SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.8
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Second Amendment”), dated as of May
5, 2008, among POWERSECURE INTERNATIONAL, INC., a Delaware corporation (the “Borrower”),
the lenders party to the Credit Agreement defined below (the “Lenders”), and CITIBANK,
N.A., as Administrative Agent.
BACKGROUND
A. The Borrower, the Lenders and the Administrative Agent are parties to that certain Credit
Agreement, dated as of August 23, 2007, as amended by that certain First Amendment to Credit
Agreement, dated as of January 17, 2008 (said Credit Agreement, as amended, the “Credit
Agreement”; the terms defined in the Credit Agreement and not otherwise defined herein shall be
used herein as defined in the Credit Agreement).
B. The Borrower, the Lenders and the Administrative Agent desire to make an amendment to the
Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which are all
hereby acknowledged, the parties hereto covenant and agree as follows:
1. AMENDMENT. Section 7.13 of the Credit Agreement is hereby amended to read
as follows:
Section 7.13 [Intentionally Omitted].
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and
delivery hereof, the Borrower represents and warrants that, as of the date hereof and after giving
effect to the amendment set forth in the foregoing Section 1:
(a) the representations and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct on and as of the date hereof as made on and as of such date, except
to the extent that such representations and warranties specifically refer to an earlier date, in
which case they are true and correct as of such earlier date;
(b) no event has occurred and is continuing which constitutes a Default or an Event of
Default;
(c) the Borrower has full power and authority to execute and deliver this Second Amendment,
and this Second Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid
and binding obligations of the Borrower, enforceable against the Borrower in accordance with their
respective terms, except as enforceability may be limited by applicable Debtor Relief Laws and by
general principles of equity (regardless of whether enforcement is sought in a proceeding in equity
or at law) and subject to an implied covenant of good faith and fair dealing and except as rights
to indemnity may be limited by federal or state securities laws; and
1
(d) no authorization, approval, consent, or other action by, notice to, or filing with, any
governmental authority or other Person (not already obtained), is required for the execution,
delivery or performance by (i) the Borrower of this Second Amendment or (ii) the acknowledgment of
this Second Amendment by any Guarantor, other than those already obtained or made.
3. CONDITIONS OF EFFECTIVENESS. This Second Amendment shall be effective as of May 5,
2008 subject to the following:
(a) the representations and warranties set forth in Section 2 of this Second Amendment shall
be true and correct;
(b) the Administrative Agent shall have received counterparts of this Second Amendment
executed by the Lenders; and
(c) the Administrative Agent shall have received counterparts of this Second Amendment
executed by the Borrower and acknowledged by each Guarantor.
4. GUARANTOR’S ACKNOWLEDGMENT. By signing below, each Guarantor (i) acknowledges,
consents and agrees to the execution, delivery and performance by the Borrower of this Second
Amendment, (ii) acknowledges and agrees that its obligations in respect of its Guaranty are not
released, diminished, waived, modified, impaired or affected in any manner by this Second
Amendment, or any of the provisions contemplated herein, (iii) ratifies and confirms its
obligations under its Guaranty and (iv) acknowledges and agrees that it has no claim or offsets
against, or defenses or counterclaims to, its Guaranty.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon and during the effectiveness of this Second Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, or words of like import shall mean and be a reference
to the Credit Agreement, as affected by this Second Amendment.
(b) Except as expressly set forth herein, this Second Amendment shall not by implication or
otherwise limit, impair, constitute a waiver of, or otherwise affect the rights or remedies of the
Borrower or the Administrative Agent or the Lender under the Credit Agreement or any of the other
Loan Documents, and shall not alter, modify, amend, or in any way affect the terms, conditions,
obligations, covenants, or agreements contained in the Credit Agreement or the other Loan
Documents, all of which are hereby ratified and affirmed in all respects and shall continue in full
force and effect.
6. COSTS AND EXPENSES. The Borrower shall be obligated to pay or reimburse the
Administrative Agent for all reasonable costs and expenses incurred by the Administrative Agent in
connection with the preparation, reproduction, execution and delivery of this Second Amendment and
the other instruments and documents to be delivered hereunder.
7. EXECUTION IN COUNTERPARTS. This Second Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which when
2
taken together shall constitute but one and the same instrument. For purposes of this Second
Amendment, a counterpart hereof (or signature page thereto) signed and transmitted by any Person
party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or
electronic mail is to be treated as an original. The signature of such Person thereon, for
purposes hereof, is to be considered as an original signature, and the counterpart (or signature
page thereto) so transmitted is to be considered to have the same binding effect as an original
signature on an original document.
8. GOVERNING LAW; BINDING EFFECT. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to agreements made and to
be performed entirely within such state (provided that each party shall retain all rights arising
under federal law), and shall be binding upon the parties hereto and their respective successors
and assigns.
9. HEADINGS. Section headings in this Second Amendment are included herein for
convenience of reference only and shall not constitute a part of this Second Amendment for any
other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS SECOND AMENDMENT, AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AS TO THE SUBJECT MATTER
THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
3
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of the date
first above written.
POWERSECURE INTERNATIONAL, INC. |
||||
By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
Xxxxxxxxxxx X. Xxxxxx | ||||
Chief Financial Officer |
4
CITIBANK, N.A., as Administrative Agent and Lender |
||||
By: | /s/ Xxxx X. Xxxxxxx | |||
Xxxx X. Xxxxxxx | ||||
Vice President |
5
ACKNOWLEDGED AND AGREED:
POWERSECURE, INC.
POWERSERVICES, INC.
ENERGYLITE, INC.
UTILITYENGINEERING, INC.
UTILITYDESIGN, INC.
XXXXXX GAS TRANSMISSION, INC.
XXXX’X TRAILER, INC.
EFFICIENTLIGHTS, LLC
SOUTHERN FLOW COMPANIES, INC.
POWERSERVICES, INC.
ENERGYLITE, INC.
UTILITYENGINEERING, INC.
UTILITYDESIGN, INC.
XXXXXX GAS TRANSMISSION, INC.
XXXX’X TRAILER, INC.
EFFICIENTLIGHTS, LLC
SOUTHERN FLOW COMPANIES, INC.
By: | /s/ Xxxxxxxxxxx X. Xxxxxx | ||
Xxxxxxxxxxx X. Xxxxxx | |||
Chief Financial Officer for all | |||
6