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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:
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"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 o
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