Exhibit 10.7
Execution Version
MXENERGY INC.
AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN
AGREEMENT AND
AMENDMENT NO. 1 TO AMENDED AND RESTATED SECURITY
AGREEMENT
This AMENDMENT NO. 2 TO AMENDED AND
RESTATED LOAN AGREEMENT AND AMENDMENT NO. 1 TO AMENDED AND RESTATED
SECURITY AGREEMENT (the “ Amendment ”) is dated
as of December 19, 2005 and entered into by and between MxEnergy
Inc., a Delaware corporation (the “ Company ”),
and Sowood Commodity Partners Fund LP (the “ Lender
”). This Amendment amends (i) the Amended and Restated Loan
Agreement (as amended, amended and restated, supplemented or
otherwise modified, the “ Loan Agreement ”)
dated as of November 14, 2003 by and between the parties hereto and
(ii) the Amended and Restated Security Agreement (as amended,
amended and restated, supplemented or otherwise modified, the
“ Security Agreement ”) dated as of November 14,
2003 by and between the parties hereto. Capitalized terms used
herein without definition shall have the same meanings herein as
set forth in the Loan Agreement or the Security Agreement, as
applicable.
RECITALS
WHEREAS, the parties hereto entered
into the Loan Agreement, which provides for a loan facility to the
Company;
WHEREAS, the parties hereto entered
into the Security Agreement which secures the Company’s
obligations under the Loan Agreement; and
WHEREAS, the Company has requested
and the Banks have agreed to make certain amendments to the Loan
Agreement and the Security Agreement as set forth below;
NOW, THEREFORE, in consideration of
the premises and the agreements, provisions and covenants herein
contained, the parties hereto agree as follows:
1.
Amendments to Loan
Agreement .
(a)
Section 5.2 of the Loan Agreement is
hereby amended by (i) deleting the word “and” after
clause (vii) of the definition of “Permitted
Indebtedness” and (ii) inserting the following after clause
(vii) of the definition of “Permitted
Indebtedness”:
“and (viii) indebtedness
permitted under Section 6.02 of the Credit Agreement dated as of
December 19, 2005 among the Company, MxEnergy Electric Inc.,
MxEnergy Holdings Inc. and certain subsidiaries thereof, the
lenders from time to time party thereto and Société
Générale, as administrative agent (the “SG Credit
Agreement”)”
(b)
Section 5.5 of the Loan Agreement is
hereby amended by adding the words “and Distributions
permitted under Section 6.06 of the SG Credit Agreement as of the
date of the SG Credit Agreement (other than (i) subsection (b)
thereof and (ii) with respect to subsection (e) thereof, the
inclusion of such subsection shall not be deemed to supersede or
amend the terms of any document or instrument governing such
Subordinated Indebtedness (as such term is defined in the SG Credit
Agreement))” immediately after the words “other than
Lathi” in the parenthetical in the first sentence
thereof.
(c)
Section 5.7.1 of the Loan Agreement
is hereby deleted in its entirety and the following Section is
inserted in lieu thereof:
“5.7.1
Annual Reports . MXE shall furnish to Lathi as soon as
available, and in any event within 120 days after the end of
each fiscal year, the balance sheet of MxEnergy Holdings Inc.
(“Holdings”) as of the end of such fiscal year, and the
statements of income, changes in shareholder equity and cash flows
of Holdings for such fiscal year and comparative figures for the
immediately preceding fiscal year, all consistent in scope and
detail to the audited financial statements for Holdings’
fiscal year ended June 30, 2005 previously provided to Lathi, and
accompanied by: (i) reports of independent certified public
accountants of recognized national standing reasonably satisfactory
to Lathi containing no material qualification, to the effect that
they have audited the foregoing financial statements in accordance
with generally accepted auditing standards and that such financial
statements present fairly, in all material respects, the financial
position of Holdings at the dates thereof and the results of their
operations for the periods covere
