement relating to
the assets to be acquired in such Permitted Acquisition and which is to be in effect after
the consummation of such Permitted Acquisition; (C) a Compliance Certificate calculating
compliance (as of the last day of the then most recently ended fiscal quarter) with the
covenants set forth in Section 8.10 on a
pro forma
basis, assuming such acquisition had
occurred prior to the first day of the earliest fiscal quarter included in the applicable
test period for calculating such compliance; (D) the Credit Parties shall use best efforts
to provide such other information or reports as the Lender may reasonably request with
respect to such Permitted Acquisition; (E) to the extent available to the Credit Parties,
historical financial statements (for the prior three fiscal years provided that if such
statements are not available for the prior three fiscal years, historical financial
statements for not less than the prior four fiscal quarters) of the entity whose assets are
being acquired; and (F) if the Borrower is acquiring any interest in real property, and if
required by the Agent, reports and other information in form, scope and substance reasonably
satisfactory to the Agent and prepared by environmental consultants reasonably satisfactory
to the Agent, concerning any environmental hazards or liabilities to which any Credit Party
is likely to be subject with respect to such acquired real property;
(ix) immediately prior to such Permitted Acquisition no Default shall have occurred and
be continuing and after giving effect to such Permitted Acquisition, no Default shall have
occurred and be continuing and no Material Adverse Effect shall result; and
(x) such acquisition shall be consensual and shall have been approved by the board of
directors or comparable governing body of the business so acquired.
8.5
Investments; Hedging Agreements
.
(a) The Credit Parties will not make or permit to remain outstanding any Investment,
(i) Investments consisting of Guarantees permitted by Section 8.3(e) and Indebtedness
permitted by Section 8.1, Intercompany Indebtedness among the Core Domestic Ameresco
Companies, Intercompany Indebtedness between the Credit Parties and the Hawaii Joint Venture
to the extent permitted pursuant to Section 8.1(i), Intercompany Indebtedness between the
Credit Parties and the Foreign Subsidiaries to the extent permitted pursuant to Sections
8.1(j) and (k), and capital contributions by any Core Domestic Ameresco Company to any other
Core Domestic Ameresco Company;
(ii) Permitted Investments;
(iii) Permitted Acquisitions;
(iv) Investments existing on the Restatement Date and set forth in
Schedule 8.5
hereto;
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(v) Checking and deposit accounts with banks used in the ordinary course of business
maintained with depository institutions that have executed Control Agreements; and
(vi) Investments by the Credit Parties in Renewable Energy Subsidiaries;
provided
, that at the time of each such Investment and after giving effect thereto,
(i) no Event of Default shall have occurred and be continuing and (ii) the Credit Parties
shall be in pro forma compliance with all financial covenants set forth in Section 8.10.
(b) The Credit Parties will not enter into any Hedging Agreement, other than as required
hereunder and Hedging Agreements entered into in the ordinary course of business with the prior
written consent of the Agent to hedge or mitigate risks to which the Credit Parties are exposed in
the conduct of their business or the management of their liabilities.
8.6
Restricted Junior Payments
. The Credit Parties will not declare or make any Restricted
Junior Payment at any time;
provided
, however, that (a) any Subsidiary of any Core Ameresco
Company may pay dividends to such Core Ameresco Company; (b) so long as no Default or Event of
Default has occurred and is continuing and no Default or Event of Default shall be caused thereby,
the Borrower may redeem or purchase (i) the capital stock or Equity Rights of any employee, officer
or director of any Credit Party for aggregate cash consideration not to exceed $1,000,000 in any
fiscal year and (ii) warrants or other equity interests held by Boston Capital for aggregate cash
consideration not in excess of $11,320,000 at any time from and after the Restatement Date; (c) so
long as no Default or Event of Default shall have occurred and be continuing and no Default or
Event of Default shall be caused thereby, the Borrower may declare and pay cash dividends,
provided
that (i) such payments shall be made only during the period commencing not earlier
than 10 days after and ending not later than 90 days after, the date of delivery of the audited
annual financial statements for the previous fiscal year required to be delivered by the Credit
Parties pursuant to Section 7.1 (a) hereof, together with the Compliance Certificate required to be
delivered pursuant to Section 7.1(c) hereof, and (ii) the Credit Parties shall have delivered to
the Agent evidence that after giving effect to such payment, the Credit Parties shall be in
projected pro-forma compliance with the financial covenants set forth in Section 8.10 hereof for
the period of four fiscal quarters occurring immediately after such payment; and (d) so long as no
Default under Section 9.1(a)(ii) or Event of Default shall have occurred and be continuing and no
Event of Default shall be caused thereby, the Credit Parties may make regularly scheduled payments
of interest but no principal in respect of Subordinated Indebtedness on the dates and in the
amounts set forth in the applicable Subordinated Debt Documents.
8.7
Transactions with Affiliates
. Except as expressly permitted by this Agreement, the Credit
Parties will not directly or indirectly (a) make any Investment in an Affiliate; (b) transfer,
sell, lease, assign or otherwise dispose of any property to an Affiliate; (c) merge into or
consolidate with an Affiliate, or purchase or acquire property from an Affiliate; or (d) enter into
any other transaction directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, guarantees and assumptions of obligations of an Affiliate);
provided
that:
(i) any Affiliate who is an individual may serve as a director, officer, employee or
consultant of any Credit Party, receive reasonable compensation for his or her services in
such capacity and benefit from Permitted Investments to the extent specified in clause (e)
of the definition thereof;
(ii) the Credit Parties may engage in and continue the transactions with or for the
benefit of Affiliates which are described in
Schedule 8.7
or are referred to in
Section 8.6 (but only to the extent specified in such section); and
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(iii) the Credit Parties may engage in transactions with Affiliates in the ordinary
course of business on terms which are no less favorable to the Credit Parties than those
likely to be obtained in an arms length transaction between a Credit Party and a
non-affiliated third party.
8.8
Restrictive Agreements
. The Credit Parties will not directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement (other than this Agreement) that
prohibits, restricts or imposes any condition upon (a) the ability of any Credit Party to create,
incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any
Credit Party that is a Subsidiary of another Credit Party to pay dividends or other distributions
with respect to any shares of its capital stock or other equity interests or to make or repay loans
or advances to any other Credit Party or to Guarantee Indebtedness of any other Credit Party;
provided
that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by this Agreement, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on
Schedule 8.8
(but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of stock or assets of a Subsidiary of a Credit Party pending
such sale,
provided
such restrictions and conditions apply only to the Subsidiary that is
to be sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply
to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property or assets securing
such Indebtedness, and (v) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts (excluding license agreements) restricting the assignment thereof.
8.9
Sale-Leaseback Transactions
. No Credit Party will directly or indirectly, enter into any
arrangements with any Person whereby such Credit Party shall sell or transfer (or request another
Person to purchase) any property, real, personal or mixed, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property from any Person.
8.10
Certain Financial Covenants
.
(a)
Minimum Profitability
. The Credit Parties shall not permit (i) the quarterly net
income of the Core Ameresco Companies (determined on a consolidated basis in accordance with GAAP)
for any two consecutive fiscal quarters to be less than $1, and (ii) the aggregate net income of
the Core Ameresco Companies (determined on a consolidated basis in accordance with GAAP) for any
period of four consecutive fiscal quarters to be less than $1.
(b)
Tangible Capital Base
. The Credit Parties shall not permit the Tangible Capital
Base as of (i) the end of each fiscal quarter ending during the period commencing on the
Restatement Date and ending on September 30, 2008 to be less than $15,000,000, (ii) the end of each
fiscal quarter ending during the period commencing on October 1, 2008 and ending on December 31,
2008 to be less than $20,000,000, and (iii) the end of each fiscal quarter thereafter, to be less
than the minimum Tangible Capital Base required to be satisfied by the Core Ameresco Companies as
of the last day of the fiscal year most recently ended plus 25% of the net income (without
reduction for losses) of the Core Ameresco Companies (determined on a consolidated basis without
duplication in accordance with GAAP) for the fiscal year most recently ended.
(c)
Minimum EBITDA
. The Credit Parties shall not permit EBITDA of the Core Ameresco
Companies for any period of four consecutive fiscal quarters to be less than $20,000,000.
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(d)
Total Funded Debt to EBITDA Ratio
. The Credit Parties shall not permit the ratio
of (a) Total Funded Debt of the Core Ameresco Companies at any time to (b) EBITDA of the Core
Ameresco Companies for the period of four consecutive fiscal quarters most recently ended prior to
such time, to exceed 2.00 to 1.00.
(e)
Debt Service Coverage Ratio
. The Credit Parties shall not permit the ratio of (a)
Cash Flow of the Core Ameresco Companies at any time for the period of four fiscal quarters most
recently ended prior to such time, to (b) Debt Service of the Core Ameresco Companies for such
period of four fiscal quarters, to be less than 1.50 to 1.00.
8.11
Lines of Business
. The Credit Parties and all Subsidiaries of the Credit Parties will
not engage to any substantial extent in any line or lines of business activity other than (i) the
types of businesses engaged in by the Credit Parties as of the Effective Time and businesses
substantially related thereto, and (ii) such other lines of business as may be consented to by the
Required Lenders and the Agent, which consents shall not be unreasonably withheld or delayed. The
Non-Core Energy Subsidiaries shall not engage in any line or lines of business activity other than
the construction and operation of Non-Core Energy Projects. None of the Funding Subsidiaries shall
engage in any line or lines of business activity other than business activities resulting from or
permitted pursuant to the Huntington Beach Receivables Financing. The Hawaii Joint Venture shall
not engage in any line or lines of business activity other than the construction and operation of
the Hawaii Project.
8.12
Other Indebtedness
. The Credit Parties will not purchase, redeem, retire or otherwise
acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary payment or
prepayment of the principal of or interest on, or any other amount owing in respect of any
Subordinated Indebtedness, except, to the extent permitted by Section 8.6.
8.13
Modifications of Certain Documents
. The Credit Parties will not consent to any
modification, supplement or waiver of any of the provisions of any documents or agreements
evidencing or governing any Subordinated Indebtedness or any other Existing Debt.
8.14
Transactions with Foreign Subsidiaries, Special Purpose Subsidiaries and Inactive
Subsidiaries
. Except as expressly permitted under this Agreement, no Credit Party shall take any
of the following actions: (a) make any loan, advance or investment in or to a Foreign Subsidiary,
Special Purpose Subsidiary or an Inactive Subsidiary; (b) transfer, sell, lease, assign, or
otherwise dispose of any property to a Foreign Subsidiary, Special Purpose Subsidiary or an
Inactive Subsidiary; (c) merge into or consolidate with a Foreign Subsidiary, Special Purpose
Subsidiary or an Inactive Subsidiary; or (d) enter into any other transaction directly or
indirectly with or for the benefit of a Foreign Subsidiary, Special Purpose Subsidiary or an
Inactive Subsidiary.
ARTICLE IX
Events of Default
9.1
Events of Default
. The occurrence of any of the following events shall be deemed to
constitute an
Event of Default
hereunder:
(a) the Credit Parties shall fail to pay to the Agent, the Issuing Lender, or the Lenders, (i)
any principal of any Loan when the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof, by acceleration of such due or prepayment date,
or otherwise or (ii) any interest or fees in respect of any Loan or any Reimbursement Obligation in
respect of
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any LC Disbursement or any other Obligation of the Credit Parties to the Agent, the Issuing
Lender, or the Lenders within three (3) Business Days after the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof, by acceleration of such
due or prepayment date, or otherwise;
(b) any representation or warranty made or deemed made by or on behalf of any Credit Party or
any Subsidiary in or in connection with this Agreement, any of the other Loan Documents or any
amendment or modification hereof or thereof, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement, any of the other Loan
Documents or any amendment or modification hereof or thereof, shall prove to have been incorrect in
any material respect when made or deemed made;
(c) the Credit Parties (i) shall fail to observe or perform any covenant, condition or
agreement contained in Sections 7.1, 7.2, 7.5, 7.6, 7.8, 7.9, 7.10, 7.12, 7.14, or in Article 8 (it
being expressly acknowledged and agreed that any Event of Default resulting from the failure of the
Credit Parties at any measurement date to satisfy any financial covenant set forth in Section 8.10
shall not be deemed to be cured or remedied by the Credit Parties satisfaction of such financial
covenant at any subsequent measurement date) or (ii) shall fail to observe or perform any other
covenant, condition or agreement contained in Sections 7.3, 7.4, 7.7, 7.11, or 7.13 and such
failure described in this clause (ii) shall continue unremedied for a period of 30 days after the
earlier of (x) actual knowledge by an officer of any Credit Party or (y) notice thereof from the
Agent (given at the request of any Lender) to the Credit Parties;
(d) the Credit Parties shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clauses (a), (b) or (c) of this Section
9.1) or any other Loan Document, and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Agent (at the request of any Lender) to the Credit Parties;
(e) the Credit Parties shall fail to make any payment (whether of principal, interest or
otherwise and regardless of amount) in respect of any Material Indebtedness or any Material Rental
Obligation, when and as the same shall become due and payable, after giving effect to any grace
period with respect thereto;
(f) any event or condition occurs that results in (i) any Material Indebtedness of any Credit
Party becoming due prior to its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity, or (ii) the lease with respect to any Material Rental Obligation of any Credit Party
being terminated prior to its scheduled expiration date or that enables or permits (with or without
the giving of notice, the lapse of time or both) the counterparty to such lease to cause such lease
to be terminated prior to its scheduled expiration date;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of any Credit Party or any
Material Canadian Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Credit Party or any Material Canadian Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be entered;
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(h) any Credit Party or any Material Canadian Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (g) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official
for any Credit Party or any Material Canadian Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for
the purpose of effecting any of the foregoing;
(i) any Credit Party or any Material Canadian Subsidiary shall become unable, admit in writing
or fail generally to pay its debts as they become due;
(j) a final judgment or judgments for the payment of money (x) in excess of $1,000,000 in the
aggregate (exclusive of judgment amounts fully covered by insurance where the insurer has admitted
liability in respect of such judgment) or (y) in excess of $2,500,000 in the aggregate (regardless
of insurance coverage), shall be rendered by one or more courts, administrative tribunals or other
bodies having jurisdiction against any Credit Party and the same shall not be discharged (or
provision shall not be made for such discharge), bonded, or a stay of execution thereof shall not
be procured, within 60 days from the date of entry thereof and the relevant Credit Party shall not,
within said period of 60 days, or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(k) an ERISA Event shall have occurred that, in the reasonable opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
(l) there shall occur any Change of Control;
(m) any of the following shall occur: (i) the Liens created hereunder or under the other Loan
Documents shall at any time (other than by reason of the Agent relinquishing such Lien) cease in
any material respect to constitute valid and perfected Liens on the Collateral intended to be
covered thereby; (ii) except for expiration in accordance with its respective terms, any Loan
Document shall for whatever reason be terminated, or shall cease to be in full force and effect; or
(iii) the enforceability of any Loan Document shall be contested by any Credit Party;
(n) there shall occur any material loss theft, damage or destruction of any Collateral not
fully covered (subject to such reasonable deductibles as the Agent shall have approved) by
insurance;
(o) any Guarantor shall assert that its obligations under any Loan Document shall be invalid
or unenforceable;
(p) the Credit Parties shall become liable for Renewable Energy Project Guaranty Liabilities
in an aggregate amount of $5,000,000 or greater, outstanding at any time.
9.2
Rights and Remedies Upon any Event of Default
. Upon the occurrence of any Event of
Default hereunder, then, and in every such event (other than an event described in clause (g) or
(h) of Section 9.1), and at any time thereafter during the continuance of such event, the Agent
may, and at the request of the Required Lenders shall, by notice to the Borrower, take any or all
of the following actions, at the same or different times: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, (ii) notify the Borrower that the
outstanding principal of the Loans shall bear
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interest at the Post-Default Rate, and thereupon the outstanding principal of the Loans shall
bear interest at the Post-Default Rate, (iii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared
to be due and payable, together with accrued interest thereon and all fees and other Obligations,
shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Credit Parties, and (iv) the Agent, the Issuing
Lender, and the Lenders may exercise all of the rights as secured party and mortgagee hereunder or
under the other Loan Documents; and in case of any event with respect to the Credit Parties or any
Subsidiary described in clause (g) or (h) of Section 9.1, the Commitments shall automatically
terminate, the principal of the Loans then outstanding shall automatically bear interest at the
Post-Default Rate, the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other Obligations shall automatically become due and payable, and the
Borrower shall provide cash collateral in accordance with Section 2.4(h) without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Credit Parties,
and the Agent, the Issuing Lender, and the Lenders shall be permitted to exercise such rights as
secured party and mortgagee hereunder or under the other Loan Documents to the extent permitted by
applicable law.
9.3
Receivership
. Without limiting the generality of the foregoing or limiting in any way the
rights of the Agent or the Lenders hereunder or under the other Loan Documents or otherwise under
applicable law, at any time after (i) the entire principal balance of any Loan shall have become
due and payable (whether at maturity, by acceleration or otherwise) and (ii) the Agent shall have
provided to the Borrower not less than ten (10) days prior written notice of its intention to
apply for a receiver, the Agent shall be entitled to apply for and have a receiver appointed under
state or federal law by a court of competent jurisdiction in any action taken by the Agent to
enforce the Lenders and the Agents rights and remedies hereunder and under the other Loan
Documents in order to manage, protect, preserve, sell and otherwise dispose of all or any portion
of the Collateral and continue the operation of the business of the Credit Parties, and to collect
all revenues and profits thereof and apply the same to the payment of all expenses and other
charges of such receivership, including the compensation of the receiver, and to the payment of the
Loans and other fees and expenses due hereunder and under the Loan Documents as aforesaid until a
sale or other disposition of such Collateral shall be finally made and consummated. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH CREDIT PARTY HEREBY IRREVOCABLY CONSENTS TO AND WAIVES ANY RIGHT
TO OBJECT TO OR OTHERWISE CONTEST THE APPOINTMENT OF A RECEIVER AS PROVIDED ABOVE. EACH CREDIT
PARTY (I) GRANTS SUCH WAIVER AND CONSENT KNOWINGLY AFTER HAVING DISCUSSED THE IMPLICATIONS THEREOF
WITH COUNSEL, (II) ACKNOWLEDGES THAT (A) THE UNCONTESTED RIGHT TO HAVE A RECEIVER APPOINTED FOR THE
FOREGOING PURPOSES IS CONSIDERED ESSENTIAL BY AGENT IN CONNECTION WITH THE ENFORCEMENT OF THE
LENDERS AND THE AGENTS RIGHTS AND REMEDIES HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS, AND (B)
THE AVAILABILITY OF SUCH APPOINTMENT AS A REMEDY UNDER THE FOREGOING CIRCUMSTANCES WAS A MATERIAL
FACTOR IN INDUCING THE LENDERS TO MAKE THE LOANS TO THE BORROWER; AND (III) AGREES TO ENTER INTO
ANY AND ALL STIPULATIONS IN ANY LEGAL ACTIONS, OR AGREEMENTS OR OTHER INSTRUMENTS IN CONNECTION
WITH THE FOREGOING AND TO COOPERATE FULLY WITH THE AGENT AND THE LENDERS IN CONNECTION WITH THE
ASSUMPTION AND EXERCISE OF CONTROL BY THE RECEIVER OVER ALL OR ANY PORTION OF THE COLLATERAL. THE
LENDERS AND AGENT ACKNOWLEDGE AND AGREE THAT NOTHING IN THIS SECTION 9.3 SHALL BE DEEMED TO
CONSTITUTE A WAIVER OF THE RIGHT OF CREDIT PARTIES TO FILE FOR PROTECTION UNDER TITLE 11 OF THE
UNITED STATES CODE AT ANY TIME.
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ARTICLE X
The Agent
10.1
Appointment and Authorization.
(a) Each of the Lenders and the Issuing Lender hereby irrevocably appoints the Agent as its
agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as
are delegated to the Agent by the terms of this Agreement and the other Loan Documents, together
with such actions and powers as are reasonably incidental thereto. The provisions of this Article
X are solely for the benefit of the Agent, the Lenders and the Issuing Lender, and, except with
respect to Section 10.6, neither the Borrower nor any Credit Party shall have rights as a third
party beneficiary of any such provisions.
(b) The Agent shall also act as the collateral agent under the Loan Documents and each of
the Lenders and the Issuing Lender hereby irrevocably appoints and authorizes the Agent to act as
the agent of such Lender and the Issuing Lender for purposes of acquiring, holding and enforcing
any and all Liens on Collateral granted by any of the Loan Parties to secure any of the
Obligations, together with such powers and discretion as are reasonably incidental thereto. In
this connection, the Agent, as collateral agent and any co-agents, sub-agents and
attorneys-in-fact appointed by the Agent pursuant to Section 10.5 or otherwise for purposes of
holding or enforcing any Lien on the Collateral (or any portion thereof) granted hereunder or under
any other Loan Document, or for exercising any rights and remedies thereunder at the direction of
the Agent), shall be entitled to the benefits of all provisions of this Article X and Article XI,
as though such co-agents, sub-agents and attorneys-in-fact were the collateral agent under the
Loan Documents as if set forth in full herein with respect thereto.
10.2
Agents Rights as Lender
. The Person serving as Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may exercise the same as
though it were not Agent and the term Lender or Lenders shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving as Agent hereunder
in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person
were not the Agent hereunder and without any duty to account therefor to the Lenders.
10.3
Duties As Expressly Stated
. Neither the Agent nor the Issuing Lender shall have any
duties or obligations except those expressly set forth in this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, (a) neither the Agent nor the Issuing
Lender shall be subject to any fiduciary or other implied duties, regardless of whether a Default
has occurred and is continuing, (b) neither the Agent nor the Issuing Lender shall have any duty to
take any discretionary action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated by this Agreement and the other Loan Documents that the Agent or
Issuing Lender is required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as is required hereunder with respect to such action) and (c) except as
expressly set forth herein and in the other Loan Documents, neither the Agent nor the Issuing
Lender shall have any duty to disclose, or shall be liable for the failure to disclose, any
information relating to any Credit Party or any of their respective Subsidiaries that is
communicated to or obtained by the financial institution serving as the Agent or the Issuing Lender
or any of its Affiliates in any capacity. Neither the Agent nor the Issuing Lender shall be liable
for any action taken or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as is required hereunder with respect to such
action) or all of the Lenders if expressly required, or in the absence of its own gross
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negligence or willful misconduct. Neither the Agent nor the Issuing Lender shall be deemed to
have knowledge of any Default other than a Default of the types specified in Section 9.1 (a) unless
and until written notice thereof is given to the Agent or the Issuing Lender by the Borrower or a
Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in, or in connection with, this Agreement or the
other Loan Documents, (ii) the contents of any certificate, report or other document delivered
hereunder or under any of the other Loan Documents or in connection herewith of therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, the other Loan Documents or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Agent or the
Issuing Lender. Neither the Agent nor the Issuing Lender shall, except to the extent the Agent
expressly instructed by the Required Lenders with respect to collateral security hereunder and
under the other Loan Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document; provided, however, that the Agent shall not
be required to take any action which exposes the Agent to personal liability or which is contrary
to the Loan Documents or applicable law.
10.4
Reliance By Agent
. The Agent and the Issuing Lender shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine and to have been
signed or sent by the proper Person. The Agent and the Issuing Lender also may rely upon any
statement made to it orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The Agent and the Issuing Lender may consult
with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts. The Agent and the Issuing Lender shall be
fully justified in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if
so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action (it being understood
that this provision shall not release the Agent from performing any action with respect to the
Borrower expressly required to be performed by it pursuant to the terms hereof) under this
Agreement. The Agent and the Issuing Lender shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in accordance with a
request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such
request and any action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
10.5
Action Through Sub-Agents
. The Agent and the Issuing Lender may perform any and all of
its duties, and exercise its rights and powers, by or through any one or more sub-agents appointed
by the Agent or the Issuing Lender. The Agent and the Issuing Lender and any such sub-agent may
perform any and all its duties and exercise its rights and powers through its Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of the Agent and the Issuing Lender and any such sub-agent, and shall apply to its
activities in connection with the syndication of the credit facilities provided for herein as well
as activities of the Agent or the Issuing Lender.
10.6
Resignation of Agent and Appointment of Successor Agent
. Subject to the appointment and
acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by
notifying the Lenders, the Issuing Lender and the Credit Parties. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Credit Parties, to appoint a
successor
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Agent. If no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may, on behalf of the Lenders and the Issuing Lender, appoint a successor
Agent, which shall be a bank with an office in Boston, Massachusetts or New York, New York, or an
Affiliate of any such bank. Upon the acceptance of a successors appointment as Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of
its duties and obligations hereunder or under the other Loan Documents. The fees payable by the
Borrower to a successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the retiring Agents resignation
hereunder and under the other Loan Documents, the provisions of this Article and Section 11.3 shall
continue in effect for the benefit of such retiring Agent, its sub- agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the
retiring Agent was acting as Agent.
Any resignation by Bank of America as Agent pursuant to this Section shall also constitute its
resignation as Issuing Lender and Swing Loan Lender. Upon the acceptance of a successors
appointment as Agent hereunder, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Issuing Lender and Swing Loan Lender, (b)
the retiring Issuing Lender and Swing Loan Lender shall be discharged from all of their respective
duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing
Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to the retiring Issuing
Lender to effectively assume the obligations of the retiring Issuing Lender with respect to such
Letters of Credit.
10.7
Lenders Independent Decisions
. Each Lender acknowledges that it has, independently and
without reliance upon the Agent, the Issuing Lender or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Issuing Lender or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement and the other Loan Documents, any
related agreement or any document furnished hereunder or thereunder. Except as explicitly provided
herein, neither the Agent nor the Issuing Lender has any duty or responsibility, either initially
or on a continuing basis, to provide any Lender with any credit or other information with respect
to such operations, business, property, condition or creditworthiness, whether such information
comes into its possession on or before the first Event of Default or at any time thereafter.
Neither the Agent nor the Issuing Lender shall be deemed a trustee or other fiduciary on behalf of
any party.
10.8
Indemnification
. Each Lender agrees to indemnify and hold harmless the Agent and the
Issuing Lender (to the extent not reimbursed under Section 11.3, but without limiting the
obligations of the Borrower under Section 11.3), ratably in accordance with the aggregate principal
amount of the respective Commitments of and/or Loans and Total LC Exposure held by the Lenders (or,
if all of the Commitments shall have been terminated or expired, ratably in accordance with the
aggregate outstanding amount of the Loans and Total LC Exposure held by the Lenders), for any and
all liabilities (including pursuant to any Environmental Law), obligations, losses, damages,
penalties, actions, judgments, deficiencies, suits, costs, expenses (including reasonable
attorneys fees) or disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against the Agent or the Issuing Lender (including by any Lender) arising
out of or by reason of any investigation in or in any way relating to or arising out of any Loan
Document or any other documents contemplated by or referred to therein for any action taken or
omitted to be taken by the Agent or the Issuing Lender under or in respect of any of the Loan
Documents or other such documents or the transactions contemplated thereby
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(including the costs and expenses that the Borrower is obligated to pay under Section 11.3,
but excluding, unless a Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the enforcement of any of
the terms hereof or thereof or of any such other documents; provided, however, that no Lender shall
be liable for any of the foregoing to the extent they are determined by a court of competent
jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of the party to be indemnified. The agreements set forth in this Section 10.8
shall survive the payment of all Loans and other obligations hereunder and shall be in addition to
and not in lieu of any other indemnification agreements contained in any other Loan Document.
10.9
No Other Duties, Etc.
Anything herein to the contrary notwithstanding, no Lender holding
a title listed on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as Agent,
a Lender or the Issuing Lender hereunder.
10.10
Agent May File Proofs of Claim
. In case of the pendency of any proceeding under any
Debtor Relief Law or any other judicial proceeding relative to any Credit Party, the Agent
(irrespective of whether the principal of any Loan or Reimbursement Obligation shall then be due
and payable as herein expressed or by declaration or otherwise and irrespective of whether the
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise.
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, Reimbursement Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of Lenders, the Issuing Lender and the Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the Issuing Lender and the Agent
and their respective agents and counsel and all other amounts due the Lenders, the Issuing Lender
and the Agent under Sections 2.10 and 11.3) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Agent and, in the event that the Agent shall consent to the making of such payments
directly to the Lenders and the Issuing Lender, to pay to the Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Agent and its agents and
counsel, and any other amounts due the Agent under Sections 2.10 and 11.3. Nothing contained
herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on
behalf of any Lender or the Issuing Lender any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or the Issuing Lender or to
authorize the Agent to vote in respect of the claim of any Lender or the Issuing Lender in any such
proceeding.
10.11
Guaranty Matters
. Each Lender and the Issuing Lender hereby irrevocably authorizes the
Agent, at its option and in its discretion, to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Agent at any time, each Lender and the Issuing Lender will confirm in writing
the Agents authority to release any Guarantor from its obligations under the Guaranty pursuant to
this Section 10.11.
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10.12
Collateral Matters
.
(a) Each Lender and the Issuing Lender hereby irrevocably authorizes and directs the Agent to
enter into the Collateral Documents for the benefit of such Lender and the Issuing Lender. Each
Lender and the Issuing Lender hereby agrees, and each holder of any Note by the acceptance thereof
will be deemed to agree, that, except as otherwise set forth in Section 11.2, any action taken by
the Required Lenders, in accordance with the provisions of this Agreement or the Collateral
Documents, and the exercise by the Required Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of Lenders and the Issuing Lender. The Agent is hereby authorized (but not
obligated) on behalf of all of Lenders and the Issuing Lender, without the necessity of any notice
to or further consent from any Lender or the Issuing Lender from time to time prior to, an Event of
Default, to take any action with respect to any Collateral or Collateral Documents which may be
necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to the
Collateral Documents.
(b) Each Lender and the Issuing Lender hereby irrevocably authorize the Agent, at its option
and in its discretion:
(i) to release any Lien on any property granted to or held by the Agent under any Loan
Document (A) upon termination of the Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration or termination of all
Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory
to Agent and the Issuing Lender shall have been made), (B) that is sold or to be sold as
part of or in connection with any sale permitted hereunder or under any other Loan Document,
(C) that is sold, transferred, assigned, financed or otherwise disposed of in connection
with an Energy Conservation Project or Renewable Energy Project, (D) subject to Section
11.2, if approved, authorized or ratified in writing by the Required Lenders, (E) in
connection with any foreclosure sale or other disposition of Collateral after the occurrence
of an Event of Default or (F) as otherwise provided under Section 11.13; and
(ii) to subordinate any Lien on any property granted to or held by the Agent under any
Loan Document to the holder of any Lien on such property that is permitted by this Agreement
or any other Loan Document.
Upon request by the Agent at any time, each Lender and the Issuing Lender will confirm in writing
the Agents authority to release or subordinate its interest in particular types or items of
Collateral pursuant to this Section 10.12.
(c) Subject to (b) above, the Agent is hereby irrevocably authorized by each Lender and the
Issuing Lender, to execute such documents as may be necessary to evidence the release or
subordination of the Liens granted to the Agent for the benefit of the Agent, the Lenders and the
Issuing Lender herein or pursuant hereto upon the applicable Collateral; provided that (i) the
Agent shall not be required to execute any such document on terms which, in the Agents opinion,
would expose the Agent to or create any liability or entail any consequence other than the release
or subordination of such Liens without recourse or warranty and (ii) such release or subordination
shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of the Borrower or any other Credit Party in respect of) all interests retained by the
Borrower or any other Credit Party, including the proceeds of the sale, all of which shall continue
to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any
foreclosure with respect to any of the Collateral, the Agent shall be authorized to deduct all
expenses reasonably incurred by the Agent from the proceeds of any such sale, transfer or
foreclosure.
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(d) The Agent shall have no obligation whatsoever to any Lender, the Issuing Lender or any
other Person to assure that the Collateral exists or is owned by the Borrower or any other Credit
Party or is cared for, protected or insured or that the Liens granted to the Agent herein or in any
of the Collateral Documents or pursuant hereto or thereto have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any particular priority, or
to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure
or fidelity any of the rights, authorities and powers granted or available to Agent in this Section
10.12 or in any of the Collateral Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may
deem appropriate, in its sole discretion, given the Agents own interest in the Collateral as one
of the Lenders and that the Agent shall have no duty or liability whatsoever to the Lenders or the
Issuing Lender.
(e) Each Lender and the Issuing Lender hereby appoints each other Lender as agent for the
purpose of perfecting the Lenders and the Issuing Lenders security interest in assets which, in
accordance with Article 9 of the UCC can be perfected only by possession. Should any Lender or the
Issuing Lender (other than the Agent) obtain possession of any such Collateral, such Lender or the
Issuing Lender shall notify the Agent thereof, and, promptly upon the Agents request therefor
shall deliver such Collateral to the Agent or in accordance with the Agents instructions.
ARTICLE XI
Miscellaneous
11.1
Notices
.
(a)
Notices, Generally
. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telephonic
facsimile (fax), as follows and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to any Credit Party, to Ameresco, Inc., 111 Speen Street, Suite 410, Framingham,
MA 01701, Attention: Chief Financial Officer (Fax no. (508) 661-2201) with a copy to
Choate, Hall & Stewart, Two International Place, Boston, Massachusetts 02110, Attention:
John F. Ventola (Fax no. ((617) 248-4000);
(ii) if to the Agent, to Bank of America, N.A., 100 Federal Street, Mail Stop
MA5-100-07-07, Boston, Massachusetts 02110, Attention: John F. Lynch (Fax no.: (617)
434-4896), with a copy to Edwards Angell Palmer & Dodge, LLP, 111 Huntington Avenue at
Prudential Center, Boston, MA 02119, Attention: George Ticknor, Esq. (Fax no. (617)
227-4420); and
(iii) if to any Lender (including Bank of America in its capacity as the Issuing
Lender), to it at its address (or fax number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt. Notices delivered through electronic communications to the extent provided
in subsection (b) below, shall be effective as provided in such subsection (b).
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(b)
Electronic Communications
. Notices and other communications to Lenders and the
Issuing Lender hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent, provided
that the foregoing shall not apply to notices to any Lender or the Issuing Lender pursuant to
Article II if such Lender or the Issuing Lender, as applicable has notified the Agent that it is
incapable of receiving notices under such Article by electronic communication. The Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications. Unless the Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received
upon the senders receipt of an acknowledgement from the intended recipient (such as by the return
receipt requested function, as available, return e-mail or other written acknowledgement),
provided that if such notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at the opening of
business on the next business day for the recipient, and (ii) notices or communications posted to
an Internet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address therefor.
(c)
The Platform
. THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF BORROWER MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER
MATERIALS OR THE PLATFORM. In no event shall the Agent or any of its Related Parties
(collectively, the Agent Parties) have any liability to the Borrower, any Lender, the Issuing
Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrowers or the Agents transmission
of Borrower Materials through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event
shall any Agent Party have any liability to the Borrower, any Lender, the Issuing Lender or any
other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).
(d)
Change of Address, Etc
. Each of the Borrower, the Agent, the Issuing Lender and
Swing Loan Lender may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may change its
address, telecopier or telephone number for notices and other communications hereunder by notice to
the Borrower, the Agent, the Issuing Lender and Swing Loan Lender. In addition, each Lender agrees
to notify the Agent from time to time to ensure that the Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such
Public Lender to at all times have selected the Private Side Information or similar designation
on the content declaration screen of the Platform in order to enable such Public Lender or its
delegate, in accordance with such Public Lenders compliance procedures and applicable Law,
including United States Federal and state securities Laws, to make reference to Borrower Materials
that are not made available through the Public Side Information portion of the Platform and that
may contain material non-public information with respect to the Borrower or its securities for
purposes of United States Federal or state securities laws.
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(e)
Reliance by Agent, Issuing Lender and Lenders
. The Agent, the Issuing Lender and
the Lenders shall be entitled to rely and act upon any notices (including telephonic Advance
Requests) purportedly given by or on behalf of the Borrower even if (i) such notices were not made
in a manner specified herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Agent, the Issuing Lender, each Lender and
the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Agent may be recorded by the
Agent, and each of the parties hereto hereby consents to such recording.
11.2
Waivers; Amendments
.
(a) No failure or delay by the Agent, the Issuing Lender, or the Lenders in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such
a right or power, preclude any other or further exercise thereof or the exercise of any other right
or power. The rights and remedies of the Agent, the Issuing Lender, and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Credit Party or Subsidiary therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit
shall not be construed as a waiver of any Default, regardless of whether the Agent, any Lender or
the Issuing Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may
be waived, amended or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the Agent with the written
consent of the Required Lenders and the Agent;
provided
that no such agreement shall:
(i) increase the Commitment of any Lender without the written consent of such Lender
and the Agent;
(ii) reduce the principal amount of any Loan or Reimbursement Obligation or reduce the
rate of interest thereon (other than the decision not to charge, or to cease to charge,
Post-Default Interest), or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby;
(iii) postpone the scheduled date of payment of the principal amount of any Loan or
Reimbursement Obligation other than mandatory prepayments of the Loans required under
Section 2.9(b), or any interest thereon, or any fees payable hereunder, or reduce the amount
of, waive or excuse any such payment, change the maturity date of any Loan, or postpone the
scheduled date of expiration of any Commitment, or extend the ultimate expiration date of
any Letter of Credit beyond the Revolving Credit Maturity Date, without the written consent
of each Lender affected thereby;
(iv) except as expressly set forth in clause (x) below, change Section 2.9(c) in a
manner that would alter the application of prepayments thereunder, or change Section 2.8(b)
or
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(c) in a manner that would alter the pro rata sharing of payments required thereby,
without in each case the written consent of each Lender;
(v) alter the rights or obligations of the Borrower to prepay Loans (other than
mandatory prepayments of Loans under Section 2.9(b)) without the written consent of each
Lender affected thereby;
(vi) change any of the provisions of this Section 11.2 or the definition of Required
Lenders or any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or under any other Loan Document or
make any determination or grant any consent hereunder or thereunder, without the written
consent of each Lender;
(vii) release any of the Guarantors from its obligations in respect of its Guarantee
under Article 3 or release any material portion of the Collateral (or terminate any Lien
with respect thereto), except as expressly permitted in this Agreement, without the written
consent of each Lender;
(viii) waive any of the conditions precedent specified in Section 6.1 without the
written consent of each Lender and the Agent; or
(ix) subordinate the Loans to any other Indebtedness, without the written consent of
each Lender;
provided
further
that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Agent, the Swing Loan Lender or the Issuing Lender hereunder without the
prior written consent of the Agent, the Swing Loan Lender or the Issuing Lender, as the case may
be.
(c) Anything in this Agreement to the contrary notwithstanding, no waiver or modification of
any provision of this Agreement that has the effect (either immediately or at some later time) of
enabling the Borrower to satisfy a condition precedent to the making of any of Loan shall be
effective against all Lender unless the Required Lenders shall have concurred with such waiver or
modification.
11.3
Expenses; Indemnity: Damage Waiver.
(a) The Credit Parties jointly and severally agree to pay, or reimburse the Agent or the
Lenders, as applicable, for paying, (i) all reasonable out-of-pocket expenses incurred by the Agent
and its Affiliates, including the reasonable fees, charges and disbursements of Special Counsel, in
connection with the syndication of the credit facilities provided for herein, the preparation of
this Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lender in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the Agent, the Issuing Lender,
or any Lender, including the fees, charges and disbursements of any counsel for the Agent, the
Issuing Lender, or any Lender, in connection with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents, including their rights under this
Section 11.3, or in connection with the Loans made or Letters of Credit issued hereunder, including
in connection with any workout, restructuring or negotiations in respect thereof, and (iv) all
Other Taxes levied by any Governmental Authority in respect of this Agreement or any of the other
Loan Documents or any other document referred to herein or therein
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and all costs, expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest contemplated by any Loan
Document or any other document referred to therein.
(b) The Credit Parties jointly and severally agree to indemnify the Agent, the Issuing Lender,
each Lender and each Related Party of any of the foregoing Persons (each such Person being called
an Indemnitee) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee and settlement costs, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, the other Loan Documents or any agreement or instrument contemplated hereby, the
performance by the parties hereto and thereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or any other transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Lender to honor a demand for payment under a Letter
of Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned, leased or operated by any Credit Party or any Subsidiary,
or any Environmental Liability related in any way to any Credit Party or any Subsidiary, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto;
provided
that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Credit Parties fail to pay any amount required to be paid by them
to the Agent under paragraph (a) or (b) of this Section 11.3, each Lender severally agrees to pay
to the Agent such Lenders Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided
that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Agent in its capacity as such. To the extent
that the Credit Parties fail to pay any amount required to be paid by them to the Issuing Lender
under paragraph (a) or (b) of this Section 11.3, each Revolving Credit Lender severally agrees to
pay to the Issuing Lender such Lenders Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Issuing Lender in its
capacity as such.
(d) To the extent permitted by applicable law, none of the Credit Parties shall assert, and
each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, the other Loan Documents or
any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section 11.3 shall be payable within ten (10) Business Days
after written demand therefor.
(f) The agreements in this Section 11.3 shall survive the resignation of the Agent, the
Issuing Lender and the Swing Loan Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all other Obligations.
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11.4
Successors and Assigns.
(a)
Successors and Assigns, Generally
. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Credit Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender, the Issuing
Lender and the Agent no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this
Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of the Agent, the Issuing Lender, and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b)
Assignments by Lenders
. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that
any such assignment shall be subject to the following conditions:
(i)
Minimum Amounts
:
(A) in the case of an assignment of the entire remaining amount of the
assigning Lenders Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender or an Affiliate of a Lender no minimum amount need be
assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to Agent or, if Trade Date is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000,
unless each of Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an Assignee
Group to a single Eligible Assignee (or to an Eligible Assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of determining
whether such minimum amount has been met;
(ii)
Proportionate Amounts
. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lenders rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Loan Lenders rights and obligations in respect of
Swing Loans;
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(iii)
Required Consents
. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of Borrower (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment to a Competitor and for any other
assignment; provided, that the consent of the Borrower shall not be required in
connection with any assignment to a non-Competitor if (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such assignment is
to a Lender or an Affiliate of a Lender;
(B) the consent of Agent (such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect of any Revolving Credit
Commitment if such assignment is to a Person that is not a Lender or an Affiliate of
such Lender; and
(C) the consent of the Issuing Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding).
(iv)
Assignment and Assumption
. The parties to each assignment shall execute
and deliver to the Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount of $3,500.00; provided, however, that the Agent may, in its
sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to Agent an Administrative
Questionnaire.
(v)
No Assignment to Borrower
. No such assignment shall be made to Borrower or
any of Borrowers Affiliates or Subsidiaries.
(vi)
No Assignment to Natural Persons
. No such assignment shall be made to a
natural person.
Subject to acceptance and recording thereof by the Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lenders rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 2.11, 2.12 and 11.3 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Upon request, the Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.
(c)
Register
. The Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Agents office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amounts of the Loans and Reimbursement Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the Register). The entries in the Register shall be conclusive,
and the
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Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d)
Participations
. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Agent, sell participations to any Person (other than a natural person or
Borrower or any of the Borrowers Affiliates or Subsidiaries) (each, a
Participant
) in
all or a portion of such Lenders rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans (including such Lenders participations in
Reimbursement Obligations and/or Swing Loans) owing to it); provided that (i) such Lenders
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrower, the Agent, the Issuing Lender and the Lenders shall continue to deal solely and directly
with such Lender in connection with such Lenders rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, waiver or other modification described in the first proviso to Section 11.2 that
affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.11 and 2.12 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 11.8 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.8 as though it were a Lender.
(e)
Limitations upon Participant Rights
. A Participant shall not be entitled to
receive any greater payment under Section 2.11 or 2.12 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrowers prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.12 unless Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of Borrower, to comply with Section 2.12(e) as though
it were a Lender.
(f)
Certain Pledges
. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g)
Resignation as Issuing Lender or Swing Loan Lender
. Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all of its Commitment and
Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days notice to the
Borrower and the Lenders, resign as Issuing Lender and/or (ii) upon 30 days notice to the
Borrower, resign as Swing Loan Lender. In the event of any such resignation as Issuing Lender or
Swing Loan Lender, the Borrower shall be entitled to appoint from among Lenders a successor Issuing
Lender or Swing Loan Lender hereunder;
provided
, however, that no failure by the Borrower
to appoint any such successor shall affect the resignation of Bank of America as Issuing Lender or
Swing Loan Lender, as the case may be. If Bank of America resigns as Issuing Lender, it shall
retain all the rights, powers, privileges and duties of the Issuing Lender hereunder with respect
to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Lender
and all Reimbursement Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
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pursuant to Section 2.4(c)). If Bank of America resigns as Swing Loan Lender, it shall retain
all the rights of Swing Loan Lender provided for hereunder with respect to Swing Loans made by it
and outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Swing Loans pursuant to Section
2.6(d). Upon the appointment of a successor Issuing Lender and/or Swing Loan Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring Issuing Lender or Swing Loan Lender, as the case may be, and (b) the successor
Issuing Lender shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect to such Letters of
Credit.
11.5
Survival
. All covenants, agreements, representations and warranties made by the Credit
Parties and their Subsidiaries herein and in the other Loan Documents, and in the certificates or
other instruments delivered in connection with or pursuant to this Agreement and the other Loan
Documents, shall be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the other Loan Documents and the making of
any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Agent, the Issuing Lender or any Lender
may have had notice or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect so long as the
principal of or any accrued interest on any Loan or any fee or any other Obligation payable under
this Agreement or the other Loan Documents is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The provisions of
Sections 2.11, 2.12, and 10.3 and subsection 2.3(g) shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any other Loan Document or any provision hereof or thereof.
11.6
Counterparts; Integration; References to Agreement; Effectiveness
. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the
Agent or its counsel constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Whenever there is a reference in any Loan Document or UCC
Financing Statement to the Credit Agreement to which the Agent, the Lenders and the Credit
Parties are parties, such reference shall be deemed to be made to this Agreement among the parties
hereto. Except as provided in Section 6.1, this Agreement shall become effective when it shall
have been executed by the Agent and when the Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto, and thereafter shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this Agreement.
11.7
Severability
. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
11.8
Right of Setoff
. Each Credit Party hereby grants to the Agent, and each Lender that from
time to time maintains any deposit accounts, holds any funds or otherwise becomes indebted to the
Credit
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Parties a security interest in all deposits (general or special, time or demand, provisional
or final) and funds at any time held and other indebtedness at any time owing by the Agent, or any
Lender to or for the credit or the account of any Credit Party as security for the Obligations, and
the Credit Parties hereby agree that the Agent, and each Lender are hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) or other funds at any time held
and other indebtedness at any time owing by the Agent, or such Lender to or for the credit or the
account of any Credit Party against any and all of the Obligations, irrespective of whether or not
the Agent or the Lenders shall have made any demand under this Agreement and although any of the
Obligations may be unmatured. The rights of the Agent and each Lender under this Section 11.8 are
in addition to any other rights and remedies (including other rights of setoff) which the Agent or
any such Lender may have.
11.9
Subordination by Credit Parties
. The Credit Parties hereby agree that all present and
future Indebtedness of any Credit Party to another Credit Party (
Intercompany
Indebtedness
) shall be subordinate and junior in right of payment and priority to the
Obligations, and each Credit Party agrees not to make, demand, accept or receive any payment in
respect of any present or future Intercompany Indebtedness, including, without limitation, any
payment received through the exercise of any right of setoff, counterclaim or cross claim, or any
collateral therefor, unless and until such time as the Obligations shall have been indefeasibly
paid in full;
provided
that, so long as no Default shall have occurred and be continuing
and no Default shall be caused thereby, the Credit Parties may make and receive such payments as
shall be customary in the ordinary course of the Credit Parties business. Without in any way
limiting the foregoing, in the event of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization, dissolution or other similar proceedings relative to any
Credit Party or to its businesses, properties or assets, the Lenders shall be entitled to receive
payment in full of all of the Obligations before any Credit Party shall be entitled to receive any
payment in respect of any present or future Intercompany Indebtedness.
11.10
Governing Law; Jurisdiction; Consent to Service of Process
.
(a) This Agreement shall be construed in accordance with and governed by the law of The
Commonwealth of Massachusetts.
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of The Commonwealth of Massachusetts and
of the United States District Court for the District of Massachusetts, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this Agreement or the other
Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Massachusetts court (or, to the extent permitted by
law, in such Federal court). Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that the Agent, the Issuing Lender, or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Credit Party or any Subsidiary or its properties
in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or the
other Loan Documents in any court referred to in paragraph (b) of this Section 11.10. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court. (d) Each
party to this Agreement
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irrevocably consents to service of process in the manner provided for notices in Section 11.1.
Nothing in this Agreement will affect the right of any party to this Agreement to serve process in
any other manner permitted by law.
11.11
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.11.
11.12
Headings
. Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not affect the construction
of, or be taken into consideration in interpreting, this Agreement.
11.13
Release of Collateral and Guarantees
. The Agent and the Lenders agree that if all of
the capital stock of or other equity interests in any Subsidiary that is owned by the Credit
Parties is sold to any Person as permitted by the terms of this Agreement and the other Loan
Documents, or if any Subsidiary is merged or consolidated with or into any other Person as
permitted by the terms of this Agreement and such Subsidiary is not the continuing or surviving
corporation, the Agent shall, upon request of the Borrower (and upon the receipt by the Agent of
such evidence as the Agent or any Lender may reasonably request to establish that such sale,
designation, merger or consolidation is permitted by the terms of this Agreement), terminate the
Guarantee of such Subsidiary under Article 3 hereof and authorize the Agent to release the Liens
created by the Loan Documents on any capital stock of or other equity interests in such Subsidiary.
The Agent and the Lenders further agree that if any task order or contract of any Credit Party
shall become Energy Conservation Financing Collateral as permitted by the terms of this Agreement,
the Agent shall, upon request by the Borrower (and upon the receipt by the Agent of such evidence
as the Agent or any Lender may reasonably request to establish that grant of such security interest
in such task orders or contracts in favor of the Energy Conservation Project Financing Agent is
permitted by the terms of this Agreement), release the Lien created by the Loan Documents on such
Energy Conservation Financing Collateral.
11.14
Confidentiality
. The Agent, the Issuing Lender and each Lender agrees to keep
confidential information obtained by it pursuant hereto and the other Loan Documents confidential
in accordance with its customary practices and agrees that it will only use such information in
connection with the transactions contemplated by this Agreement and not disclose any of such
information other than (a) to the Agent or any Lender, (b) its employees, representatives,
directors, attorneys, auditors, agents, professional advisors, trustees or Affiliates who are
advised of the confidential nature of such information or to any direct or indirect contractual
counterparty in swap agreements or such contractual counterpartys
that notice of such
requirement or order shall be promptly furnished to the Borrower unless such notice is legally
prohibited) or requested or required by bank, securities, insurance or investment company
regulators or auditors or any administrative body or commission to whose jurisdiction the Agent or
such Lender may be subject, (d) to any rating agency to the extent required in connection with any
rating to be assigned to such Lender, (e) to assignees or participants or prospective assignees or
participants who agree to be bound by the provisions of this Section 11.13, (f) to the extent
required in connection with any
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litigation between any Credit Party and the Agent or any Lender with respect to the Loans or
this Agreement and the other Loan Documents or (g) with the Borrowers prior written consent.
11.15
Payments Set Aside
. To the extent that any payment by or on behalf of the Borrower is
made to the Agent, the Issuing Lender or any Lender, or the Agent, the Issuing Lender or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by Agent, the Issuing Lender or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and the Issuing Lender severally agrees to pay to the Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Effective Rate from time to time in effect. The obligations of the Lenders and
the Issuing Lender under clause (b) of the preceding sentence shall survive the payment in full of
the Obligations and the termination of this Agreement.
11.16
No Advisory or Fiduciary Responsibility
. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower and each other Credit Party
acknowledges and agrees and acknowledges its Affiliates understanding that that: (i) (A) the
services regarding this Agreement provided by the Agent are arms-length commercial transactions
between the Borrower, each other Credit Party and their respective Affiliates, on the one hand, and
the Agent, on the other hand, (B) each of the Borrower and the other Credit Parties have consulted
their own legal, accounting, regulatory and tax advisors to the extent they have deemed
appropriate, and ( C) the Borrower and each other Credit Party is capable of evaluating and
understanding, and understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the Agent is and has been acting
solely as a principal and, except as expressly agreed in writing by the relevant parties, has not
been, is not, and will not be acting as an advisor, agent or fiduciary, for the Borrower, any other
Credit Party, or any of their respective Affiliates, or any other Person and (B) the Agent does not
have any obligation to the Borrower, any other Credit Party or any of their Affiliates with respect
to the transaction contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; and (iii) the Agent and its Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower, the other Credit
Parties and their respective Affiliates, and the Agent has no obligation to disclose any of such
interests to the Borrower, any other Credit Party or any of their respective Affiliates. To the
fullest extent permitted by law, each of the Borrower and the other Credit Parties hereby waive and
release, any claims that it may have against the Agent with respect to any breach or alleged breach
of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
11.17
Electronic Execution of Assignments and Certain Other Documents
. The words execution,
signed, signature, and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.
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11.18
USA Patriot Act Notice
. Each Lender that is subject to the Patriot Act (as hereinafter
defined) and Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the Patriot Act), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Agent, as applicable, to identify the Borrower
in accordance with the Patriot Act. The Borrower shall, promptly following a request by the Agent
or any Lender, provide all documentation and other information that the Agent or such Lender
requests in order to comply with its ongoing obligations under applicable know your customer and
anti-money laundering rules and regulations, including the Patriot Act.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed
by their respective authorized officers as of the day and year first above written.
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BORROWER
AMERESCO, INC.
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By:
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/s/ Andrew B. Spence
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Name:
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Andrew B. Spence
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Title:
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Vice President & Chief Financial Officer
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GUARANTORS
AMERESCO ENERTECH, INC.
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By:
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/s/ Andrew B. Spence
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Name:
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Andrew B. Spence
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Title:
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Treasurer
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E.THREE CUSTOM ENERGY SOLUTIONS, LLC,
By: Sierra Energy Company, its sole member
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By:
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Name:
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Title:
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AMERESCOSOLUTIONS, INC.
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By:
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/s/ Andrew B. Spence
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Name:
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Andrew B. Spence
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Title:
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Treasurer
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AMERESCO PLANERGY HOUSING, INC.
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By:
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/s/ Andrew B. Spence
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Name:
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Andrew B. Spence
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Title:
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Treasurer
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[Signature Page to Credit and Security Agreement]
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SOLUTIONS HOLDINGS, LLC
By: Ameresco, Inc., its sole member
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By:
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/s/ Andrew B. Spence
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Name:
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Andrew B. Spence
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Title:
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Vice President & Chief Financial Officer
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AMERESCO FEDERAL SOLUTIONS, INC.
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By:
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/s/ Andrew B. Spence
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Name:
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Andrew B. Spence
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Title:
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Treasurer
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SIERRA ENERGY COMPANY
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By:
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Name:
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Title:
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AMERESCO SELECT, INC.
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By:
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Name:
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Title:
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AMERESCO HAWAII LLC
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By:
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Name:
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Title:
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AMERESCO SOLAR SOLUTIONS, INC.
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By:
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Name:
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Title:
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AMERESCO SOLAR-PRODUCTS LLC
By: Ameresco, Inc., its sole member
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By:
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Name:
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Title:
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[Signature Page to Credit and Security Agreement]
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AMERESCO SOLAR, LLC
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By:
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Name:
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Title:
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AMERESCO SOLAR TECHNOLOGIES LLC
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By:
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Name:
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Title:
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AMERESCO WOODLAND MEADOWS ROMULUS LLC
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By:
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Name:
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Title:
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AMERESCO NORTHAMPTON LLC
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By:
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Name:
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Title:
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[Signature Page to Credit and Security Agreement]
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AGENT AND LENDER
BANK OF AMERICA, N.A.,
as Administrative Agent and a Lender
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By:
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/s/
John F. Lynch
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Name:
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John F. Lynch
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Title:
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Senior Vice President
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[Signature Page to Credit and Security Agreement]