Exhibit 10.8
Execution Version
MXENERGY INC.
AMENDMENT NO. 3 TO AMENDED AND RESTATED
LOAN AGREEMENT AND
AMENDMENT NO. 2 TO AMENDED AND RESTATED SECURITY
AGREEMENT
This AMENDMENT NO. 3 TO AMENDED
AND RESTATED LOAN AGREEMENT AND AMENDMENT NO. 2 TO AMENDED AND
RESTATED SECURITY AGREEMENT (the “ Amendment ”)
is dated as of August 1, 2006 and entered into by and between
MxEnergy Inc., a Delaware corporation (“ MXE ”),
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, pursuant to the Transfer
Agreement dated July 1, 2004 by and between Lathi, LLC,
certain other parties, and Sowood Commodity Partners Fund LP and
the Consent to Transfer dated June 30, 2004 by and between
Lathi, LLC and MXE, Lathi, LLC transferred all of its rights and
obligations in respect of MXE to Sowood Commodity Partners Fund
LP;
WHEREAS, the parties hereto entered
into the Loan Agreement, which provides for a loan facility to
MXE;
WHEREAS, the parties hereto entered
into the Security Agreement which secures MXE’s obligations
under the Loan Agreement; and
WHEREAS, MXE 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)
All references in all Credit
Documents to “Lathi, LLC” are hereby amended to read
“Sowood Commodity Partners Fund LP” and the term
“Sowood” shall refer to Sowood Commodity Partners Fund
LP.
(b)
The first paragraph of
Section 1.2 of the Loan Agreement is amended to read as
follows:
“ Borrowing Requests .
MXE may from time to time request a Loan under
Section 1.1 by providing to Sowood a borrowing request in the
form of Exhibit 1.2 (a “ Borrowing
Request ”) not later than noon, five business days prior
to the requested date for extension of such Loan (each such date a
“ Funding Date ”) specifying (a) the amount
of the requested loan, which shall be in an amount not less than
$100,000 and (b) the requested Funding therefor, which shall
be a business day.”
The remainder of Section 1.2
remains unchanged.
(c)
Section 5.2 of the Loan
Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
“ Incurrence of
Indebtedness . MXE shall not without the prior consent of
Sowood create, incur, assume, or otherwise become or remain liable
with respect to liabilities of any kind other than Permitted
Indebtedness. “ Permitted Indebtedness ” shall
mean (i) Dominion Indebtedness; (ii) indebtedness to
Sowood hereunder and under the Note; (iii) indebtedness
secured under purchase money security interests (including
mortgages, conditional sales, capital leases and other title
retention or deferred purchase devices) so long as (x) the lien is
limited to the property whose acquisition was funded, or
refinanced, through the incurrence of such indebtedness; (y) such
indebtedness is limited in recourse to the applicable financed
property or the amount of such indebtedness does not exceed the
lesser of (a) the purchase price or construction cost of said
property and (b) the fair market value of said property; and
(z) the indebtedness was incurred within 60 days after the initial
acquisition of the applicable property; (iv) liabilities
incurred in the ordinary course of business secured by carriers,
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