Exhibit 10.6


 




 





 


THIRD AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of November 17, 2008


 


Among


 


MXENERGY INC. and


MXENERGY ELECTRIC INC.


 


as Borrowers,


 


MXENERGY HOLDINGS INC. AND CERTAIN SUBSIDIARIES THEREOF,


 


as Guarantors,


 


 THE LENDERS FROM TIME TO TIME
PARTY HERETO,


 


as Lenders,


 


and


 


SOCIÉTÉ GÉNÉRALE,


 


as Administrative Agent


 






 


SOCIÉTÉ GÉNÉRALE,


 


Lead Arranger and Sole Bookrunner


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Certain Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.02

  	
  Computation of Time Periods

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 1.03

  	
  Accounting Terms

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 1.04

  	
  Types of Advances

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 1.05

  	
  Miscellaneous

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE ADVANCES

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  The Advances

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 2.02

  	
  Method of Borrowing

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 2.03

  	
  Fees

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 2.04

  	
  Reduction of the Revolving Commitments

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 2.05

  	
  Repayment

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 2.06

  	
  Interest

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 2.07

  	
  Prepayments

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 2.08

  	
  Funding Losses

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 2.09

  	
  Increased Costs

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 2.10

  	
  Payments and Computations

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 2.11

  	
  Taxes

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 2.12

  	
  Sharing of Payments, Etc

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 2.13

  	
  Applicable Lending Offices

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 2.14

  	
  Letters of Credit

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 2.15

  	
  Mitigation Obligations; Replacement of Lenders

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE III CONDITIONS OF LENDING

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Initial Conditions Precedent

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 3.02

  	
  Conditions Precedent to Each Credit Event

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 3.03

  	
  Determinations Under Section 3.01 and 3.02

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND WARRANTIES

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Existence; Subsidiaries

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 4.02

  	
  Power and Authority

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 4.03

  	
  Authorization and Approvals

  	
  63

  



 

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.04

  	
  Enforceable Obligations

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 4.05

  	
  Financial Statements; No Material Adverse Effect

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 4.06

  	
  True and Complete Disclosure

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 4.07

  	
  Litigation

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 4.08

  	
  Compliance with Laws

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 4.09

  	
  No Default

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 4.10

  	
  Subsidiaries; Corporate Structure

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 4.11

  	
  Condition of Properties

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 4.12

  	
  Environmental Condition

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 4.13

  	
  Insurance

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 4.14

  	
  Taxes

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 4.15

  	
  ERISA Compliance

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 4.16

  	
  Security Interests

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 4.17

  	
  Bank Accounts

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 4.18

  	
  Labor Relations

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 4.19

  	
  Intellectual Property

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 4.20

  	
  Solvency

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 4.21

  	
  Senior Indebtedness

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 4.22

  	
  Margin Regulations

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 4.23

  	
  Investment Company Act; Public Utility Holding Company Act

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 4.24

  	
  Names and Locations

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 4.25

  	
  Revisions or Updates to the Schedules

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE V AFFIRMATIVE COVENANTS

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Preservation of Existence, Etc

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 5.02

  	
  Compliance with Laws, Etc

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 5.03

  	
  Maintenance of Property

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 5.04

  	
  Maintenance of Insurance

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 5.05

  	
  Payment of Taxes, Etc

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 5.06

  	
  Reporting Requirements

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 5.08

  	
  Books and Records; Inspection

  	
  77

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.09

  	
  Use of Proceeds

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 5.10

  	
  Nature of Business

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 5.11

  	
  Risk Management Policy

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 5.12

  	
  Additional Guarantors

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 5.13

  	
  Additional Collateral Requirements

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 5.14

  	
  Further Assurances in General

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 5.15

  	
  Secured Counterparty Guaranty

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 5.16

  	
  Monthly Conference Calls

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 5.17

  	
  Retention of Financial Advisor by Administrative Agent

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI NEGATIVE COVENANTS

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Liens, Etc

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 6.02

  	
  Debts, Guaranties and Other Obligations

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 6.03

  	
  Merger or Consolidation

  	
  81

  
	
   

  	
   

  	
   

  
	
  Section 6.04

  	
  Asset Sales

  	
  82

  
	
   

  	
   

  	
   

  
	
  Section 6.05

  	
  Investments and Acquisitions

  	
  82

  
	
   

  	
   

  	
   

  
	
  Section 6.06

  	
  Restricted Payments

  	
  83

  
	
   

  	
   

  	
   

  
	
  Section 6.07

  	
  Change in Nature of Business

  	
  83

  
	
   

  	
   

  	
   

  
	
  Section 6.08

  	
  Transactions With Affiliates

  	
  83

  
	
   

  	
   

  	
   

  
	
  Section 6.09

  	
  Agreements Restricting Liens and Distributions

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section 6.10

  	
  Limitation on Accounting Changes or Changes in Fiscal Periods

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section 6.11

  	
  Limitation on Speculative Hedging

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section 6.12

  	
  Operating Leases

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 6.13

  	
  Sale and Leaseback Transactions and other Off-Balance Sheet
  Liabilities

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 6.14

  	
  Subordinated Debt and Bridge Loans

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 6.15

  	
  Amendment of Material Contracts

  	
  86

  
	
   

  	
   

  	
   

  
	
  Section 6.16

  	
  Capital Expenditures

  	
  86

  
	
   

  	
   

  	
   

  
	
  Section 6.17

  	
  Minimum Consolidated Tangible Net Worth

  	
  86

  
	
   

  	
   

  	
   

  
	
  Section 6.18

  	
  Minimum Consolidated Working Capital

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section 6.19

  	
  Maximum Aggregate Negative EBITDA

  	
  87

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.20

  	
  Interest Coverage Ratio

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section 6.21

  	
  Average Leverage Ratio

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section 6.22

  	
  Monthly Leverage Ratio

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section 6.23

  	
  Minimum Borrowing Base Availability

  	
  88

  
	
   

  	
   

  	
   

  
	
  Section 6.24

  	
  Minimum Cash Requirement

  	
  88

  
	
   

  	
   

  	
   

  
	
  Section 6.25

  	
  Payment of Management Bonuses and Board Fees

  	
  88

  
	
   

  	
   

  	
   

  
	
  Section 6.26

  	
  No Additional Collateral or Letters of Credit to Secured
  Counterparties

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII EVENTS OF DEFAULT

  	
  88

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Events of Default

  	
  88

  
	
   

  	
   

  	
   

  
	
  Section 7.02

  	
  Optional Acceleration of Maturity

  	
  90

  
	
   

  	
   

  	
   

  
	
  Section 7.03

  	
  Automatic Acceleration of Maturity

  	
  91

  
	
   

  	
   

  	
   

  
	
  Section 7.04

  	
  Non-exclusivity of Remedies

  	
  91

  
	
   

  	
   

  	
   

  
	
  Section 7.05

  	
  Right of Set-off

  	
  91

  
	
   

  	
   

  	
   

  
	
  Section 7.06

  	
  Application of Proceeds

  	
  92

  
	
   

  	
   

  	
   

  
	
  Section 7.07

  	
  Administrative Agent’s Account

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII GUARANTY

  	
  94

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Liabilities Guaranteed

  	
  94

  
	
   

  	
   

  	
   

  
	
  Section 8.02

  	
  Nature of Guaranty

  	
  94

  
	
   

  	
   

  	
   

  
	
  Section 8.03

  	
  Agent’s Rights

  	
  94

  
	
   

  	
   

  	
   

  
	
  Section 8.04

  	
  Guarantor’s Waivers

  	
  94

  
	
   

  	
   

  	
   

  
	
  Section 8.05

  	
  Maturity of Obligations, Payment

  	
  96

  
	
   

  	
   

  	
   

  
	
  Section 8.06

  	
  Agent’s Expenses

  	
  96

  
	
   

  	
   

  	
   

  
	
  Section 8.07

  	
  Liability

  	
  96

  
	
   

  	
   

  	
   

  
	
  Section 8.08

  	
  Events and Circumstances Not Reducing or Discharging any Guarantor’s
  Obligations

  	
  96

  
	
   

  	
   

  	
   

  
	
  Section 8.09

  	
  Subordination of All Guarantor Claims

  	
  98

  
	
   

  	
   

  	
   

  
	
  Section 8.10

  	
  Claims in Bankruptcy

  	
  99

  
	
   

  	
   

  	
   

  
	
  Section 8.11

  	
  Payments Held in Trust

  	
  99

  
	
   

  	
   

  	
   

  
	
  Section 8.12

  	
  Benefit of Guaranty

  	
  99

  
	
   

  	
   

  	
   

  
	
  Section 8.13

  	
  Reinstatement

  	
  100

  



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 8.14

  	
  Liens Subordinate

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 8.15

  	
  Guarantor’s Enforcement Rights

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 8.16

  	
  Limitation

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 8.17

  	
  Contribution Rights

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 8.18

  	
  Release of Guarantors

  	
  101

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX THE ADMINISTRATIVE AGENT

  	
  101

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Appointment and Authority

  	
  101

  
	
   

  	
   

  	
   

  
	
  Section 9.02

  	
  Rights as a Lender

  	
  102

  
	
   

  	
   

  	
   

  
	
  Section 9.03

  	
  Exculpatory Provisions

  	
  102

  
	
   

  	
   

  	
   

  
	
  Section 9.04

  	
  Reliance by the Administrative Agent

  	
  103

  
	
   

  	
   

  	
   

  
	
  Section 9.05

  	
  Delegation of Duties

  	
  103

  
	
   

  	
   

  	
   

  
	
  Section 9.06

  	
  Resignation of the Administrative Agent

  	
  103

  
	
   

  	
   

  	
   

  
	
  Section 9.07

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
  105

  
	
   

  	
   

  	
   

  
	
  Section 9.08

  	
  Indemnification

  	
  105

  
	
   

  	
   

  	
   

  
	
  Section 9.09

  	
  Collateral and Guaranty Matters

  	
  106

  
	
   

  	
   

  	
   

  
	
  Section 9.10

  	
  Intercreditor Agreement and Security Documents

  	
  107

  
	
   

  	
   

  	
   

  
	
  Section 9.11

  	
  No Other Duties, etc.

  	
  107

  
	
   

  	
   

  	
   

  
	
  Section 9.12

  	
  No Duty to Share Information with Bridge Lenders.

  	
  107

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  MISCELLANEOUS

  	
  108

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Amendments, Etc

  	
  108

  
	
   

  	
   

  	
   

  
	
  Section 10.02

  	
  Notices, Etc

  	
  109

  
	
   

  	
   

  	
   

  
	
  Section 10.03

  	
  No Waiver; Cumulative Remedies

  	
  111

  
	
   

  	
   

  	
   

  
	
  Section 10.04

  	
  Costs and Expenses

  	
  111

  
	
   

  	
   

  	
   

  
	
  Section 10.05

  	
  Indemnification

  	
  111

  
	
   

  	
   

  	
   

  
	
  Section 10.06

  	
  Successors and Assigns

  	
  113

  
	
   

  	
   

  	
   

  
	
  Section 10.07

  	
  Confidentiality

  	
  116

  
	
   

  	
   

  	
   

  
	
  Section 10.08

  	
  Execution in Counterparts

  	
  117

  
	
   

  	
   

  	
   

  
	
  Section 10.09

  	
  Survival of Representations, etc

  	
  117

  
	
   

  	
   

  	
   

  
	
  Section 10.10

  	
  Severability

  	
  117

  
	
   

  	
   

  	
   

  
	
  Section 10.11

  	
  Interest Rate Limitation

  	
  117

  



 


v

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.12

  	
  Governing Law

  	
  117

  
	
   

  	
   

  	
   

  
	
  Section 10.13

  	
  Joint and Several Liability

  	
  118

  
	
   

  	
   

  	
   

  
	
  Section 10.14

  	
  Submission to Jurisdiction

  	
  119

  
	
   

  	
   

  	
   

  
	
  Section 10.15

  	
  Waiver of Jury

  	
  120

  
	
   

  	
   

  	
   

  
	
  Section 10.16

  	
  Entire Agreement

  	
  120

  
	
   

  	
   

  	
   

  
	
  Section 10.17

  	
  Amendment, Restatement and Rearrangement of Prior Debt

  	
  120

  
	
   

  	
   

  	
   

  
	
  Section 10.18

  	
  Release; Acknowledgement of Debt

  	
  121

  
	
   

  	
   

  	
   

  
	
  Section 10.19

  	
  Termination of Waiver

  	
  121

  



 


vi

















 


EXHIBITS:


 


	
  Exhibit A

  	
  –

  	
  Form of Assignment and Acceptance Agreement

  
	
  Exhibit B

  	
  –

  	
  Form of Borrowing Base Report

  
	
  Exhibit C

  	
  –

  	
  Form of Compliance Certificate

  
	
  Exhibit D

  	
  –

  	
  Form of Letter of Credit Request

  
	
  Exhibit E-1

  	
  –

  	
  Form of Revolving Note

  
	
  Exhibit E-2

  	
  –

  	
  Form of Bridge Note

  
	
  Exhibit F

  	
  –

  	
  Form of Notice of Borrowing

  
	
  Exhibit G

  	
  –

  	
  Form of Notice of Conversion or Continuation

  
	
  Exhibit H

  	
  –

  	
  Form of Pledge Agreement

  
	
  Exhibit I

  	
  –

  	
  Form of Security Agreement

  
	
  Exhibit J

  	
  –

  	
  Form of Qualifying Supplier Letter of Credit

  
	
  Exhibit K

  	
  –

  	
  Form of Risk Management Policy Certification

  



 


SCHEDULES:


 


	
  Schedule 1.01(a)

  	
  –

  	
  Tier II Eligible Exchange Accounts

  
	
  Schedule 1.01(b)

  	
  –

  	
  Guarantors

  
	
  Schedule 1.01(c)

  	
  –

  	
  LDCs

  
	
  Schedule 1.01(d)

  	
  –

  	
  Fees and Expenses Associated with Letters of Credit or Debt

  
	
  Schedule 1.01(e)

  	
  –

  	
  Material Contracts

  
	
  Schedule 2.01

  	
  –

  	
  Commitments and Pro Rata Shares of the Lenders

  
	
  Schedule 3.01(j)

  	
  –

  	
  Material Adverse Changes

  
	
  Schedule 4.01

  	
  –

  	
  Licensed Jurisdictions

  
	
  Schedule 4.10

  	
  –

  	
  Subsidiaries

  
	
  Schedule 4.13

  	
  –

  	
  Insurance

  
	
  Schedule 4.17

  	
  –

  	
  Bank Accounts

  
	
  Schedule 4.24

  	
  –

  	
  Locations

  
	
  Schedule 6.01

  	
  –

  	
  Existing Liens

  
	
  Schedule 6.02

  	
  –

  	
  Existing Debt

  
	
  Schedule 6.05

  	
  –

  	
  Investments

  
	
  Schedule 6.08

  	
  –

  	
  Affiliate Transactions

  
	
  Schedule 6.09

  	
  –

  	
  Restrictive Agreements

  
	
  Schedule 10.02

  	
  –

  	
  Addresses for Notice

  



 

















 


THIRD AMENDED AND RESTATED CREDIT AGREEMENT


 


This Third Amended and Restated Credit
Agreement dated as of November 17, 2008 is among MxEnergy Inc., a Delaware
corporation (“MxEnergy”), MxEnergy Electric Inc., a Delaware corporation
(“MxEnergy Electric”; MxEnergy and MxEnergy Electric are each
individually, a “Borrower” and collectively, the “Borrowers”),
the Guarantors, the Lenders, and Société Générale, as Administrative Agent for
the Lenders.


 


Reference is made to the Second Amended and
Restated Credit Agreement dated as of September 30, 2008 (as amended
through the date hereof, the “Existing Credit Agreement”) executed among
the Borrowers, the Lenders party thereto, and the Administrative Agent,
pursuant to which the Lenders parties thereto agreed to make available to the
Borrower a revolving credit facility for loans and letters of credit upon the
terms and conditions set forth therein and in the other Loan Documents (as
defined therein).


 


The Borrowers have requested that the
Lenders, and the Lenders have agreed to, amend and restate the Existing Credit
Agreement, subject to the terms and conditions of this Agreement.


 


The Borrowers, the Guarantors, the Lenders,
and the Administrative Agent agree as follows:


 


ARTICLE I


 


DEFINITIONS AND ACCOUNTING TERMS


 


Section 1.01           Certain Defined Terms.  Any terms used in this Agreement that are
defined in Article 9 of the Uniform Commercial Code as adopted in the
State of New York (“UCC”) shall have the meanings assigned to those
terms by the UCC as of the Closing Date. 
As used in this Agreement, the terms defined above shall have the
meanings set forth therein and the following terms shall have the following
meanings (unless otherwise indicated, such meanings to be equally applicable to
both the singular and plural forms of the terms defined):


 


“Acceptable Credit Support” means one
or more letters of credit payable in Dollars for the benefit of a Borrower or
one of its Subsidiaries to support payment of an Eligible Exchange Account or
Eligible Account of such Loan Party, which letter of credit is in form and
substance acceptable to the Administrative Agent and issued by a bank or other
financial institution approved by the Administrative Agent, each in its sole
discretion, and for which an Acceptable Security Interest exists on all
letter-of-credit rights associated with such letter of credit.


 


“Acceptable Security Interest” in any
Property means a Lien which (a) exists in favor of the Administrative
Agent for the benefit of the Secured Parties; (b) secures the Obligations;
and (c) is perfected and enforceable against the Loan Party that created
such security interest in preference to any rights of any Person therein, other
than Excepted Liens.


 


“Account Control Agreement” shall mean,
if any deposit or securities account of a Borrower or any Loan Party is held
with a financial institution that is not the Administrative Agent, an agreement
or agreements in form and substance reasonably acceptable to the


 


1

















 


Administrative
Agent between the Administrative Agent and such other financial institution
governing any such deposit accounts or securities accounts of such Borrower or
such Loan Party.


 


“Acquisition” means any transaction,
or any series of related transactions, consummated on or after the Closing
Date, by which the Parent or any of its Subsidiaries (a) acquires any
going business or all or substantially all of the assets of any firm,
corporation or limited liability company, or division thereof, whether through
purchase of assets, merger or otherwise, (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
ownership interests of a partnership or limited liability company, or (c) acquires
customers or customer lists and related assets from another Person.


 


“Adjusted Base Rate” means, for any
day, a fluctuating rate of interest per annum equal to the higher of (a) the
Prime Rate in effect for such day, (b) the sum of the Federal Funds
Effective Rate in effect for such day plus 1⁄2 of 1% per annum, and (c) in
the case of Base Rate Advances made in the circumstances set forth in Section 2.02(c)(iv),
the Cost of Funds.  “Cost of Funds” means
the Administrative Agent’s determination, made on each day, as to the effective
cost of its obtaining funds on such day for maintaining a Base Rate Advance,
which shall be expressed as a rate of interest per annum to be charged on each
day from the date of such Base Rate Advance until paid when due.  Any change in the Adjusted Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate, or the Cost of
Funds shall be effective on the effective date of such change in the Prime
Rate, Federal Funds Effective Rate, or the Cost of Funds.


 


“Administrative Agent” means SG in its
capacity as administrative agent for the Lenders under the Loan Documents and
any successor in such capacity appointed pursuant to Section 9.06.


 


“Administrative Agent’s Account” means
account no. 193852 maintained at SG, and is the “Collateral Account”
established and maintained pursuant to Section 7.07, in the name of
the Borrowers but under the sole dominion and control of, and exclusive right
of withdrawal at the direction of, the Administrative Agent and subject to the
terms of this Agreement.


 


“Administrative Questionnaire” means
an administrative questionnaire in a form supplied by the Administrative Agent.


 


“Affiliate” of any Person, means any
other Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person or any
Subsidiary of such Person.  The term
“control” (including the terms “controlled by” or “under common control with”)
means the possession, directly or indirectly, of the power to (a) vote or
direct the voting of 10% or more of the outstanding shares of Voting Stock of
such Person or (b) direct or cause the direction of the management and
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise.


 


2
















 


“Agreement” means this Third Amended
and Restated Credit Agreement dated as of November 17, 2008 among the
Borrowers, the Guarantors, the Lenders, and the Administrative Agent, as it may
be amended or modified and in effect from time to time.


 


“Applicable Lending Office” means (a) with
respect to any Revolving Lender, the office, branch, subsidiary, affiliate or
correspondent bank of such Lender specified in its Administrative Questionnaire
or such other office, branch, subsidiary, affiliate or correspondent bank as
such Lender may from time to time specify to the Borrowers and the
Administrative Agent from time to time and (b) with respect to the
Administrative Agent or any Bridge Lender, the address specified for such
Person on Schedule 10.02 or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the other parties.


 


“Applicable Margin” means, with
respect to Revolving Advances of any Type, letter of credit fees or commitment
fees, (a) for any day from the Closing Date through March 6, 2009 or,
if on March 6, 2009 an uncured default under Section 2.07(c)(i) shall
exist, until such uncured default has been cured or waived, the applicable
percentage rate per annum set forth below:


 


	
  Revolving Advances

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eurodollar

  Advances

  	
   

  	
  Base Rate

  Advances

  	
   

  	
  Commitment Fees

  	
   

  	
  Letter of Credit Fees

  	
   

  
	
  4.000

  	
  %

  	
  3.000

  	
  %

  	
  0.500

  	
  %

  	
  3.750

  	
  %

  



 


; and (b) for any day thereafter, the applicable percentage rate
per annum set forth below:


 


	
  Revolving Advances

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eurodollar

  Advances

  	
   

  	
  Base Rate

  Advances

  	
   

  	
  Commitment Fees

  	
   

  	
  Letter of Credit Fees

  	
   

  
	
  3.000

  	
  %

  	
  2.000

  	
  %

  	
  0.500

  	
  %

  	
  2.750

  	
  %

  



 


“Arranger” means SG in its capacity as
lead arranger and sole bookrunner.


 


“Asset Disposition” or “Dispose”
means the disposition, whether by sale, lease, license, transfer, loss, damage,
destruction, condemnation or otherwise, of any or all of the Property of the
Parent or any of its Subsidiaries other than (a) any sale or issuance of
Equity Interests of any of the Parent’s Subsidiaries to any Loan Party, (b) sales
of inventory in the ordinary course of business, (c) dispositions of
assets having a fair market value of $2,000,000.00 or less individually or in
the aggregate of $5,000,000.00 or less in any fiscal year of the Parent, (d) dispositions
of accounts to LDCs under guaranteed receivables agreements entered into in the
ordinary course of business and (e) dispositions of assets which have
become obsolete or no longer useful in the business of any Loan Party.


 


3

















 


“Assignment and Acceptance” shall mean
an assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Section 10.06),
and accepted by the Administrative Agent, in substantially the form of Exhibit A
or any other form approved by the Administrative Agent in its sole discretion
and the Borrowers, which consent by the Borrowers shall not be unreasonably
withheld or delayed.


 


“Attributable Indebtedness” means, on
any date, (a) in respect of any Capital Lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP and (b) in respect of any
Synthetic Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease.


 


“Audited Financial Statements” means
the audited consolidated balance sheet of the Parent and its Subsidiaries for
the fiscal years ended June 30, 2006, June 30, 2007, and June 30,
2008 together with the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year of the Parent and its
Subsidiaries including the notes thereto and including an unaudited
reconciliation from GAAP to Non-GAAP Financial Reporting.


 


“Base Rate Advance” means a Revolving
Advance that bears interest at a rate determined by reference to the Adjusted
Base Rate.


 


“Beneficial Owner” has the meaning
assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange
Act.


 


“Blocked Accounts” has the meaning set
forth in Section 5.13(b).


 


“Borrowing” means a Revolving
Borrowing or a Bridge Borrowing, as the context requires.


 


“Borrowing Base” means, as of any date
of determination, an amount equal to the sum of the following (without
duplication), determined as of the date of the Borrowing Base Report then most
recently delivered pursuant to this Agreement, but subject to such additional
eligibility requirements and reserves as may be reasonably determined by the
Administrative Agent after consultation with the Borrowers (but not subject to
the Borrowers’ approval thereof):


 


(a)           an
amount equal to 100% of cash and Cash Equivalents of the Borrowers and their
Subsidiaries in Dollars that are subject to an Acceptable Security Interest;
plus


 


(b)           90%
of Tier I Eligible Accounts; plus


 


(c)           80%
of Tier II Eligible Accounts; plus


 


(d)           85%
of Tier I Unbilled Eligible Accounts; plus


 


(e)           80%
of Tier II Unbilled Eligible Accounts; plus


 


(f)            80%
of the positive value of Eligible Exchange Accounts; plus


 


4

















 


(g)           80%
of the positive value of Imbalances; plus


 


(h)           85%
of Eligible Inventory; plus


 


(i)            85%
of Eligible LDC Residual Contract Rights; plus


 


(j)            80%
of Undelivered Product Value; minus


 


(k)           120%
of the Swap Termination Value owed by a Borrower or any of its Subsidiaries for
any Swap Contract between a Borrower or any of its Subsidiaries and a Swap
Counterparty; minus


 


(l)            100%
of First Purchaser Liens; plus


 


(m)          (i) $35,000,000.00
from the Closing Date through December 12, 2008; (ii) $25,000,000.00
from December 13, 2008 through and including December 26, 2008; (iii) $20,000,000.00
from December 27, 2008 through and including January 9, 2009, (iv) $15,000,000.00
from January 10, 2009 through and including February 6, 2009; (v) $10,000,000.00
from February 7, 2009 through and including February 27, 2009, and (vi) $5,000,000.00
from February 28, 2009 through and including March 6, 2009.


 


“Borrowing Base Availability” means
the excess, if any, of the Borrowing Base over the sum of the Revolving
Advances and the Letter of Credit Exposure.


 


“Borrowing Base Report” means a
certificate and schedule duly executed by a Financial Officer of the Parent
appropriately completed and in substantially the form of Exhibit B.


 


“Borrowing Date” means the date on
which any Revolving Advance is made or any Letter of Credit is issued
hereunder.


 


“Bridge Borrowing” means the borrowing
consisting of simultaneous Bridge Loans made on the Closing Date.


 


“Bridge Lenders” means the lenders
listed on the signature pages of this Agreement that hold Bridge Loans and
any other Person that has become a party hereto pursuant to an Assignment and
Acceptance that holds Bridge Loans (other than any such Person that has ceased
to be a party hereto pursuant to an Assignment and Acceptance).


 


“Bridge Loans” means the loans made in
the initial aggregate principal amount of $10,400,000.00 to the Borrowers by
the Bridge Lenders pursuant to Section 2.01(d).


 


“Bridge Note” means a promissory note
made by the Borrowers in favor of a Bridge Lender evidencing Bridge Loans made
by such Bridge Lender substantially in the form of Exhibit E-2.


 


“Bridge Obligations” means all
advances to, and debts, liabilities, obligations, covenants and duties of, any
Loan Party arising under any Loan Document or otherwise with respect to any
Bridge Loan, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and


 


5

















 


fees that accrue
after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.


 


“Bridge Obligations Payment Conditions”
has the meaning given such term in Section 6.14(b).


 


“Bridge Pro Rata Share” means, with
respect to each Bridge Lender at any time, the ratio (expressed as a
percentage) of such Bridge Lender’s aggregate outstanding Bridge Loans at such
time to the aggregate outstanding Bridge Loans of all the Bridge Lenders at
such time.  The initial Bridge Pro Rata
Share of each Bridge Lender is set forth opposite the name of such Bridge
Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Bridge Lender becomes a party hereto, as applicable.


 


“Business Day” means any day other
than a Saturday, Sunday or other day on which commercial banks are authorized
to close under the laws of, or are in fact closed in, New York and, if such day
relates to any Eurodollar Advance, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.


 


“Capital Expenditures” means all
expenditures of any Person in respect of the purchase or other acquisition,
construction or improvement of any fixed or capital assets that are required to
be capitalized under GAAP on a balance sheet as property, plant, equipment or
other fixed assets or intangibles; provided, however that Capital Expenditures
shall in any event exclude (a) normal replacements and maintenance which
are properly charged to current operations and (b) amounts expended with
the proceeds of insurance to repair or replace fixed or capital assets.


 


“Capital Lease” of a Person means any
lease of any Property by such Person as lessee that would, in accordance with
GAAP, be required to be classified and accounted for as a capital lease on the
balance sheet of such Person.


 


“Cash Equivalents” 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 S&P or from Moody’s;


 


(c)           investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, the
Administrative Agent or any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof that has a
combined capital and surplus and undivided profits of not less than
$500,000,000.00;


 


6

















 


(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 of clause (c) above; and


 


(e)           investments
in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested
in investments of the type described in clauses (a) through (d) above.


 


“Change in Law” means the occurrence,
after the Closing Date, of any of the following: (a) the adoption of
taking effect of any law, rule, regulation or treaty, (b) any change in
any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or
issuance of any request, guideline or directive (whether or not having the
force of law) by any Governmental Authority (other than any request, guideline
or directive that provides that compliance is optional and that there is no
penalty or charge of any kind for failure to comply).


 


“Change of Control” means the
occurrence of any of the following events:


 


(a)           prior
to the consummation of an Initial Public Offering, (i) the failure of
Jeffrey Mayer (the “Key Executive”) to be employed by the Parent on a
full-time basis in his capacity as President and Chief Executive Officer and
involved in the day-to-day operations of the Parent and its Subsidiaries and (ii) if
such failure is due to death, accident, illness, or legal incapacity of the Key
Executive and the Key Executive is not replaced within 90 days after such
failure with an executive consented to by the Majority Banks in writing;


 


(b)           the
failure of either Borrower to be a Wholly-Owned Subsidiary of the Parent;


 


(c)           except
for the consummation of an Initial Public Offering, the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Parent and its
Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of
the Exchange Act, but excluding any employee benefit plan of the Parent or any
of its Subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan);


 


(d)           except
for the consummation of an Initial Public Offering, the consummation of any
transaction (including any merger or consolidation) the result of which is that
any “person” (as defined above) (other than Sowood, Charterhouse Group, Inc.,
Greenhill Capital Partners, Jeffrey Mayer or Carol Roberta Artman-Hodge (or any
of their Affiliates)) becomes the Beneficial Owner, directly or indirectly, of
more than 25% of the Voting Stock of the Parent, measured by voting power
rather than number of shares;


 


(e)           prior
to the consummation of an Initial Public Offering, Sowood fails to be the
Beneficial Owner, directly or indirectly, of at least 20% of the Voting Stock
of the Parent;


 


(f)            prior
to the consummation of an Initial Public Offering, the first day on which a
majority of the members of the Board of Directors of the Parent are not
Continuing Directors; or


 


7

















 


(g)           the
Parent consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Parent, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of the
Parent or such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where the Voting Stock of the
Parent outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).


 


“Charter Bridge Loans” means the
Bridge Loans made by Charter Mx LLC.


 


“Closing Date” means November 17,
2008.


 


“Code” means the United States
Internal Revenue Code of 1986, as amended, reformed or otherwise modified from
time to time, and any successor statute and all rules and regulations
promulgated thereunder.


 


“Collateral” means all the
“Collateral” as defined in any Security Document.


 


“Collecting Banks” has the meaning set
forth in Section 5.13.


 


“Compliance Certificate” means a
Compliance Certificate signed by a Financial Officer of the Parent in
substantially the form of the attached Exhibit C.


 


“Consolidated Current Assets” means,
as to any Person at any date, all amounts which would, in conformity with GAAP,
be included under current assets (other than amounts owing to such Person from
an Affiliate (other than a Subsidiary of such Person) thereof) on a balance
sheet of such Person determined on a consolidated basis at such date.


 


“Consolidated Current Liabilities”
means, as to any Person at any date, (a) all amounts which would, in
conformity with GAAP, be included under current liabilities on a balance sheet
of a Person plus (b) to the extent not included in the foregoing clause
(a), all outstanding Revolving Advances, Bridge Loans, interest accrued or
payable on the Bridge Loans, and Reimbursement Obligations, all determined on a
consolidated basis at such date.


 


“Consolidated EBITDA” means, for any
period, without duplication, the sum of the following for the Parent and its
Subsidiaries on a consolidated basis, each calculated for such period:


 


(a)           Consolidated
Net Income for such period of determination plus


 


(b)           to
the extent deducted in determining Consolidated Net Income, Consolidated
Interest Expense, charges against income for foreign, federal, state, and local
taxes, depreciation and amortization expense and other non-cash charges,
extraordinary, unusual or non-recurring expenses or losses, amortization or
write off of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with letters of credit or Debt (including
the fees and expenses set forth on Schedule 1.01(d)), and any losses on
sales of assets outside the ordinary course of business minus


 


8

















 


(c)           extraordinary
or non-recurring gains for such period minus


 


(d)           any
gain realized upon the sale or other disposition of any assets of the Parent or
any of its Subsidiaries for such period (other than in the ordinary course of
business) minus


 


(e)           the
income of any Person (other than Wholly-Owned Subsidiaries of the Parent) in
which the Parent or a Wholly-Owned Subsidiary of the Parent has an ownership
interest except to the extent such income is received by the Parent or such
Wholly-Owned Subsidiary in a cash distribution during such period, all as
determined on a consolidated basis in accordance with GAAP, plus the
loss or minus


 


(f)            the
income of any Person accrued prior to the date it becomes a Subsidiary of the
Parent or is merged into or consolidated with the Parent or any of its
Subsidiaries, plus losses or minus gains


 


(g)           from
non-cash gains, losses or adjustments under FASB Statement 133 as a result of
changes in the fair market value of derivatives, plus losses or minus
gains


 


(h)           from
settled financial hedges with a term of one year or less for inventory before
it is sold to customers, plus


 


(i)            an
amount equal to any non-cash negative impact on earnings from the write down of
inventory during such period due to the application of the weighted average
cost method of inventory valuation for natural gas, minus


 


(j)            an
amount equal to any non-cash positive impact on earnings from the write up of
inventory during such period due to the application of weighted average cost
method of inventory valuation for natural gas, plus


 


(k)           an
amount equal to any non-cash negative impact on earnings from the write down of
inventory as a result of a lower of cost or market valuation.


 


The aggregate amount of any increase to
Consolidated EBITDA from clauses (i) through (k) above during such
period is limited to the amount of positive mark-to-market value as of the end
of such period, if any, of the Borrowers’ natural gas hedges which were entered
into to hedge the inventory.


 


“Consolidated Interest Expense” means,
for any period, the interest expense net of interest income of the Parent and
its Subsidiaries calculated on a consolidated basis in accordance with GAAP for
such period excluding, however, the expensing or amortization of upfront fees
and discounts paid in connection with this Agreement, the Existing Credit
Agreement, the First Amended and Restated Credit Agreement dated as of August 1,
2006 among the lenders party thereto, the Borrowers and the Guarantors, the
Administrative Agent, the Senior Notes, the Master Transaction Agreement, and the
renewal and replacement of the Master Transaction Agreement.


 


“Consolidated Net Income” means, for
any period, (a) for all purposes other than Section 6.17, the
net income of the Parent and its Subsidiaries calculated on a consolidated
basis for such


 


9

















 


period after
taxes, as determined in accordance with GAAP and (b) for purposes of Section 6.17
only, the result of the following for the Parent and it Subsidiaries on a
consolidated basis, each calculated for such period beginning with the fiscal
period ending June 30, 2008:


 


(i)            the
net income after taxes, as determined in accordance with GAAP plus


 


(ii)           non-cash
losses to the extent they reduced Consolidated Net Income under FASB Statement
133 as a result of changes in the fair market value of derivatives minus


 


(iii)          non-cash
gains to the extent they increased Consolidated Net Income under FASB Statement
133 as a result of changes in the fair market value of derivatives plus
losses or minus gains


 


(iv)          from
settled financial hedges with a term of one year or less for inventory before
it is sold to customers, plus


 


(v)           an
amount equal to any non-cash negative impact on earnings from the write down of
inventory during such period due to the application of the weighted average
cost method of inventory valuation for natural gas, minus


 


(vi)          an
amount equal to any non-cash positive impact on earnings from the write up of
inventory during such period due to the application of weighted average cost
method of inventory valuation for natural gas, plus


 


(vii)         an
amount equal to any non-cash negative impact on earnings from the write down of
inventory as a result of a lower of cost or market valuation.


 


The aggregate amount of any increase in
Consolidated Net Income from clauses (v) through (vii) above during
such period is limited to the amount of positive mark-to-market value as of the
end of such period, if any, of the Borrowers’ natural gas hedges which were
entered into to hedge the inventory subject to such adjustments.


 


“Consolidated Tangible Net Worth”
means, as of any date of determination, for the Parent and its Subsidiaries on
a consolidated basis, (a) Shareholders’ Equity of the Parent and its
Subsidiaries on that date minus (b) the Intangible Assets of the
Parent and its Subsidiaries on that date, minus (c) assets that are
the result of non-cash gains or adjustments under FASB Statement 133 as a
result of changes in the fair market value of derivatives, plus (d) liabilities
that are the result of non-cash losses or adjustments under FASB Statement 133
as a result of changes in the fair market value of derivatives minus (e) any
Accounts due from any Affiliates (other than Subsidiaries) of the Parent plus
or minus (f) the Preferred Stock Adjustment, as applicable, plus
(g) the book value of customer accounts plus losses or minus
gains (h) from settled financial hedges with a term of one year or less
for inventory before it is sold to customers for the 12-month period ending as
of such date plus (i) non-cash compensation expenses from July 1,
2006 through such date to the extent included in the calculation of
Consolidated Net Income for such period, plus (j) an amount equal
to any non-cash negative impact on earnings from the write down of inventory
during such period due to the application of the weighted average cost method
of inventory valuation for natural gas for the 12-month period ending on such
date, minus (k) an amount equal to any non-cash positive impact on
earnings from the write up of inventory during


 


10

















 


such period
due to the application of weighted average cost method of inventory valuation
for natural gas for the 12-month period ending on such date, plus (l) an
amount equal to any non-cash negative impact on earnings from the write down of
inventory as a result of a lower of cost or market valuation for the 12-month
period ending on such date.  The
aggregate amount of any increase in Consolidated Tangible Net Worth from
clauses (j) through (l) above during such period is limited to the
amount of positive mark-to-market value as of the end of such period, if any,
of the Borrowers’ natural gas hedges which were entered into to hedge the
inventory subject to such adjustments.


 


“Consolidated Working Capital” means (a) Consolidated
Current Assets of the Parent (excluding all non-cash assets under FASB 133 and
any accounts due from any Affiliates (other than any Subsidiary) of the Parent)
minus (b) Consolidated Current Liabilities of the Parent (excluding
non-cash obligations under FASB 133 and any accounts due from any Affiliates
(other than any Subsidiary) of the Parent) plus (c) any applicable
Preferred Stock Adjustment to current liabilities.


 


“Continue”, “Continuation”, and
“Continued” each refers to a continuation of Revolving Advances for an
additional Interest Period upon the expiration of the Interest Period then in
effect for such Revolving Advances.


 


“Continuing Directors” means, as of
any date of determination, any member of the Board of Directors of the Parent
who (a) was a member of such Board of Directors on the Closing Date or (b) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.


 


“Convert”, “Conversion”, and “Converted”
each refers to a conversion of Revolving Advances of one Type into Revolving
Advances of another Type pursuant to Section 2.02(b).


 


“Debt,” means, for any Person, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:


 


(a)           all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments;


 


(b)           obligations
of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business);


 


(c)           Capital
Leases;


 


(d)           all
obligations of such Person in respect of letters of credit, bankers’
acceptances, bank guarantees, surety bonds or similar instruments which are
issued upon the application of such Person or upon which such Person is an
account party or for which such Person is in any way liable;


 


(e)           net
obligations of such Person under any Swap Contract;


 


(f)            Off-Balance
Sheet Liabilities;


 


11

















 


(g)           indebtedness
secured by a Lien on Property now or hereafter owned or acquired by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse (provided, that if such Person has not
assumed or otherwise become liable in respect of such Debt, such Debt shall be
deemed to be in an amount equal to the lesser of the amount of such Debt and
the fair market value of the Property encumbered by such Lien); and


 


(h)           all
Guarantees of such Person in respect of any of the foregoing.


 


For all purposes hereof, the Debt of any
Person shall include the Debt of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in which
such Person is a general partner or a joint venturer, unless such Debt is
expressly made non-recourse to such Person. 
The amount of any net obligation under any Swap Contract on any date
shall be deemed to be the Swap Termination Value thereof as of such date.  The amount of any Capital Lease or
Off-Balance Sheet Liability as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.


 


“Default” means (a) an Event of
Default or (b) any event or condition which with notice or lapse of time
or both would, unless cured or waived, become an Event of Default.


 


“Dollars” and “$” means the
lawful money of the United States of America.


 


“Domestic Subsidiary” means a
Subsidiary that is organized or incorporated under the laws of the United
States or a State thereof.


 


“Eligible Accounts” means, as at any
date of determination, accounts payable in Dollars of a Borrower or any of its
Subsidiaries resulting from the sale of electricity or natural gas in the
United States of America:


 


(a)           in
which the Administrative Agent has an Acceptable Security Interest;


 


(b)           that
consist of valid, bona fide accounts receivable and contract receivables, each
owed to and owned by a Borrower or one of its Subsidiaries arising out or resulting
from goods actually sold and delivered or for services fully rendered by such
Loan Party;


 


(c)           that
are payable within 30 days after the invoice date and not unpaid for more than
60 days after the due date specified in the original invoice or after the
invoice date if no due date was specified;


 


(d)           that
are otherwise eligible with respect to which the account debtor is owed a
credit, discount, allowance or other similar adjustment by a Borrower or one of
its Subsidiaries, but only to the extent such accounts are not subject to such
credit, discount, allowance or other similar adjustment;


 


(e)           with
respect to which the account debtor is not a Governmental Authority, unless, to
the extent required, such Borrower has, with respect to such accounts, complied
with the Federal Assignment of Claims Act of 1940 as amended (31 U.S.C. Section 3727
et seq.) or any applicable statute or municipal ordinance of similar purpose
and effect;


 


12
















 


(f)            with
respect to which the account debtor is not an Affiliate of the Parent or a
director, officer, agent, stockholder or employee of the Parent or any of its
Affiliates;


 


(g)           that
are not due from an account debtor (i) for which more than 50% of the aggregate
amount of accounts of such Person to the Borrowers and their Subsidiaries
collectively has at the time remained unpaid for more than 60 days after due
date specified in the original invoice or after the invoice date if no due date
was specified or (ii) that is in default on any other Debt owed by such
Person to the Borrowers and their Subsidiaries, collectively;


 


(h)           with
respect to which there is no offset or counterclaim or unresolved dispute with
the respective account debtor (but only to the extent such accounts are not
subject to such potential offset or counterclaim or unresolved dispute);


 


(i)            with
respect to which no Borrower has mark-to-market exposure to the account debtor
under any Swap Contracts, including forward sales or purchases of gas, power,
or another commodity, (but only to the extent such accounts exceed such
mark-to-market exposure, net of any letters of credit or cash margin held by
the account debtor to support such mark-to-market exposure);


 


(j)            with
respect to which the account debtor is the subject of no bankruptcy or other
insolvency proceeding;


 


(k)           with
respect to which the account debtor’s obligation to pay is unconditional and
not subject to a repurchase obligation or right to return or with respect to
which the goods or services giving rise to such account have been delivered (or
performed, as applicable) and accepted by such account debtor;


 


(l)            with
respect to which the account debtor is not located in New Jersey or any other
state denying creditors access to its courts in the absence of a Notice of
Business Activities Report or other similar filing, unless the applicable
Borrower or Subsidiary has either qualified as a foreign corporation authorized
to transact business in such state or has filed a Notice of Business Activities
Report or similar filing with the applicable state agency for the then current
year;


 


(m)          with
respect to which the account debtor is not a creditor of a Borrower or any of
its Subsidiaries; provided, however, that any such account shall only be
ineligible as to that portion of such account which is less than or equal to
the amount owed by such Loan Party to such Person;


 


(n)           that,
if no invoice has been issued for such accounts, have been included in a
Borrowing Base Report during not more than one calendar month, excluding the
portion accumulated under budget billing customer plans entered into in the
ordinary course of business; and


 


(o)           that
have not been deemed to be ineligible for borrowing purposes by the
Administrative Agent in its reasonable credit judgment.


 


13

















 


“Eligible Assignee” means, (a) with
respect to assignments of Revolving Advances or Revolving Commitments, (i) a
Revolving Lender, (ii) an Affiliate of a Revolving Lender, and (iii) any
other Person (other than a natural person) approved by the Administrative Agent
in its sole discretion, the Issuing Bank in its sole discretion, and, so long
as no Event of Default exists, the Borrowers, in each case, such approval not
to be unreasonably withheld or delayed, provided that notwithstanding
the foregoing, “Eligible Assignee” with respect to assignments of Revolving
Advances or Revolving Commitments shall not include any Borrower or any of any
Borrower’s Affiliates or Subsidiaries, and (b) with respect to assignments
of Bridge Loans, (i) a Bridge Lender and (ii) an Affiliate of a
Bridge Lender.


 


“Eligible Exchange Account” means the
amount of any account or general intangible of a Borrower or any of its
Subsidiaries that:


 


(a)           would
otherwise be an Eligible Account except that the consideration due to such Loan
Party is natural gas or electricity;


 


(b)           consists
of an enforceable right of such Loan Party to receive natural gas or
electricity in exchange for the sale or trade of natural gas or electricity
previously delivered to the exchange debtor by such Loan Party;


 


(c)           is
evidenced by a written agreement enforceable against the exchange debtor
thereof;


 


(d)           is
valued at the current market price as reasonably determined by the Administrative
Agent;


 


(e)           if
such account or general intangible is from a Tier II Account Party and all such
accounts and general intangibles from such Tier II Account Party exceeds
$500,000.00, it is by a Tier II Account Party listed on the attached Schedule
1.01(a) or pre-approved by the Majority Lenders in their reasonable
credit discretion or it is supported by Acceptable Credit Support;


 


(f)            in
the case of natural gas, provides for the delivery to such Loan Party of
natural gas that will constitute Eligible Inventory, and


 


(g)           has
not been otherwise determined by the Administrative Agent in its sole
discretion to be unacceptable.


 


“Eligible Inventory” means, as at any
date of determination, the value (determined at the current market value as
reasonably determined by the Borrowers and agreed to by the Administrative
Agent) of all inventory owned by a Borrower or any of its Subsidiaries that is
subject to an Acceptable Security Interest. 
Without limiting the generality of the foregoing, the following is not
Eligible Inventory:


 


(a)           inventory
that does not consist of natural gas;


 


(b)           inventory
located at any location other than those identified pursuant to Section 4.24,
as the same may be updated from time to time;


 


14

















 


(c)           inventory
located at a leased location or with a warehouseman, bailee, processor,
supplier or similar third party in each case unless (i) the Administrative
Agent has given its prior consent thereto, (ii) a Lien waiver and
collateral access agreement, in form and substance satisfactory to the
Administrative Agent has been delivered to the Administrative Agent, or (iii) rent
reserves reasonably satisfactory to the Administrative Agent have been
established with respect thereto;


 


(d)           inventory
which the Administrative Agent determines in its reasonable credit judgment is
unacceptable for borrowing purposes due to quality or quantity;


 


(e)           inventory
produced in violation of the Fair Labor Standards Act and subject to the
so-called “hot goods” provisions contained in Title 29 U.S.C. 215 (a)(i) or
any replacement statute;


 


(f)            inventory
located at a vendor’s location or with a consignee;


 


(g)           inventory
with respect to which there is an unresolved claim or dispute with the
respective LDC or other Person that has any contractual rights with respect to
such  inventory (but only to the extent
of the amounts the subject of the unresolved claim or dispute); and


 


(h)           inventory
that has been specifically reserved against by a Borrower or any of its
Subsidiaries.


 


“Eligible LDC Residual Contract Right”
means, as at any date of determination, the value (determined at the current
market value as reasonably determined by the Borrowers and agreed to by the
Administrative Agent) of a Borrower’s or any of its Subsidiaries’ enforceable
right to receive payment for its natural gas that an LDC holds, or to obtain
the return of its natural gas from, an LDC (a) that is subject to an
Acceptable Security Interest, (b) that is approved by the Administrative
Agent in its sole discretion, and (c) with respect to which there is no
offset or counterclaim or unresolved claim or dispute with such LDC (but only
to the extent of the amounts of such offset or counterclaim or unresolved claim
or dispute).


 


“End User” means a retail residential
or commercial or industrial buyer of natural gas or electricity from a Borrower
or any of its Subsidiaries in deregulated energy markets.


 


“Environmental Claim” means any
allegation, notice of violation, action, lawsuit, claim, demand, judgment,
order or proceeding by any Governmental Authority or any Person for liability
or damage, including, without limitation, personal injury, property damage,
contribution, indemnity, direct or consequential damages, damage to the
environment, nuisance, pollution, or contamination, or for fines, penalties,
fees, costs, expenses or restrictions arising under or otherwise related to an
obligation under Environmental Law.


 


“Environmental Law” means all former,
current and future Federal, state, local and foreign laws (including common
law), treaties, regulations, rules, ordinances, codes, decrees, judgments,
directives, orders (including consent orders), and agreements in each case,
relating to protection of the environment, natural resources, human health and
safety or the presence, Release of, or exposure to, Hazardous Materials, or the
generation, manufacture, processing,


 


15

















 


distribution,
use, treatment, storage, transport, recycling or handling of, or the
arrangement for such activities with respect to, Hazardous Materials.


 


“Environmental Liability” shall mean
all liabilities, obligations, damages, losses, claims, actions, suits,
judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation
costs), whether contingent or otherwise, arising out of or relating to (a) compliance
or non-compliance with 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
of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.


 


“Environmental Permit” means any
permit, license, order, approval or other authorization under any Environmental
Law.


 


“Equity Interests” shall mean shares
of capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity interests in
any person, or any obligations convertible into or exchangeable for, or giving
any person a right, option or warrant to acquire, such equity interests or such
convertible or exchangeable obligations.


 


“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended from time-to-time, and any successor
statute and all rules and regulations promulgated thereunder.


 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) under common control with the Parent
within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).


 


“ERISA Event” means (a) a
Reportable Event with respect to a Pension Plan; (b) a withdrawal by the
Parent or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Parent or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than
for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon
the Parent or any ERISA Affiliate.


 


“Eurocurrency Liabilities” has the
meaning assigned to that term in Regulation D.


 


“Eurodollar Advance” means a Revolving
Advance that bears interest based on the Eurodollar Rate.


 


16

















 


“Eurodollar Rate” means, with respect
to a Eurodollar Advance for the relevant Interest Period, the applicable
British Bankers’ Association Interest Settlement Rate for deposits in Dollars
appearing on Page 3750 of the Dow Jones Markets Screen as of 11:00 a.m.
(London, England time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, provided
that if the Dow Jones Markets Screen is not available to the Administrative
Agent for any reason, then the applicable Eurodollar Rate for the relevant
Interest Period shall instead be the rate determined by the Administrative
Agent to be the rate at which SG or one of its Affiliate banks offers to place
deposits in Dollars with first class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, in the approximate amount of SG’s relevant
Eurodollar Advance and having a maturity equal to such Interest Period.


 


“Eurodollar Rate Reserve Percentage”
of any Lender for the Interest Period for any Eurodollar Advance means the
reserve percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage shall
be so applicable) under regulations issued from time-to-time by the Federal
Reserve Board for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities having a term equal to such Interest
Period.  The Eurodollar Rate Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.


 


“Events of Default” has the meaning
set forth in Section 7.01.


 


“Excepted Liens” means:


 


(a)           Liens
for taxes, assessments or governmental charges or levies on its Property if the
same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate proceedings diligently
conducted and for which adequate reserves in accordance with and to the extent
required by GAAP shall have been set aside on its books;


 


(b)           Liens
imposed by law, or arising by operation of law, including, without limitation,
carriers’, warehousemen’s, landlord’s, mechanics’, materialmen’s, and other
similar liens arising in the ordinary course of business which secure payment
of obligations not more than 30 days past due or which are being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves shall have been set aside on the books of the applicable
Person;


 


(c)           Liens
incurred and pledges or deposits made in the ordinary course of business in
connection with worker’s compensation, unemployment insurance or other social
security or retirement benefits, or similar legislation, other than any Lien
imposed by ERISA;


 


(d)           deposits
to secure the performance of bids and leases (other than Debt), statutory
obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred
in the ordinary course of business;


 


17

















 


(e)           easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the applicable Person;


 


(f)            Liens
in the Collateral (which Liens may be superior to the Administrative Agent’s
Lien in the Collateral) subject to the Intercreditor Agreement; and


 


(g)           Liens
on up to $40,000,000.00 in the aggregate of cash and Cash Equivalents (i) deposited
by a Borrower or any of its Subsidiaries in margin accounts with or on behalf
of futures contract brokers or paid over to other counterparties or (ii) pledged
or deposited as collateral to a contract counterparty by a Borrower or any of
its Subsidiaries, in the case of clause (i) or (ii), to
secure obligations with respect to (A) contracts for trading activities in
the ordinary course of business and contracts (including physical delivery,
option (whether cash or financial), exchange, swap and futures contracts) for
the purchase, transmission, distribution, sale, lease or hedge of any
energy-related commodity or service or (B) commodity price management
contracts or derivatives.


 


“Excluded Taxes” means, with respect
to the Administrative Agent, any Lender, the Issuing Bank, or any other
recipient of any payment to be made by or on account of any obligation of the
Borrowers hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) 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 applicable lending
office is located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction in which
the applicable Lender is located and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 2.15),
any withholding tax that is imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party hereto (or designates a new
lending office) or is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with Section 2.11(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrowers with respect to such
withholding tax pursuant to Section 2.11(a).


 


“Existing Credit Agreement” has the
meaning set forth in the recitals.


 


“Federal Funds Effective Rate” means,
for any day, a fluctuating interest 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 for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 10:00 a.m. (New York time) on
such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.


 


“Federal Reserve Board” means the
Board of Governors of the Federal Reserve System or any of its successors.


 


18

















 


“Fee Letters” means (a) the
letter agreement dated as of November 17, 2008 among the Borrowers and the
Revolving Lenders, the fees described in which were paid in full on November 7,
2008, and (b) the letter agreement dated as of November 17, 2008
among the Borrowers and the Administrative Agent.


 


“Financial Officer” for any Person
means the chief financial officer, treasurer or senior financial officer of
such Person, as applicable.


 


“First Purchaser Lien” means all
accounts and inventory which are subject to a Lien securing the obligations of
a “first purchaser” of oil and gas production as provided in Texas Bus. &
Com. Code Section 9.343, or any other similar law in any other
jurisdiction, except for inventory which has been purchased by a Borrower or
any of its Subsidiaries pursuant to a Letter of Credit issued pursuant to this
Agreement.


 


“Foreign Lender” means any Lender that
is organized under the laws of a jurisdiction other than that in which a
Borrower is resident for tax purposes. 
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 Subsidiary” means any
Subsidiary that is not a Domestic Subsidiary.


 


“Fund” means any Person (other than a
natural person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business.


 


“GAAP” means United States generally
accepted accounting principles applied on a consistent basis.


 


“Governmental Authority” means the
government of the United States of America or any other nation, or of any
political subdivision thereof, whether state or local, and any agency, authority,
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 (including
any supra-national bodies such as the European Union or the European Central
Bank).


 


“Governmental Proceedings” means any
action or proceedings by or before any Governmental Authority, including,
without limitation, the promulgation, enactment or entry of any Legal
Requirement.


 


“Guarantors” means (a) the Parent
and each of its Subsidiaries listed on Schedule 1.01(b) and (b) any
other Person that becomes a guarantor of all or a portion of the Obligations.


 


“Guarantee” means, as to any Person,
any (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Debt payable by
another Person (the “primary obligor”) in any manner, whether directly
or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Debt, (ii) to purchase
or lease


 


19

















 


property,
securities or services for the purpose of assuring the owner of such Debt of
the payment or performance of such Debt, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
or level of income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Debt, or (iv) entered into for the purpose of
assuring in any other manner the owner of such Debt of the payment or
performance thereof or to protect such owner against loss in respect thereof
(in whole or in part), or (b) any Lien on any assets of such Person
securing any Debt of any other Person, whether or not such Debt is assumed by
such Person; provided, however, that the term “Guarantee” shall
not include endorsements for collection or deposit in the ordinary course of
business.  The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable amount of
the related primary obligation, or portion thereof, in respect of which such Guarantee
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith.  The term “Guarantee” as a verb
has a corresponding meaning.


 


“Hazardous Material” means (a) any
petroleum products or byproducts and all other hydrocarbons, coal ash, radon
gas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
chlorofluorocarbons and all other ozone-depleting substances and (b) any
chemical, material, substance or waste that is prohibited, limited or regulated
by or pursuant to any Environmental Law.


 


“Imbalances” means, for any period,
the difference between the amount of natural gas or electricity delivered by
the Borrowers and their Subsidiaries to an LDC during such period and the
amount of natural gas or electricity consumed by End Users that such LDC
supplies during the same period that are subject to an Acceptable Security
Interest.  For the purposes of calculating
the Borrowing Base, (a) positive Imbalances will only be included to the
extent that those Imbalances are reconciled by the applicable LDC on a monthly
basis in a written report that such LDC generates and is timely delivered to
the Administrative Agent and (b) negative Imbalances will be offset
against (i) first, the maximum amount available to be drawn under a Letter
of Credit or surety bond issued for the benefit of such LDC and (ii) second,
Eligible Residual LDC Contract Rights, Eligible Accounts and Eligible Inventory
of the Borrowers and their Subsidiaries controlled by or in the possession of a
LDC.


 


“Indemnified Taxes” means any Taxes
other than Excluded Taxes.


 


“Initial Public Offering” means an
underwritten public offering of shares of the Parent wherein the aggregate net
proceeds to the Parent are at least $50,000,000.00.


 


“Intangible Assets” means assets that
are considered to be intangible assets under GAAP, including customer lists,
goodwill, computer software (other than systems software if accounted as a
tangible asset under GAAP), copyrights, trade names, trademarks, patents,
franchises, licenses, unamortized deferred charges, unamortized debt discount
and capitalized research and development costs.


 


“Intercreditor Agreement” means the
Intercreditor Agreement dated as of December 19, 2005 among the Loan
Parties, the Secured Counterparty party thereto, Sowood and the Administrative
Agent, as amended.


 


20

















 


“Interest Period” means, for each
Eurodollar Advance comprising part of a Borrowing, the period commencing on the
date of such Eurodollar Advance or the date of the Conversion of any existing
Base Rate Advance into such Eurodollar Advance and ending on the last day of
the period selected by the applicable Borrower pursuant to the provisions below
and Section 2.02 and, thereafter, each subsequent period commencing
on the last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the applicable Borrower pursuant to the
provisions below and Section 2.02. 
The duration of each such Interest Period shall be one month; provided,
however, that:


 


(a)           Interest
Periods commencing on the same date for Revolving Advances by each Revolving
Lender comprising part of the same Borrowing shall be of the same duration;


 


(b)           whenever
the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur
on the next succeeding Business Day, provided that if such extension would
cause the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the next
preceding Business Day;


 


(c)           any
Interest Period which begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of
the calendar month in which it would have ended if there were a numerically corresponding
day in such calendar month; and


 


(d)           no
Borrower may select any Interest Period for any Revolving Advance which ends
after the Maturity Date.


 


“Investment” of any Person means any
investment of such Person so classified under GAAP, and whether or not so
classified, any loan, advance (other than prepayments or deposits made in the
ordinary course of business), extension of credit that constitutes Debt of the
Person to whom it is extended, any direct or indirect guaranty of the
obligations of such Person, or contribution of capital by such Person; and any
stocks, bonds, mutual funds, partnership interests, notes (including structured
notes), debentures or other securities owned by such Person (but excluding
capital expenditures of such Person determined in accordance with GAAP).


 


“Investment Grade Rating” of a Person
means that such Person has a minimum unenhanced investment grade rating on its
senior unsecured debt securities of at least BBB- as determined by S&P, and
Baa3 as determined by Moody’s.


 


“Issuing Bank” means SG and any
successor Issuing Bank pursuant to Section 2.14(h).


 


“LC Cash Collateral Account” means
special cash collateral accounts pledged by each Borrower to the Administrative
Agent for the benefit of the Secured Parties containing cash deposited pursuant
to Section 2.07(c), 2.14(e), 3.01(n), 7.02 or 7.03
to be maintained at the Administrative Agent’s office in accordance with Section 2.14(g) and
be invested in the Administrative Agent’s reasonable discretion.


 


21

















 


“LDC” means a local distribution
company that supplies natural gas or electricity beyond the “citygate” or other
specified delivery point to the End User on behalf of a Borrower or any of its
Subsidiaries and includes, without limitation, those LDCs set forth on Schedule
1.01(c).


 


“Legal Requirement” means, as to any
Person, any law, statute, ordinance, decree, award, requirement, order, writ,
judgment, injunction, rule, regulation (or official interpretation of any of
the foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority which is binding on such Person.


 


“Lenders” means the Revolving Lenders
and the Bridge Lenders.


 


“Letter of Credit” means any letter of
credit issued hereunder.


 


“Letter of Credit Application” means (a) a
request for issuance of a Letter of Credit in substantially the form of the
attached Exhibit D and (b) 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 Bank.


 


“Letter of Credit Documents” means,
with respect to any Letter of Credit, such Letter of Credit, the related Letter
of Credit Application and any agreements, documents, and instruments entered
into in connection with or relating to such Letter of Credit.


 


“Letter of Credit Exposure” means, at
any time, the sum of (a) the aggregate undrawn maximum face amount of each
Letter of Credit at such time and (b) the aggregate unpaid amount of all
Reimbursement Obligations owing with respect to such Letters of Credit at such
time.


 


“Letter of Credit Obligations” means
any obligations of the Borrowers under this Agreement in connection with the
Letters of Credit, including the Reimbursement Obligations.


 


“Leverage Ratio” means, as of any date
of determination, the ratio of (a) Total Funded Debt on such date, to (b) Consolidated
EBITDA for the period of the twelve months most recently ended for which
financial statements are available.  For
purposes of calculating the Leverage Ratio, (i) under Section 6.21,
Total Funded Debt shall be based on the month-end average for the last 12
months most recently ended, and (ii) under Section 6.22, Total
Funded Debt shall be determined as of the end of each month.


 


“Lien” shall mean, with respect to any
asset, (a) any mortgage, deed of trust, lien (statutory or other), pledge,
assignment, preference, deposit arrangement, encumbrance, charge, security
interest, priority or other security or preferential arrangement of any kind or
nature whatsoever, whether voluntary or involuntary in or on 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) 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.


 


“Liquidity Event” means (i) the
repayment in full of all the Revolving Obligations, the termination of all
outstanding Letters of Credit, and the termination of all Revolving
Commitments, or (ii) an equity contribution into the Parent in an amount
not less than


 


22

















 


$75,000,000.00
in gross proceeds, in each case on terms and conditions satisfactory to the
Administrative Agent and the Majority Lenders in their sole discretion.


 


“Loan Documents” means this Agreement,
any Notes issued pursuant to Section 2.02(g), the Letter of Credit
Documents, the Security Documents, the Fee Letters and each other agreement,
instrument or document executed by any Loan Party or any of their respective
officers at any time in connection with this Agreement, all as amended,
restated, supplemented or modified from time to time.


 


“Loan Party” means any Borrower, the
Parent, any Guarantor and any other Person (other than the Administrative Agent
or any Lender) that is or becomes a party to any Loan Document.


 


“Majority Lenders” means, as of any
date of determination, (a) before the Revolving Commitments terminate,
Revolving Lenders holding at least 51% of the then aggregate Revolving
Commitments and (b) thereafter, Revolving Lenders holding at least 51% of
the aggregate unpaid principal amount of the Revolving Advances and
participation interests in the Letter of Credit Exposure at such time.


 


“Master Transaction Agreement” means
the Master Transaction Agreement dated as of August 1, 2006 between
MxEnergy and SG, as amended through the date hereof and as further amended from
time to time.


 


“Material Adverse Effect” shall mean a
material adverse effect upon (a) the business, results of operations,
prospects, Properties or condition (financial or otherwise) of the Parent and
its Subsidiaries taken as a whole, (b) the ability of any Borrower or the
Loan Parties taken as a whole to perform its or their respective material
obligations under the Loan Documents to which it is a party or (c) the
validity or enforceability against any Loan Party of any of the Loan Documents
or any of the material rights or remedies of the Administrative Agent, the
Issuing Bank, the Revolving Lenders, or the Bridge Lenders thereunder.


 


“Material Contracts” means as of any
date of determination, (a) each of the contracts listed on Schedule
1.01(e), (b) any other similar agreement that supersedes or replaces
the agreement described in clause (a) and (c) any contract of a
Borrower or its Subsidiary with a LDC that provides for more than (i) 10,000
residential End User accounts or (ii) 1,000 commercial or industrial End
User accounts.


 


“Maturity Date” means July 31,
2009.


 


“Maximum Rate” means the maximum
nonusurious interest rate under applicable law (determined under such laws
after giving effect to any items which are required by such laws to be
construed as interest in making such determination, including without
limitation if required by such laws, certain fees and other costs).


 


“Moody’s” means Moody’s Investors
Service, Inc.


 


“Multiemployer Plan” means any
employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Parent or any ERISA Affiliate makes or is obligated


 


23

















 


to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.


 


“Non-GAAP Financial Reporting” means
financial reporting in accordance with GAAP that has been adjusted to exclude (a) non-cash
gains, losses or adjustments under FASB Statement 133, (b) settled hedge
amounts related to purchases of inventory prior to the inventory being sold to
the end customer, and (c) other non-cash charges.


 


“Note” means a Revolving Note or a
Bridge Note, as the context requires.


 


“Notice of Borrowing” means a notice
of borrowing in the form of the attached Exhibit F signed by a
Responsible Officer of the applicable Borrower.


 


“Notice of Conversion or Continuation”
means a notice of conversion or continuation in the form of the attached Exhibit G
signed by a Responsible Officer of the applicable Borrower.


 


“Obligations” means all Revolving
Obligations and all Bridge Obligations.


 


“Off-Balance Sheet Liability” of a
Person means (a) any repurchase obligation or liability of such Person
with respect to accounts or notes receivable sold by such Person, (b) Synthetic
Lease Obligations, or (c) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheets of
such Person, other than any lease that constitutes an Operating Lease.


 


“Operating Lease” of a Person means
any lease of Property (other than a Capital Lease) by such Person as lessee
which has an original term (including any required renewals and any renewals
effective at the option of the lessor) of one year or more.


 


“Other Bridge Loans” means the Bridge
Loans made by Denham Commodity Partners Fund LP and certain members of Parent’s
senior management.


 


“Other Taxes” means 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 under any
other Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.


 


“Parent” means MxEnergy Holdings Inc.


 


“PBGC” means the Pension Benefit
Guaranty Corporation or any entity succeeding to any or all of its functions
under ERISA.


 


“Permitted Liens” has the meaning set
forth in Section 6.01.


 


“Person” means and includes natural
persons, corporations, limited partnerships, general partnerships, limited
liability companies, limited liability partnerships, joint stock companies,
joint ventures, associations, companies, trusts, banks, trust companies, land
trusts, business trusts or other organizations, whether or not legal entities,
and governments and agencies and political subdivisions thereof.


 


24
















 


“Pension Plan” means any
“employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by the Parent or any ERISA Affiliate or to which
the Parent or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five
plan years.


 


“Pledge Agreement” means the First
Amended and Restated Pledge Agreement in substantially the form of Exhibit H
among one or more of the Loan Parties and the Administrative Agent for the
benefit of the Secured Parties.


 


“Preferred Stock Adjustment” means,
beginning with the fiscal period ending June 30, 2008:


 


(a)                                  before a holder of
the Parent’s preferred stock exercises its right to request a redemption of
such preferred stock, (i) the amount for such preferred stock on the
Parent’s consolidated balance sheet (A) excluding accrued dividends on
such preferred stock, shall be treated as equity for the calculation of
Consolidated Tangible Net Worth and (B) including the accrued dividends on
such preferred stock, shall not be treated as Total Funded Debt or a current
liability, and (ii) the accrued dividends on such preferred stock shall
not increase or decrease Consolidated Tangible Net Worth and


 


(b)                                 after a holder of the
Parent’s preferred stock exercises its right to request a redemption of such
preferred stock, the amount for such preferred stock on the Parent’s
consolidated balance sheet (i) if a current liability, shall be treated as
a current liability and as Total Funded Debt, (ii) if a long-term
liability, shall be treated as Total Funded Debt, and (iii) if not a
liability, shall be treated as equity for the calculation of Consolidated
Tangible Net Worth.


 


“Prime Rate” means a fluctuating rate
of interest per annum as shall be in effect from time-to-time equal to the
prime rate of interest publicly announced by the Administrative Agent from time
to time as its prime rate in effect at its principal office in New York City,
whether or not either Borrower has notice thereof, when and as said prime rate
changes.


 


“Property” of any Person means any
interest of such Person in any property or asset (whether real, personal or
mixed, tangible or intangible).


 


“Qualifying Supplier Letter of Credit”
means a Letter of Credit supporting the physical purchase of gas or electricity
by a Borrower in substantially the form of the attached Exhibit J
or other form acceptable to the Administrative Agent.


 


“Regulations T, U, X and D” means
Regulations T, U, X, and D of the Federal Reserve Board, as the same is from
time-to-time in effect, and all official rulings and interpretations thereunder
or thereof.


 


“Reimbursement Obligations” means all
of the obligations of the Borrowers to reimburse the Issuing Bank for amounts
paid by the Issuing Bank under Letters of Credit as established by the Letter
of Credit Applications and Section 2.14(c).


 


25

















 


“Related Parties” means, with respect
to any Person, such Person’s Affiliates and the partners, directors, officers,
employees, agents and advisors of such Person and of such Person’s Affiliates.


 


“Release” means any release, spill,
emission, leaking, dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into or through the environment or within or
upon any building, structure, facility or fixture.


 


“Reportable Event” means any of the
events set forth in Section 4043(c) of ERISA.


 


“Responsible Officer” for any Person
means, the Chief Executive Officer, President, Chief Financial Officer, any
Executive or Senior Vice President, Vice President, Treasurer or any other
member of senior management of such Person.


 


“Restricted Payment” means: (a) the
declaration or making by the Parent or any Subsidiary of any dividend or other
distribution (whether in cash, securities or other property) with respect to
any Equity Interest of such Person; (b) any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any Equity Interests in the Parent or any Subsidiary or any
option, warrant or other right to acquire any such Equity Interests in the
Parent or any Subsidiary; (c) any payment of principal of, premium, if
any, or interest on, any Subordinated Indebtedness; and (d) any management
fee, consulting fee, advisory fee, investment banking or transaction fee or
commission, bonus, salary, or similar remuneration paid or payable, or any
loans, advances or similar investments made, to any Affiliate of the Parent or
any payment to any such Affiliate with respect to any allocation of overhead
costs and expenses, excluding salaries, bonuses and commissions payable to
officers, directors and employees and directors’ fees and executive
compensation and benefits, in each case, payable in the ordinary course of
business consistent with past practice.


 


“Revolving Advance” means a loan made
pursuant to Section 2.01(a) by a Revolving Lender to a
Borrower as part of a Revolving Borrowing and refers to a Base Rate Advance or
a Eurodollar Advance.


 


“Revolving Borrowing” means a
borrowing consisting of simultaneous Revolving Advances of the same Type made,
converted or continued on the same Business Day, and, in the case of Eurodollar
Advances, as to which a single Interest Period is in effect.


 


“Revolving Commitment” means, as to
each Revolving Lender, its obligation to (a) make Revolving Advances to
the Borrowers pursuant to Section 2.01 and (b) purchase
participation in Letter of Credit Obligations pursuant to Section 2.14(b),
in an aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Revolving Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Revolving Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Agreement. 
The initial aggregate amount of the Revolving Commitments on the Closing
Date is $245,000,000.00 and reduces to $225,000,000.00 on March 31, 2009,
$200,000,000.00 on April 30, 2009, $175,000,000.00 on May 31, 2009,
and $125,000,000.00 on June 30, 2009.


 


26

















 


“Revolving Lenders” means the lenders
listed on the signature pages of this Agreement that hold Revolving
Advances or Revolving Commitments and any other Person that has become a party
hereto pursuant to an Assignment and Acceptance that holds Revolving Advances
or Revolving Commitments (other than any such Person that has ceased to be a
party hereto pursuant to an Assignment and Acceptance).


 


“Revolving Note” means a promissory
note made by the Borrowers in favor of a Revolving Lender evidencing Revolving
Advances made by such Revolving Lender substantially in the form of Exhibit E-1.


 


“Revolving Obligations” means all
advances to, and debts, liabilities, obligations, covenants and duties of, any
Loan Party arising under any Loan Document or otherwise with respect to any
Revolving Advance, any Letter of Credit or any Swap Contract to which a
Revolving Lender or its Affiliate is a party, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.


 


“Revolving Pro Rata Share” means, with
respect to each Revolving Lender at any time, (a) before the Revolving
Commitments terminate, the ratio (expressed as a percentage) of such Revolving
Lender’s Revolving Commitment to the aggregate Revolving Commitments of all the
Revolving Lenders at such time and (b) thereafter, the ratio (expressed as
a percentage) of such Revolving Lender’s aggregate outstanding Revolving
Advances at such time to the aggregate outstanding Revolving Advances of all
the Revolving Lenders at such time.  The
initial Revolving Pro Rata Share of each Revolving Lender is set forth opposite
the name of such Revolving Lender on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Revolving Lender becomes a party hereto,
as applicable.


 


“Revolving Termination Date” means the
date on which the Revolving Obligations have been repaid in full in cash, the
Revolving Commitments under this Agreement have been terminated in full, and
all Letters of Credit have expired or been terminated.


 


“Risk Management Policy” has the
meaning set forth in Section 3.01(a)(xiii) and includes any amendment
thereto approved by the Administrative Agent in its sole discretion.


 


“S&P” means Standard &
Poor’s Rating Agency Group, a division of Mc-Graw Hill Companies, Inc., or
any successor that is a national credit rating organization.


 


“SEC” means the Securities and
Exchange Commission, and any successor entity.


 


“Secured Counterparty” has the meaning
set forth in the Intercreditor Agreement.


 


“Secured Counterparty Contracts” means
any gas supply contract or hedging arrangements with a Secured Counterparty.


 


“Secured Counterparty Event” means:


 


27

















 


(a)                                  in the case of a
Secured Counterparty for which any Borrower has received a guaranty from a
Secured Counterparty Parent that has an Investment Grade Rating, the failure of
such Secured Counterparty to be a Wholly-Owned Subsidiary of the Secured
Counterparty Parent;


 


(b)                                 (i) for any
Secured Counterparty that has provided a guaranty of its Secured Counterparty
Parent to a Borrower, such Borrower fails to maintain the guaranty of such
Secured Counterparty Parent or (ii) a Secured Counterparty that has not
delivered a guaranty of its Secured Counterparty Parent or a Secured
Counterparty Parent that has delivered a guaranty for such Secured Counterparty
to a Borrower fails to have an Investment Grade Rating;


 


(c)                                  the mark-to-market
exposure of a Secured Counterparty to a Borrower for which such Borrower has received
a guaranty from a Secured Counterparty Parent exceeds the amount of such
guaranty; or


 


(d)                                 an event of default or
termination event, however described or defined, with respect to a Secured
Counterparty shall occur under a Secured Counterparty Contract.


 


“Secured Counterparty Parent” means a
Person that is the sole direct or indirect owner of the Equity Interests of a
Secured Counterparty.


 


“Secured Parties” means the
Administrative Agent, the Lenders, the Issuing Bank, the Swap Counterparties
and the beneficiaries of each indemnification obligation undertaken by any Loan
Party under any Loan Document.


 


“Security Agreement” means the First
Amended and Restated Security Agreement in substantially the form of Exhibit I
among one or more of the Loan Parties and the Administrative Agent for the
benefit of the Secured Parties, and each other document, instrument or
agreement executed by any Loan Party in connection therewith in order to comply
with the Legal Requirements of any jurisdiction other than the United States of
America or any state thereof.


 


“Security Documents” means the
Security Agreement, the Pledge Agreement and each other document, instrument or
agreement executed in connection therewith or otherwise executed in order to
secure all or a portion of the Obligations.


 


“Senior Notes” means the Parent’s
Floating Rate Senior Notes due 2011 issued under the Indenture dated as of August 4,
2006 among the Parent, the guarantors party thereto, and Law Debenture Trust
Company of New York, as Trustee.


 


“SG” means Société Générale.


 


“Shareholders’ Equity” means, as of
any date of determination, consolidated shareholders equity of the Parent and
its Subsidiaries as of that date determined in accordance with GAAP.


 


“Sowood” means Denham Commodity
Partners Fund LP, a Delaware limited partnership formerly known as Sowood
Commodity Partners Fund LP.


 


“Sowood Document” has the meaning set
forth in the Intercreditor Agreement.


 


28

















 


“Subordinated Indebtedness” means any
Debt of the Parent or any of its Subsidiaries (including the Borrowers) that is
contractually subordinated to the Obligations on terms and in form and
substance reasonably acceptable to the Administrative Agent.


 


“Subsidiary” of a Person means any
corporation, association, partnership or other business entity of which more
than 50% of the outstanding Equity Interests having by the terms thereof
ordinary voting power under ordinary circumstances to elect a majority of the
board of directors or Persons performing similar functions (or, if there are no
such directors or Persons, having general voting power) of such entity
(irrespective of whether at the time Equity Interests of any other class or
classes of such entity shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person. 
Unless otherwise indicated herein, each reference to the term “Subsidiary”
shall mean a Subsidiary of the Parent.


 


“Swap Contract” means (a) any and
all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, commodity futures contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


“Swap Counterparty” means any
Revolving Lender or any Affiliate thereof that is party to a Swap Contract with
a Borrower or one of its Subsidiaries.


 


“Swap Termination Value” means, in
respect of any one or more Swap Contracts, after taking into account the effect
of any legally enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a),
the amount(s) determined as the mark-to-market value(s) for such Swap
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Revolving Lender or any Affiliate of a Revolving Lender).


 


“Synthetic Lease Obligation” means the
monetary obligation of a Person under (a) a so-called synthetic,
off-balance sheet or tax retention lease, or (b) an agreement for the use
or possession of Property creating obligations that do not appear on the
balance sheet of such Person but which, upon the insolvency or bankruptcy of
such Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).


 


29

















 


“Taxes” means all present or future
taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or
other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.


 


“Tier I Account Party” means an
account debtor (a) that has an Investment Grade Rating, (b) whose
obligations with respect to Eligible Accounts owing to a Borrower is guaranteed
by a Person with an Investment Grade Rating or supported with Acceptable Credit
Support, or (c) that is guaranteed by an LDC or is an LDC, in each case
otherwise approved by the Administrative Agent in its reasonable credit
discretion.


 


“Tier I Eligible Account” means an
Eligible Account due from a Tier I Account Party.


 


“Tier I Unbilled Eligible Account”
means an Eligible Account due from a Tier I Account Party, the invoice for
which has not yet been issued by or on behalf of the applicable Borrower or one
of its Subsidiaries.


 


“Tier II Account Party” means any
account debtor that is not a Tier I Account Party.


 


“Tier II Eligible Account” means an
Eligible Account due from a Tier II Account Party and, if the aggregate amount
of all such Eligible Accounts from such Tier II Account Party are greater than
$500,000.00, then the Majority Lenders shall have approved in their reasonable
credit discretion any amount in excess of $500,000.00.


 


“Tier II Unbilled Eligible Account”
means an Eligible Account due from a Tier II Account Party, the invoice for
which has not yet been issued by or on behalf of the applicable Borrower or one
of its Subsidiaries.


 


“Total Funded Debt” means, as of any
date of determination, for the Parent and its Subsidiaries on a consolidated
basis, the sum of (a) the outstanding principal amount of all obligations,
whether current or long-term, for borrowed money (including (i) Obligations
hereunder, (ii) obligations under the Senior Notes, and (iii) obligations
under the Sowood Documents outstanding on the last Business Day of the month)
and all obligations evidenced by bonds, debentures, notes, loan agreements or
other similar instruments, (b) all purchase money Debt, (c) all
direct obligations arising under bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the
deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business), (e) Attributable Indebtedness
in respect of Capital Leases, (f) without duplication, all Guarantees (but
only to the extent required to be recorded as a liability on the consolidated
financial statements of the Borrower pursuant to GAAP) with respect to
outstanding Debt of the types specified in clauses (a) through (e) above
of Persons other than the Parent or any Subsidiary, (g) any applicable
Preferred Stock Adjustment, and (h)  all Debt of the types referred to in
clauses (a) through (f) above of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability
company) in which the Parent or a Subsidiary is a general partner or joint
venturer, unless such Debt is expressly made non-recourse to the Parent or such
Subsidiary.


 


30

















 


“Trigger
Event” means the occurrence of any of the following:


 


(a)                                  Borrowers
fail to deliver to the Administrative Agent and the Lenders, on or before December 15,
2008, satisfactory evidence that they have retained an investment bank to
obtain a Liquidity Event with respect to the Loan Parties;


 


(b)                                 Borrowers fail to
deliver to the Administrative Agent and the Lenders, on or before December 31,
2008, a plan for a Liquidity Event, which plan shall not contemplate any
financing from any of the Revolving Lenders (excluding any Revolving Lender
that separately agrees to participate in any such financing of a Liquidity
Event);


 


(c)                                  Borrowers fail to
deliver to the Administrative Agent and the Lenders, on or before February 15,
2009, an executed, non-binding letter of intent for a Liquidity Event, which
letter shall not contemplate any financing from any of the Revolving Lenders (excluding
any Revolving Lender that separately agrees to participate in any such
financing of a Liquidity Event);


 


(d)                                 Borrowers fail to
deliver to the Administrative Agent and the Lenders, on or before March 31,
2009, an executed contract for a Liquidity Event, which contract shall not
contemplate any financing from any of the Revolving Lenders (excluding any
Revolving Lender that separately agrees to participate in any such financing of
a Liquidity Event); and


 


(e)  a Liquidity Event shall not have
been consummated on or before May 31, 2009;


 


in each case, on terms and conditions satisfactory to the
Administrative Agent and the Majority Lenders in their sole discretion.


 


“Type” has the meaning set forth in Section 1.04.


 


“UCC” means the Uniform Commercial Code
as in effect on the Closing Date in the State of New York, as amended from time
to time, and any successor statute.


 


“Undelivered Product Value” means an
amount equal to the undrawn face amount of all Qualifying Supplier Letters of
Credit for which the gas or electricity has not yet been physically delivered
to a Borrower, and which, in the case of natural gas, will become Eligible
Inventory upon delivery to a Borrower or will result in an Eligible Account
Receivable or Eligible Exchange Receivable upon delivery to a Person other than
a Borrower.  Values included in this
category, Undelivered Product Value, cannot simultaneously be included in other
Borrowing Base categories.


 


“Unfunded Pension Liability” means the
excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.


 


“U.S. Withholding Taxes” means any
Taxes imposed by way of deduction or withholding by the United States federal
government.


 


31

















 


“Voting Stock” means, with respect to
any Person, Equity Interests of such Person of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of members of the Board of Directors (or Persons
performing similar functions) of such Person.


 


“Wholly-Owned Subsidiary” of any Person
shall mean a subsidiary of such Person of which Equity Interests representing
100% of the Equity Interests are, at the time any determination is being made,
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.


 


Section 1.02                                Computation of Time
Periods.  In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including” and the words “to” and “until” each
means “to but excluding”.


 


Section 1.03                                Accounting Terms.


 


(a)                                  For purposes of this
Agreement, all accounting terms not otherwise defined herein shall be construed
in conformity with, and all financial data (including financial ratios and
other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Annual Financial Statements.


 


(b)                                 If at any time any
Accounting Change (as defined below) would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Borrowers or the Majority Lenders shall so request, the Administrative Agent,
the Lenders and the Borrowers shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Majority Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrowers shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in
GAAP.  “Accounting Changes” means:
(A) changes in accounting principles required by GAAP and implemented by
the Parent; (B) changes in accounting principles recommended by the Parent’s
accountants; and (C) changes in carrying value of the Parent’s or any of
its Subsidiaries’ assets, liabilities or equity accounts resulting from any
adjustments that, in each case, were applicable to, but not included in, the
Audited Financial Statements.


 


(c)                                  In addition, all
calculations and defined accounting terms used herein shall, unless expressly
provided otherwise, when referring to any Person, refer to such Person on a
consolidated basis and mean such Person and its consolidated subsidiaries.


 


Section 1.04                                Types of Advances.  Revolving Advances are distinguished by “Type”.  The “Type” of a Revolving Advance refers to
the determination whether such Revolving Advance is a Eurodollar Advance or a
Base Rate Advance, each of which constitutes a Type.


 


32

















 


Section 1.05                                Miscellaneous.  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 Person’s
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, (e) any reference to any law or regulation herein shall,
unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time and (f) 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.


 


ARTICLE II


 


THE ADVANCES


 


Section 2.01                                The Advances.


 


(a)                                  Revolving Advances.  Each Revolving Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make Revolving
Advances to the Borrowers from time-to-time on any Business Day before the
Maturity Date in an aggregate amount up to but not to exceed at any time
outstanding the lower of (i) its Revolving Pro Rata Share of
$20,000,000.00 and (ii) (A) the lower of (1) its Revolving
Commitment and (2) its Revolving Pro Rata Share of the Borrowing Base, minus
(B) such Revolving Lender’s Revolving Pro Rata Share of the Letter of
Credit Exposure; provided  however that:


 


(i)                                     the
aggregate outstanding principal amount of the sum of all Revolving Advances
plus the Letter of Credit Exposure shall not at any time exceed the lower of (A) the aggregate
amount of the Revolving Commitments and (B) the Borrowing Base; and


 


(ii)                                  the
aggregate outstanding principal amount of the sum of all Revolving Advances
shall not at any time exceed $20,000,000.00.


 


Each Revolving Borrowing shall be in an aggregate amount not less than
$2,000,000.00 and in integral multiples of $1,000,000.00 in excess thereof and
shall consist of Revolving Advances of the same Type made on the same day by
the Revolving Lenders ratably according to their respective Revolving
Commitments.  Within the limits of each
Revolving Lender’s Revolving Commitment, each Borrower may from time-to-time
borrow, prepay pursuant to Section 2.07(b) and reborrow under
this Section 2.01(a).


 


33

















 


(b)                                 [Reserved.]


 


(c)                                  New Revolving
Lenders’ Revolving Commitments through Assignment.  The Administrative Agent shall give the
Revolving Lenders notice of any Eligible Assignee that has notified the
Administrative Agent that it wishes to obtain a Revolving Commitment.  The Revolving Lenders agree that, if an Eligible
Assignee desires to obtain a Revolving Commitment, each Revolving Lender shall
have the right to assign to such Eligible Assignee a percentage of its
Revolving Commitment equal to (i) the amount of the Revolving Commitment
such Eligible Assignee obtains through assignment divided by (ii) the
aggregate amount of Revolving Commitments of the Revolving Lenders agreeing to
assign to such Eligible Assignee.  No
Revolving Lender shall be obligated to assign any portion of its Revolving
Commitment to the Eligible Assignee, but every Revolving Lender shall have the
right to so assign its Revolving Commitment as set forth in the preceding
sentence.  All assignments to Eligible
Assignees (i) shall be made in accordance with Section 10.06
of this Agreement and (ii) shall be ratable among the assigning Revolving
Lenders as set forth in this paragraph (c).


 


(d)                                 Bridge Loans.  Each Bridge Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Bridge Loans to the
Borrowers on the Closing Date in an aggregate amount equal to its Bridge Pro
Rata Share of $10,400,000.00.  Once
repaid, the Bridge Loans may not be reborrowed.


 


Section 2.02                                Method of Borrowing.


 


(a)                                  Notice.  Each Revolving Borrowing shall be made
pursuant to a Notice of Borrowing, given not later than (i) if the Revolving
Borrowing is comprised of Eurodollar Advances, 11:00 a.m. (New York time)
on the third Business Day before the requested Borrowing Date and (ii) if
the Revolving Borrowing is comprised of Base Rate Advances, 11:00 a.m.
(New York time) at least one Business Day in advance of the requested Borrowing
Date, in each case to the Administrative Agent’s Applicable Lending
Office.  The Administrative Agent shall
give to each Revolving Lender prompt notice on the day of receipt of a timely
Notice of Borrowing.  The Notice of
Borrowing shall be in writing specifying (A) the Borrowing Date (which
shall be a Business Day), (B) the requested Type of Revolving Advances
comprising such Revolving Borrowing, (C) the aggregate amount of such
Revolving Borrowing, and (D) if such Revolving Borrowing is to be
comprised of Eurodollar Advances, the requested Interest Period.  In the case of a requested Revolving
Borrowing comprised of Eurodollar Advances, the Administrative Agent shall promptly
notify each Revolving Lender of the applicable interest rate under Section 2.06(a)(ii).  Each Revolving Lender shall make available
its Revolving Pro Rata Share of such Revolving Borrowing before 12:00 p.m.
(New York time) on the Borrowing Date in immediately available funds to the Administrative
Agent at its Applicable Lending Office or such other location as the
Administrative Agent may specify by notice to the Revolving Lenders.  After the Administrative Agent’s receipt of
such funds and upon fulfillment of the applicable conditions set forth in Article III,
the Administrative Agent will promptly make such funds available to the
applicable Borrower not later than 2:00 p.m. (New York time) at such
account as such Borrower shall specify in writing to the Administrative Agent.


 


(b)                                 Conversions and
Continuations.  In order to elect to
Convert or Continue a Revolving Advance under this Section, a Borrower shall
deliver an irrevocable Notice of Conversion or Continuation to the
Administrative Agent at its Applicable Lending Office no


 


34

















 


later than (i) 11:00 a.m. (New York time) at least one
Business Day in advance of such requested Conversion date in the case of a
Conversion of a Eurodollar Advance to a Base Rate Advance or (ii) 11:00 a.m.
(New York time) at least three Business Days in advance of such requested
Conversion date in the case of a Conversion into or Continuation of a
Eurodollar Advance to another Eurodollar Advance.  Each such Notice of Conversion or
Continuation shall be in writing or by telex, telecopier or telephone,
confirmed promptly in writing specifying (A) the requested Conversion or
Continuation date (which shall be a Business Day), (B) the amount, Type of
the Revolving Advance to be Converted or Continued, (C) whether a Conversion
or Continuation is requested, and if a Conversion, into what Type of Revolving
Advance, and (D) in the case of a Conversion to, or a Continuation of, a
Eurodollar Advance, the requested Interest Period.  Promptly after receipt of a Notice of Conversion
or Continuation under this paragraph, the Administrative Agent shall provide
each applicable Lender with a copy thereof and, in the case of a Conversion to
or a Continuation of a Eurodollar Advance, notify each applicable Lender of the
interest rate under Section 2.06(a)(ii) or Section 2.06(b)(ii).  Conversions of Eurodollar Advances and Base
Rate Advances may be made at any time, subject to the obligation of the
Borrowers to pay any amounts required under Section 2.08.  The portion of Revolving Advances comprising
part of the same Borrowing that are Converted to Revolving Advances of another
Type shall constitute a new Borrowing. 
Bridge Loans may not be converted into Eurodollar Advances.


 


(c)                                  Certain
Limitations.  Notwithstanding
anything in paragraphs (a) and (b) above:


 


(i)                                     at
no time shall there be more than eight Interest Periods applicable to
outstanding Eurodollar Advances;


 


(ii)                                  if
any Lender shall, at least one Business Day before the date of any requested
Borrowing, notify the Administrative Agent that any Change in Law makes it
unlawful for such Lender or any of its Applicable Lending Offices to perform
its obligations under this Agreement to make Eurodollar Advances, or to fund or
maintain Eurodollar Advances, the right of the Borrowers to select Eurodollar
Advances from such Lender for such Borrowing or for any subsequent Borrowing
shall be suspended until such Lender shall notify the Administrative Agent that
the circumstances causing such suspension no longer exist, and such Lender’s
Revolving Advance for such Borrowing shall be a Base Rate Advance;


 


(iii)                               if
the Administrative Agent has determined (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for any requested Borrowing and the
Administrative Agent gives telephonic or telecopy notice thereof to the
Borrowers as soon as practicable, the right of the Borrowers to select Eurodollar
Advances for such Borrowing or for any subsequent Borrowing and the obligation
of the Revolving Lenders to make such Eurodollar Advances shall be suspended
until the Administrative Agent shall notify the Borrowers and such Lenders that
the circumstances causing such suspension no longer exist, and each Revolving
Advance comprising such Borrowing shall be a Base Rate Advance;


 


(iv)                              if
the Majority Lenders shall, by 11:00 a.m. (New York time) at least one
Business Day before the date of any requested Borrowing, notify the
Administrative


 


35

















 


Agent that the Eurodollar Rate will not
adequately reflect the cost to such Lenders of making or funding or maintaining
their respective Eurodollar Advances and the Administrative Agent gives
telephonic or telecopy notice thereof to the Borrowers as soon as practicable,
the right of the Borrowers to select Eurodollar Advances for such Borrowing or
for any subsequent Borrowing and the obligation of the Lenders to make Eurodollar
Advances shall be suspended until the Administrative Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist, and each Revolving Advance comprising such Borrowing shall be a
Base Rate Advance;


 


(v)                                 if
either Borrower shall fail to select the duration or Continuation of any
Interest Period for any Eurodollar Advances in accordance with the provisions
contained in the definition of “Interest Period” in Section 1.01
and paragraphs (a) and (b) above or shall fail to deliver a
Notice of Conversion or Continuation, the Administrative Agent will forthwith
so notify the Borrowers and the Lenders and such Revolving Advances will be
made available to such Borrower on the date of such Borrowing as Base Rate
Advances or, if an existing Revolving Advance, Convert into Base Rate Advances;
and


 


(vi)                              no
Revolving Advance may be Converted or Continued as a Eurodollar Advance at any
time when a Default or an Event of Default has occurred and is continuing.


 


(d)                                 Notices Irrevocable.  Each Notice of Borrowing and each Notice of
Conversion or Continuation delivered by a Borrower shall be irrevocable and
binding on such Borrower.  In the case of
the initial Borrowing or any Borrowing which the related Notice of Conversion
or Continuation specifies is to be comprised of Eurodollar Advances, the
Borrowers shall indemnify each Lender against any loss, out-of-pocket cost or
expense actually incurred by such Lender as a result of any failure to fulfill
on or before the Borrowing Date or the date specified in such Notice of
Conversion or Continuation for such Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss, cost
or expense actually incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Revolving Advance
to be made by such Lender as part of such Borrowing when such Revolving
Advance, as a result of such failure, is not made on such date.


 


(e)                                  Administrative
Agent Reliance.  Unless the
Administrative Agent shall have received notice from a Revolving Lender before
the Borrowing Date that such Revolving Lender will not make available to the
Administrative Agent such Revolving Lender’s Revolving Pro Rata Share of the
Borrowing, the Administrative Agent may assume that such Revolving Lender has
made its Revolving Pro Rata Share of such Borrowing available to the
Administrative Agent on the Borrowing Date in accordance with paragraph (a) of
this Section 2.02 and the Administrative Agent may, in reliance
upon such assumption, make available to the applicable Borrower on the
Borrowing Date a corresponding amount. 
If and to the extent that such Revolving Lender shall not have so made
its Revolving Pro Rata Share of such Borrowing available to the Administrative
Agent, such Revolving Lender and the applicable Borrower severally agree to
immediately repay to the Administrative Agent on demand such corresponding
amount, together with interest on such amount, for each day from the date such
amount is made available to such Borrower until the date such amount is repaid
to the Administrative Agent, at


 


36

















 


(i) in the case of such Borrower, the interest rate applicable on
such day to Base Rate Advances and (ii) in the case of such Revolving
Lender, the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.  If such
Revolving Lender shall repay to the Administrative Agent such corresponding
amount and interest as provided above, such corresponding amount so repaid
shall constitute such Revolving Lender’s Revolving Advance as part of such
Borrowing for purposes of this Agreement even though not made on the same day
as the other Revolving Advances comprising such Borrowing.  If such Revolving Lender’s Revolving Advance
as part of such Borrowing is not made available by such Lender within three
Business Days of the Borrowing Date, the applicable Borrower shall repay such
Revolving Lender’s share of such Borrowing (together with interest thereon at
the interest rate applicable during such period to Base Rate Advances) to the
Administrative Agent not later than three Business Days after receipt of
written notice from the Administrative Agent specifying such Revolving Lender’s
share of such Borrowing that was not made available to the Administrative
Agent.


 


(f)                                    Lender
Obligations Several.  The failure of
any Revolving Lender to make a Revolving Advance to be made by it as part of
any Borrowing shall not relieve any other Revolving Lender of its obligation,
if any, to make its Revolving Advance on the applicable Borrowing Date.  The failure of any Bridge Lender to make a
Bridge Loan shall not relieve any other Bridge Lender of its obligation, if
any, to make its Bridge Loan on the Closing Date.  No Lender shall be responsible for the
failure of any other Lender to make a Revolving Advance or Bridge Loan, as
applicable, to be made by such other Lender on any applicable Borrowing Date.


 


(g)                                 Noteless
Agreement; Evidence of Indebtedness.


 


(i)                                     Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting from
the Revolving Advances or Bridge Loans made by such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.


 


(ii)                                  The
Administrative Agent shall also maintain accounts in which it will record (A) the
amount of each Revolving Advance and Bridge Loan made hereunder, the Type
thereof and the Interest Period with respect thereto, (B) the amount of
any principal or interest due and payable or to become due and payable from
each Borrower to each Lender hereunder and (C) the amount of any sum
received by the Administrative Agent hereunder from each Borrower and each
Lender’s share thereof.


 


(iii)                               The
entries maintained in the accounts maintained pursuant to paragraphs (i) and
(ii) above shall be prima facie evidence of the existence and amounts of
the Obligations therein recorded; provided, however, that the
failure of the Administrative Agent or any Lender to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Obligations in accordance with their terms.


 


(iv)                              Any
Lender may request that the Revolving Advances or Bridge Loans, as applicable,
owing to such Lender be evidenced by a Note. 
In such event, each Borrower shall execute and deliver to such Lender a
Note payable to the order of such Lender and


 


37

















 


its registered assigns.  Thereafter, the Revolving Advances or Bridge
Loans, as applicable, evidenced by such Note and interest thereon shall at all
times (including after any assignment pursuant to Section 10.06) be
represented by one or more Notes payable to the order of the payee named
therein or any assignee pursuant to Section 10.06, except to the
extent that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Revolving Advances or Bridge Loans, as
applicable, once again be evidenced as described in paragraphs (i) and (ii) above.


 


Section 2.03                                Fees.


 


(a)                                  Revolving Commitment
Fees.


 


(i)                                     Each
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Lender a commitment fee (a “Commitment Fee”) on the average
daily amount by which such Revolving Lender’s Revolving Commitment exceeds the
sum of (i) the aggregate principal amount of such Revolving Lender’s
outstanding Revolving Advances and (ii) such Revolving Lender’s Revolving
Pro Rata Share of the Letter of Credit Exposure, from the Closing Date until
the Maturity Date at the Applicable Margin for Commitment Fees.  The Commitment Fees payable pursuant to this
clause (a) are payable in arrears on the first Business Day of each
month commencing December 1, 2008 and on the Maturity Date.


 


(ii)                                  The
Borrowers agree to pay to the Administrative Agent, for the account of each
Revolving Lender that is a Lender on the Closing Date, on the second Business
Day of each month commencing in January 2009, a fee equal to 0.05% of such
Revolving Lender’s Revolving Commitment on the first Business Day of each such
month.


 


(b)                                 Agent’s Fees.  The Borrowers, jointly and severally, agree
to pay to the Administrative Agent and the Arranger the fees as separately
agreed upon by the Borrowers in the Fee Letters.


 


(c)                                  Letter of Credit
Fees.


 


(i)                                     The
Borrowers, jointly and severally, agree to pay to the Administrative Agent for
the pro rata benefit of each Revolving Lender with respect to each Letter of
Credit a letter of credit fee at a per annum rate equal to the greater of (A) the
Applicable Margin for Letters of Credit in effect from time to time or (B) $700.00.  Each such fee shall be based on the maximum
amount available to be drawn under such Letter of Credit from the date of
issuance of the Letter of Credit until its expiration date and shall be payable
in arrears on the first Business Day of each month until the earlier of its
expiration date or the Maturity Date. 
All such fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days.


 


(ii)                                  The
Borrowers, jointly and severally, agree to pay to the Issuing Bank a fronting
fee for each Letter of Credit equal to 0.125% per annum of the initial stated
amount of such Letter of Credit (or, with respect to any subsequent increase to
the stated amount of any such Letter of Credit, such increase in the stated
amount).  Each such fee shall be based on
the maximum amount available to be drawn under such Letter of Credit


 


38

















 


from the date of issuance of the Letter of
Credit until its expiration date and shall be payable in arrears on the first
Business Day of each month until the earlier of its expiration date or the
Maturity Date.  All such fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.


 


(iii)                               In
addition, the Borrowers, jointly and severally, agree to pay to the Issuing
Bank all customary transaction costs and fees charged by the Issuing Bank in
connection with the issuance of a Letter of Credit for such Borrower’s account,
such costs and fees to be due and payable on the date specified by the Issuing
Bank in the invoice for such costs and fees.


 


(d)                                 Bridge Loan
Conversion Fees.  The Borrowers,
jointly and severally, agree to pay to the Bridge Lenders the conversion fees
described in the Bridge Notes, as in effect on the Closing Date, in accordance
with the terms thereof, subject to Section 6.14.


 


(e)                                  Generally.  All such fees shall be paid on the dates due,
in immediately available Dollars to the Administrative Agent for distribution,
if and as appropriate, among the Lenders, except that the fees payable pursuant
to Section 2.03(c)(ii) and (iii) shall be paid
directly to the Issuing Bank.  Once paid,
absent manifest error, none of these fees shall be refundable under any
circumstances.


 


Section 2.04                                Reduction of the
Revolving Commitments.


 


(a)                                  The Borrowers shall
have the right, upon at least five days’ irrevocable notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the
unused portion of the Revolving Commitments; provided that each partial
reduction of Revolving Commitments shall be in the minimum aggregate amount of
$5,000,000.00 and in integral multiples of $1,000,000.00 in excess thereof (or
such lesser amount as may then be outstanding); and provided  further that the aggregate amount
of the Revolving Commitments may not be reduced by the Borrower below the
aggregate principal amount of the outstanding Revolving Advances plus
the Letter of Credit Exposure.


 


(b)                                 Any reduction or
termination of the Revolving Commitments pursuant to this Section 2.04
shall be permanent, with no obligation of the Revolving Lenders to reinstate
such Revolving Commitments, and the commitment fees provided for in Section 2.03(a) shall
thereafter be computed on the basis of the Revolving Commitments as so
reduced.  The Administrative Agent shall
give each Revolving Lender prompt notice of any commitment reduction or
termination under Section 2.04(a).


 


Section 2.05                                Repayment of
Revolving Advances and Bridge Loans; Convertibility of Bridge Loans.


 


(a)                                  The Borrowers shall,
jointly and severally, repay the outstanding principal amount of the Revolving
Advances on the Maturity Date.  Each
repayment pursuant to the preceding sentence shall be accompanied by accrued interest
on the amount repaid to the date of such repayment.


 


39
















 


(b)                                 The Borrowers shall,
jointly and severally, repay the outstanding principal amount of the Charter
Bridge Loans on April 6, 2009, subject to Section 6.14.  Each repayment pursuant to the preceding
sentence shall, to the extent permitted by Section 6.14, be
accompanied by accrued and unpaid interest computed in accordance with Section 2.06(b) on
the amount repaid to the date of such repayment.


 


(c)                                  The Borrowers shall,
jointly and severally, repay the outstanding principal amount of the Other
Bridge Loans on the Maturity Date, subject to Section 7.06.  Each repayment pursuant to the preceding
sentence shall, subject to Section 7.06, be accompanied by accrued
and unpaid interest computed in accordance with Section 2.06(b) on
the amount repaid to the date of such repayment.


 


(d)                                 If any Bridge Loan has
not been paid in full in cash prior to April 15, 2009, such Bridge Loan
shall, at the option of the holder of such Bridge Loan, be convertible into
shares of the Parent’s Series B Convertible Preferred Stock as set forth
in the Bridge Notes, as in effect on the date hereof, regardless of whether the
Bridge Obligations Payment Conditions are satisfied on the date of such
conversion.


 


Section 2.06                                Interest.


 


(a)                                  Revolving Advances.  The Borrowers shall, jointly and severally,
pay interest on the unpaid principal amount of each Revolving Advance made by
each Revolving Lender to it from the date of such Revolving Advance until such
principal amount shall be paid in full, at the following rates per annum:


 


(i)                                     Base
Rate Advances.  If such Revolving
Advance is a Base Rate Advance, a rate per annum equal to the Adjusted Base
Rate plus the Applicable Margin in respect of Base Rate Advances in
effect from time to time, payable in arrears on the earlier of (A) the
first Business Day of each month and (B) on the date such Base Rate
Advance shall be paid in full; and


 


(ii)                                  Eurodollar
Advances.  If such Revolving Advance
is a Eurodollar Advance, a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Margin in respect of Eurodollar
Advances in effect on each day of such Interest Period for Eurodollar Advances,
payable in arrears on the last day of such Interest Period, and, in the case of
Interest Periods of greater than one month, on each Business Day which occurs
at one month intervals from the first day of such Interest Period.


 


(b)                                 Bridge Loans.  The Borrowers shall, jointly and severally,
subject to Section 2.06 (f), pay interest on the unpaid principal
amount of each Bridge Loan made by each Bridge Lender to it from the date of
such Bridge Loan until such principal amount shall be paid in full, at the
following rates per annum:


 


(i)                                     16%
from the Closing Date through April 6, 2009;


 


(ii)                                  18%
from April 7, 2009 through July 6, 2009;


 


40

















 


(iii)                               20%
from July 7, 2009 through October 6, 2009; and


 


(iv)                              22%
thereafter;


 


provided that, in addition to the interest set
forth in clauses (b)(i), (b)(ii), (b)(iii), and (b)(iv) above, (A) in
the event that, upon payment in full, subject to Section 6.14, of
the Charter Bridge Loans, the cumulative interest accrued in respect of the
Charter Bridge Loans is less than $1,250,000.00 (the “Minimum Amount of
Charter Interest”), then the Borrowers shall, to the extent permitted by Section 6.14,
jointly and severally pay the Administrative Agent for the ratable account of
the Lender or Lenders holding Charter Bridge Loans an amount equal to the
difference between the Minimum Amount of Charter Interest and the amount of
interest actually accrued and paid under this Agreement on the Charter Bridge
Loans, and (B) in the event that, upon payment in full, subject to Section 7.06,
of the Other Bridge Loans, the cumulative interest accrued in respect of the
Other Bridge Loans is less than $1,620,000.00 (the “Minimum Amount of Other
Bridge Lenders’ Interest”), then the Borrowers shall, to the extent
permitted by Section 7.06, jointly and severally pay the
Administrative Agent for the ratable account of the Lender or Lenders holding
Other Bridge Loans an amount equal to the difference between the Minimum Amount
of Other Bridge Lenders’ Interest and the amount of interest actually accrued
and paid under this Agreement on the Other Bridge Loans.


 


(c)                                  Additional
Interest on Eurodollar Advances.  The
Borrowers shall, jointly and severally, pay to each Lender, so long as any such
Lender shall be required under regulations of the Federal Reserve Board to
maintain reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each Eurodollar Advance of such Lender, from the effective date of such
Revolving Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such Revolving Advance from (ii) the
rate obtained by dividing such Eurodollar Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest
Period, payable on each date on which interest is payable on such Revolving
Advance.  Such additional interest
payable to any Lender shall be determined by such Lender and notified to the
Borrowers through the Administrative Agent (such notice to include the
calculation of such additional interest, which calculation shall be conclusive
absent demonstrable error, and be accompanied by any evidence indicating the
need for such additional interest as the Borrowers may reasonably request)
within 90 days after such Lender becomes required to maintain such reserves.


 


(d)                                 Usury Recapture.  In the event the rate of interest chargeable
under this Agreement at any time (calculated after giving affect to all items
charged which constitute “interest” under applicable laws, including fees and
margin amounts, if applicable) is greater than the Maximum Rate, the unpaid
principal amount of the Revolving Advances or Bridge Loans, as applicable,
shall bear interest at the Maximum Rate until the total amount of interest paid
or accrued on the Revolving Advances and Bridge Loans equals the amount of
interest which would have been paid or accrued on the Revolving Advances and
Bridge Loans if the stated rates of interest set forth in this Agreement had at
all times been in effect.


 


In the event, upon payment in full of the
Revolving Advances and the Bridge Loans, the total amount of interest paid or
accrued under the terms of this Agreement and the


 


41

















 


Revolving Advances and the Bridge Loans is less than the total amount
of interest which would have been paid or accrued if the rates of interest set
forth in this Agreement had, at all times, been in effect, then the Borrowers
shall, to the extent permitted by applicable law, jointly and severally pay the
Administrative Agent for the account of the Lenders an amount equal to the
difference between (i) the lesser of (A) the amount of interest which
would have been charged on its Revolving Advances and Bridge Loans if the
Maximum Rate had, at all times, been in effect and (B) the amount of
interest which would have accrued on its Revolving Advances and Bridge Loans if
the rates of interest set forth in this Agreement had at all times been in
effect and (ii) the amount of interest actually paid under this Agreement
on its Revolving Advances and Bridge Loans.


 


In the event the Lenders ever receives,
collects or applies as interest any sum in excess of the Maximum Rate, such
excess amount shall, to the extent permitted by law, be applied to the
reduction of the principal balance of the Revolving Advances or Bridge Loans,
as applicable, and in accordance with Section 6.14 and Section 7.06,
and if no such principal is then outstanding, such excess or part thereof
remaining shall be paid to the Borrowers.


 


(e)                                  Default Interest.  When an Event of Default occurs and is
continuing, the interest payable pursuant to Section 2.06 and the
letter of credit fees payable pursuant to Section 2.03(c)(i), to
the extent permitted by law, will increase by 2.00% per annum.


 


(f)                                    Interest
Payments in Kind for Bridge Loans. 
Notwithstanding anything contained in this Section 2.06 or
elsewhere in the Loan Documents, until the Revolving Termination Date, any
interest payments in respect of Bridge Loans (including the Minimum Amount of
Charter Interest and the Minimum Amount of Other Bridge Lenders’ Interest)
shall be payments-in-kind rather than cash payments, except to the extent that
cash interest payments in respect of Bridge Loans (including the Minimum Amount
of Charter Interest and the Minimum Amount of Other Bridge Lenders’ Interest)
would be permitted under Section 6.14 or Section 7.06,
as applicable.


 


Section 2.07                                Prepayments.


 


(a)                                  Right to Prepay.  The Borrowers shall have no right to prepay
any principal amount of any Revolving Advance or Bridge Loan except as provided
in this Section 2.07.


 


(b)                                 Optional
Prepayments of Revolving Advances. 
The Borrowers may elect to prepay, in whole or in part, any of the
Revolving Advances owing by it to the Revolving Lenders, after giving prior
written notice of such election by (i) 11:00 a.m. (New York time) at
least three Business Days before such prepayment date in the case of Borrowings
which are comprised of Eurodollar Advances, and (ii) 11:00 a.m. (New
York time) on or before the Business Day of such prepayment, in the case of
Borrowings which are comprised of Base Rate Advances, in each case to the
Administrative Agent stating the proposed date and aggregate principal amount
of such prepayment.  If any such notice
is given, the Administrative Agent shall give prompt notice thereof to each
Revolving Lender and the Borrowers shall prepay Revolving Advances comprising
part of the same Borrowing in whole or ratably in part in an aggregate
principal amount equal to the amount specified in such notice, together with
accrued interest to the date of such prepayment on the principal amount prepaid
and amounts, if any, required to be paid pursuant to Section 2.08
as a result of such prepayment being made on such date; provided,
however, that each partial prepayment shall be in an aggregate principal amount


 


42

















 


not less than $2,000,000.00 and in integral multiples of $1,000,000.00
in excess thereof (or such lesser amount as may then be outstanding).


 


(c)                                  Mandatory
Prepayments of Revolving Advances.


 


(i)                                     Deficiency.


 


(A)                              If
the outstanding principal amount of the Revolving Advances plus the
Letter of Credit Exposure exceeds the lesser of (A) the aggregate
Revolving Commitments and (B) the Borrowing Base, or


 


(B)                                if
the outstanding principal amount of the Revolving Advances exceeds
$20,000,000.00,


 


then the Borrowers, jointly and severally,
agree to make a mandatory prepayment of the Revolving Advances, together with
accrued interest to the date of such prepayment on the principal amount prepaid
and amounts, if any, required to be paid pursuant to Section 2.08
as a result of such prepayment being made on such date, in the amount of such excess,
or if the Revolving Advances have been repaid in full, make deposits into the
LC Cash Collateral Account in the remaining amount of such excess to provide
cash collateral for the Letter of Credit Exposure, not later than 3:00 p.m.,
New York City time, if the Borrowers shall have received notice of such
deficiency prior to 12:00 noon, New York City time, on such date, or, if such
notice has not been received by the Borrowers prior to such time on such date,
then not later than 12:00 noon, New York City time, on the Business Day
immediately following the day that the Borrowers receive such notice.  Amounts to be applied pursuant to this clause
(i) shall be applied first to reduce outstanding Base Rate Advances,
second to the LC Cash Collateral Account in an amount equal to the Revolving
Lenders’ aggregate Letter of Credit Exposure, and third to reduce outstanding
Eurodollar Advances.


 


(ii)                                  Reduction
of Revolving Commitments.  On the
date of each reduction of the aggregate Revolving Commitments pursuant to Section 2.04,
the Borrowers, jointly and severally, agree to make a prepayment in respect of
the outstanding amount of the Revolving Advances to the extent, if any, that
the aggregate unpaid principal amount of all Revolving Advances plus the
Letter of Credit Exposure exceeds the lesser of (i) the Revolving
Commitments and (ii) the Borrowing Base.


 


(iii)                               Interest
on Prepayments.  Each prepayment
pursuant to this Section 2.07(c) shall be accompanied by
accrued interest on the amount prepaid to the date of such prepayment and
amounts, if any, required to be paid pursuant to Section 2.08 as a
result of such prepayment being made on such date.


 


(d)                                 [Reserved.]


 


(e)                                  Illegality.  If any Lender shall notify the Administrative
Agent and the Borrowers that any Change in Law makes it unlawful for such
Lender or its Applicable Lending Office to perform its obligations under this
Agreement or to make or maintain Eurodollar Advances then outstanding
hereunder, the Borrowers shall, no later than 11:00 a.m. (New York time) (i) (A) if


 


43

















 


not prohibited by any Legal Requirement to maintain such Eurodollar
Advances for the duration of the Interest Period, on the last day of the
Interest Period for each outstanding Eurodollar Advance or (B) if
prohibited by any Legal Requirement to maintain such Eurodollar Advances for
the duration of the Interest Period, on the second Business Day following its
receipt of such notice, prepay all Eurodollar Advances of all of the Lenders
then outstanding, together with accrued interest on the principal amount
prepaid to the date of such prepayment and amounts, if any, required to be paid
pursuant to Section 2.08 as a result of such prepayment being made
on such date, (ii) each Lender shall simultaneously make a Base Rate
Advance or, if not otherwise prohibited, make an Eurodollar Advance in an
amount equal to the aggregate principal amount of the affected Eurodollar
Advances, and (iii) the right of the Borrowers to select Eurodollar
Advances shall be suspended until such Lender shall notify Administrative Agent
that the circumstances causing such suspension no longer exist.  Each Lender agrees to use commercially
reasonable efforts (consistent with its internal policies and subject to legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such designation would avoid the effect of this paragraph and
would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.


 


(f)                                    Ratable Payments;
Effect of Notice.  Each payment of
any Revolving Advance or Bridge Loan pursuant to this Section 2.07
or any other provision of this Agreement shall be made in a manner such that
all Revolving Advances or Bridge Loans comprising part of the same Borrowing
are paid in whole or ratably in part. 
All notices given pursuant to this Section 2.07 shall be
irrevocable and binding upon the Borrowers.


 


Section 2.08                                Funding Losses.  If (a) any payment of principal of any
Eurodollar Advance is made other than on the last day of the Interest Period
for such Revolving Advance as a result of any payment pursuant to Section 2.07
or the acceleration of the maturity of the Revolving Advances pursuant to Article VII
or (b) if any Borrower fails to make a principal or interest payment with
respect to any Eurodollar Advance on the date such payment is due and payable,
such Borrower shall within three Business Days of any written demand sent by
any Revolving Lender to such Borrower through the Administrative Agent, pay to
Administrative Agent for the account of such Revolving Lender any amounts
(without duplication of any other amounts payable in respect of breakage costs)
required to compensate such Revolving Lender for any additional losses,
out-of-pocket costs or expenses which it actually incurs as a result of such
payment or nonpayment, including, without limitation, any loss, cost or expense
actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Revolving Lender to fund or maintain such Revolving
Advance.  A certificate of any Revolving
Lender setting forth any amount or amounts that such Revolving Lender is
entitled to receive pursuant to this Section shall be delivered to either
Borrower and shall be conclusive absent manifest error.


 


Section 2.09                                Increased Costs.


 


(a)                                  Increased Costs
Generally.  If any Change in Law
shall:


 


(i)                                     impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except
any


 


44

















 


reserve requirement reflected in the
Eurodollar Rate Reserve Percentage) or the Issuing Bank;


 


(ii)                                  subject
any Lender or the Issuing Bank to any tax of any kind whatsoever with respect
to this Agreement, any Letter of Credit, any participation in a Letter of
Credit or any Eurodollar Advance made by it, or change the basis of taxation of
payments to such Lender or the Issuing Bank in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 2.11 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender or the Issuing Bank); or


 


(iii)                               impose
on any Lender, the Issuing Bank, or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Advances made
by such Lender or the Issuing Bank, 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 Eurodollar
Advance (or of maintaining its obligation to make any such Revolving Advance),
or to increase the cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation
to participate in or to issue any Letter of Credit), or to reduce the amount of
any sum received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or any other amount) then, upon request of such
Lender or the Issuing Bank, subject to Section 6.14, the Borrowers
will, jointly and severally, pay to such Lender or the Issuing Bank, as the
case may be (provided that such Lender has complied with its obligations under Section 2.15),
such additional amount or amounts as will compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.


 


(b)                                 Capital
Requirements. If any Lender or the Issuing Bank determines that any Change
in Law affecting such Lender or the Issuing Bank or any lending office of such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding
company, if any, regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender’s or the Issuing Bank’s capital or
on the capital of such Lender’s or the Issuing Bank’s holding company, if any,
as a consequence of this Agreement, the Commitments of such Lender or the
Revolving Advances or Bridge Loans made by, or participations in Letters of
Credit held by, such Lender or the Letters of Credit issued by the Issuing Bank
to a level below that which such Lender or the Issuing Bank or such Lender’s or
the Issuing Bank’s holding company could have achieved but for such Change in
Law (taking into consideration such Lender’s or the Issuing Bank’s policies and
the policies of such Lender’s or the Issuing Bank’s holding company with
respect to capital adequacy), then from time to time the Borrowers will,
jointly and severally, subject to Section 6.14, pay to such Lender
or the Issuing Bank, as the case may be (provided that such Lender has complied
with its obligations under Section 2.15), such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender’s or
the Issuing Bank’s holding company for any such reduction suffered.


 


(c)                                  Certificates for
Reimbursement. A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing Bank
or any of their respective holding companies, as the case may be, as specified
in paragraph (a) or (b) of this Section and setting forth a
reasonably detailed description of the basis for calculating


 


45

















 


such amount delivered to the Borrowers shall be conclusive absent
manifest error. The Borrowers shall, jointly and severally, pay such Lender or
the Issuing Bank, as the case may be, the amount shown as due on any such certificate
within 30 days after receipt thereof, subject to Section 6.14.


 


(d)                                 Delay in Requests.  Failure or delay on the part of any Lender or
the Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such
compensation, provided that the Borrowers shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs incurred or reductions suffered more than six months prior to
the date that such Lender or the Issuing Bank, as the case may be, notifies the
Borrowers of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


Section 2.10                                Payments and
Computations.


 


(a)                                  Payment Procedures.  The Borrowers shall make each payment under
this Agreement not later than 12:00 p.m. (New York time) on the day when
due to the Administrative Agent at the Administrative Agent’s Applicable
Lending Office in immediately available funds. 
Each Revolving Advance shall be repaid and each payment of interest
thereon shall be paid in Dollars.  All
payments shall be made without setoff, deduction, or counterclaim. The
Administrative Agent will promptly thereafter, and in any event prior to the
close of business on the day any timely payment is made, cause to be
distributed like funds relating to the payment of principal, interest or fees
ratably (other than amounts payable solely to the Administrative Agent, or a
specific Lender pursuant to Section 2.03(b), 2.03(c), 2.08,
2.09 or 2.11, but after taking into account payments effected
pursuant to Section 10.04) in accordance with each Lender’s
Revolving Pro Rata Share or Bridge Pro Rata Share, as applicable, to the
applicable Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement.


 


(b)                                 Computations.  All computations of interest based on the
Prime Rate shall be made by the Administrative Agent on the basis of a year of
365 or 366 days, as the case may be, and all computations of interest based on
the Federal Funds Effective Rate or the Eurodollar Rate and of fees shall be
made by the Administrative Agent, on the basis of a year of 360 days, in each
case for the actual number of days (including the first day, but excluding the
last day) occurring in the period for which such interest or fees are
payable.  Each determination by the
Administrative Agent of an interest rate shall be conclusive and binding for
all purposes, absent manifest error.


 


(c)                                  Non-Business Day
Payments.  Whenever any payment shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or fees, as the
case may be.


 


46

















 


(d)                                 Agent Reliance.  Unless the Administrative Agent shall have
received written notice from a Borrower prior to the date on which any payment
is due to the Revolving Lenders or the Bridge Lenders that such Borrower will
not make such payment in full, the Administrative Agent may assume that such
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each applicable Lender on such date an amount equal to the
amount then due to such Lender.  If and
to the extent such Borrower shall not have so made such payment in full to
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the greater of the Federal Funds Effective Rate for such day and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.


 


Section 2.11                                Taxes.


 


(a)                                  Payments
Free of Taxes. Any and all payments by or on account of any obligation of
any Loan Party hereunder or under any other Loan Document shall be made free
and clear of and without reduction or withholding for any Indemnified Taxes or
Other Taxes, provided that if any Loan Party shall be required by any
Legal Requirement to deduct any Indemnified Taxes (including any 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) the Administrative
Agent, the applicable Lender or the Issuing Bank, as the case may be, receives
an amount equal to the sum it would have received had no such deductions been
made; provided however, that the Borrower shall not be required to
increase any such amounts payable to any Administrative Agent, Lender, or
Issuing Bank with respect to Indemnified Taxes or Other Taxes that (1) are
attributable to recipient’s failure to comply with the requirements of Section 2.11(e);
(2) are imposed solely as a result of the payment to the Administrative
Agent, Lender, or Issuing Bank hereunder and a connection between such
recipient and the taxing jurisdiction imposing such Indemnified Tax or Other
Tax, which connection is unrelated to the transactions set forth in any Loan
Document; or (3) that are U.S. Withholding Taxes imposed on amounts
payable to or for the account of an Administrative Agent, Lender, or Issuing
Bank at the time such recipient becomes a party to this Agreement, except to
the extent such U.S. Withholding Taxes are imposed or increased as a result of
a Change in Law, (ii) the Borrowers shall make such deductions and (iii) the
Borrowers shall, jointly and severally, timely pay the full amount deducted to
the relevant Governmental Authority in accordance with Legal Requirements.


 


(b)                                 Payment of Other
Taxes by the Borrowers. Without limiting the provisions of paragraph (a) above,
the Borrowers shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)                                  Indemnification by
the Borrowers. The Borrowers shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after 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) paid by the Administrative Agent, such Lender, or the Issuing
Bank, as the case may be, and any


 


47

















 


penalties, interest and reasonable expenses arising therefrom or with
respect thereto, 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 and
setting forth a reasonably detailed description of the basis for calculating
such amount delivered to the Borrowers by a Lender or the Issuing Bank (with a
copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent
manifest error.


 


(d)                                 Evidence of
Payments. As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrowers to a Governmental Authority, the Borrowers shall deliver
to the Administrative 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 Administrative Agent.


 


(e)                                  Status of Lenders.
Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which each Borrower is
resident for tax purposes, or any treaty to which such jurisdiction is a party,
with respect to payments hereunder or under any other Loan Document shall
deliver to the Borrowers (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by the Borrowers
or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrowers or the
Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate of withholding.  In addition, any Lender or the Issuing Bank,
if requested by the Borrowers or the Administrative Agent, shall deliver such
other documentation prescribed by applicable law or reasonably requested by the
Borrowers or the Administrative Agent as will enable the Borrowers or the
Administrative Agent to determine whether or not such Lender or the Issuing
Bank is subject to backup withholding or information reporting requirements.


 


Without limiting the generality of the
foregoing, in the event that a Borrower is resident for tax purposes in the
United States of America, any Foreign Lender shall deliver to the Borrowers and
the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the request
of the Borrowers or the Administrative Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:


 


(i)                                     two
duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States of
America is a party,


 


(ii)                                  two
duly completed copies of Internal Revenue Service Form W-8EC or Internal
Revenue Service Form W-8IMY (or successor form),


 


(iii)                               in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the Parent within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section


 


48

















 


881(c)(3)(C) of the Code and (y) two
duly completed copies of Internal Revenue Service Form W-8BEN, or


 


(iv)                              any
other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable law to
permit the Borrowers to determine the withholding or deduction required to be
made.


 


In addition, each Foreign Lender shall deliver such forms discussed
above promptly upon the obsolescence or invalidity of any form previously
delivered by such Foreign Lender.  Each
Foreign Lender shall promptly notify the Borrower in writing at any time it
determines that it is no longer in a position to provide any previously
delivered certificate with relation to portfolio interest.  Each Lender who is not a Foreign Lender shall
furnish an accurate and complete Internal Revenue Form W-9 (or successor
form) establishing that such Lender is not subject to U.S. backup withholding,
and to the extent it may lawfully do so at such times, provide a new Form W-9
(or successor form) upon the expiration or obsolescence of any previously
delivered form.


 


(f)                                    Treatment of
Certain Refunds. If the Administrative Agent, a Lender, or the Issuing Bank
determines, in good faith, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrowers or with respect to
which the Borrowers have paid additional amounts pursuant to this Section, it
shall pay to the Borrowers an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrowers
under this Section with respect to the Taxes or Other Taxes giving rise to
such refund), net of all reasonable out-of-pocket expenses of the
Administrative Agent, such Lender, or the Issuing Bank, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrowers,
upon the request of the Administrative Agent, such Lender, or the Issuing Bank,
agree to repay the amount paid over to the Borrowers (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority that accrue
during or in respect of the period of time that the Borrowers hold such amount
and that would have been payable by the Borrowers pursuant to Section 2.11(a) or
(b) had the Borrowers not paid the amount refunded to the Borrowers
pursuant to this Section 2.11(f)) to the Administrative Agent, such
Lender, or the Issuing Bank in the event the Administrative Agent, such Lender,
or the Issuing Bank is required to repay such refund to such Governmental
Authority.  This paragraph shall not be
construed to require the Administrative Agent, any Lender, or the Issuing Bank
to make available its tax returns (or any other information relating to its
taxes that it deems confidential) to the Borrowers or any other Person.


 


Section 2.12                                Sharing of Payments,
Etc.


 


(a)                                  If any Revolving
Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its
Revolving Advances or other obligations hereunder resulting in such Revolving
Lender’s receiving payment of a proportion of the aggregate amount of its
Revolving Advances and accrued interest thereon or other such obligations
greater than its Revolving Pro Rata Share, then the Revolving Lender receiving
such greater proportion shall (i) notify the Administrative Agent of such
fact, and (ii) purchase (for cash at face value) participations in the
Revolving Advances and such


 


49

















 


other obligations of the other Revolving Lenders, or make such other adjustments
as shall be equitable, so that the benefit of all such payments shall be shared
by the Revolving Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Advances and
other amounts owing them, provided that: (A) 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 (B) the
provisions of this paragraph shall not be construed to apply to (1) any
payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or (2) any payment obtained by a Revolving Lender
as consideration for the assignment of or sale of a participation in any of its
Revolving Advances or participations in Letters of Credit to any assignee or
participant, other than to the Borrowers or any Subsidiary thereof (as to which
the provisions of this paragraph shall apply).


 


(b)                                 If, prior to the
Revolving Termination Date, any Bridge Lender shall, by exercising any right of
setoff or counterclaim or, except for payments permitted by Section 6.14,
otherwise, obtain payment in respect of any principal of or interest on any of
its Bridge Loans or other obligations hereunder, such Bridge Lender shall
deliver such payment in full to the Administrative Agent for distribution to
the Revolving Lenders in accordance with this Agreement.


 


(c)                                  If, after the
Revolving Termination Date, any Bridge Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Bridge Loans or other obligations hereunder
resulting in such Bridge Lender’s receiving payment of a proportion of the
aggregate amount of its Bridge Loans and accrued interest thereon or other such
obligations greater than its Bridge Pro Rata Share, then the Bridge Lender
receiving such greater proportion shall (i) notify the Administrative
Agent of such fact, and (ii) purchase (for cash at face value)
participations in the Bridge Loans and such other obligations of the other
Bridge Lenders, or make such other adjustments as shall be equitable, so that
the benefit of all such payments shall be shared by the Bridge Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Bridge Loans and other amounts owing them, provided
that: (A) 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 (B) the provisions of this paragraph shall not be
construed to apply to (1) any payment made by the Borrowers pursuant to
and in accordance with the express terms of this Agreement or (2) any
payment obtained by a Bridge Lender as consideration for the assignment of or
sale of a participation in any of its Bridge Loans to any assignee or
participant, other than to the Borrowers or any Subsidiary thereof (as to which
the provisions of this paragraph shall apply).


 


(d)                                 Each Loan Party
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 each Loan Party rights of setoff
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of each Loan Party in the amount of such participation.


 


Section 2.13                                Applicable Lending
Offices.  Each Lender may book its
Revolving Advances or Bridge Loans, as applicable, at any Applicable Lending
Office selected by such


 


50

















 


Lender and may
change its Applicable Lending Office from time to time.  All terms of this Agreement shall apply to
any such Applicable Lending Office and the Revolving Advances or Bridge Loans,
as applicable, shall be deemed held by each Lender for the benefit of such
Applicable Lending Office.  Each Lender
may, by written notice to the Administrative Agent and the Borrowers designate
replacement or additional Applicable Lending Offices through which Revolving
Advances or Bridge Loans, as applicable, will be made by it and for whose
account repayments are to be made.


 


Section 2.14                                Letters of Credit.


 


(a)                                  Issuance.  Subject to the terms of this Agreement, from
time-to-time from the Closing Date until 30 days before the Maturity Date, at
the request of a Borrower, the Issuing Bank shall, on the terms and conditions
hereinafter set forth, issue, increase, or extend the expiration date of
Letters of Credit for the account of such Borrower or for the account of any
Subsidiary of a Borrower (in which case such Borrower and such Subsidiary shall
be co-applicants with respect to such Letter of Credit) on any Business
Day.  All Letters of Credit outstanding
under the Existing Credit Agreement will deemed to be issued under this
Agreement on the Closing Date.  No Letter
of Credit will be issued, increased, or extended:


 


(i)                                     if
such issuance, increase, or extension would cause the Letter of Credit Exposure
to exceed the lesser of (A) the aggregate Revolving Commitments minus
the sum of the aggregate outstanding principal amount of all Revolving Advances
and (B) the Borrowing Base minus the sum of the aggregate
outstanding principal amount of all Revolving Advances;


 


(ii)                                  unless
such Letter of Credit has an expiration date not later than the earlier of
(A) one year after the date of issuance thereof and (B) 180 days
after the Maturity Date; provided that, any such Letter of Credit with a
one-year tenor may expressly provide that it is renewable at the option of the
Issuing Bank for additional one-year periods (which shall in no event extend
beyond the 180th day after the Maturity Date) if such Letter of
Credit is cancelable upon at least 30 days’ notice given by the Issuing Bank to
the beneficiary of such Letter of Credit;


 


(iii)                               unless
such Letter of Credit is in form and substance acceptable to the Issuing Bank
in its sole discretion;


 


(iv)                              unless
such Borrower has delivered to the Issuing Bank a completed and executed Letter
of Credit Application; and


 


(v)                                 unless
such Letter of Credit is governed by the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, or any successor to such publication or to the
International Standby Practices (1998), International Chamber of Commerce
Publication No. 590, or any successor to such publication.


 


If the terms of any letter of credit application referred to in the
foregoing clause (iv) conflicts with the terms of this Agreement, the
terms of this Agreement shall control.


 


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(b)                                 Participations.  Upon the date of the issuance or increase of
a Letter of Credit occurring on or after the Closing Date, the Issuing Bank
shall be deemed to have sold to each other Revolving Lender and each other
Revolving Lender shall have been deemed to have purchased from the Issuing Bank
a participation in the related Letter of Credit Obligations equal to such
Revolving Lender’s Revolving Pro Rata Share at such date.  The Issuing Bank shall promptly give notice
of the issuance or increase of each Letter of Credit to the Administrative
Agent and the Revolving Lenders.  In
consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Revolving Lender’s Revolving Pro Rata
Share of each payment or disbursement made by an Issuing Bank pursuant to a
Letter of Credit and not reimbursed by a Borrower (or, if applicable, another
party pursuant to its obligations under any other Loan Document) forthwith on
the date due as provided in Section 2.14(c).  Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit.  The Issuing Bank shall as promptly as
possible give telephonic notification, confirmed by fax, to the Administrative
Agent and the applicable Borrower of such demand for payment and whether the
Issuing Bank has made or will make disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve such
Borrower of its obligation to reimburse the Issuing Bank and the Revolving
Lenders with respect to any such payment or disbursement.  The Administrative Agent shall promptly give
each Revolving Lender notice thereof.


 


(c)                                  Reimbursement.  If the Issuing Bank shall make any disbursement
in respect of a Letter of Credit, the Borrowers jointly and severally agree to
reimburse such disbursement by paying to the Administrative Agent an amount
equal to such disbursement not later than 12:00 noon, New York City time, on
the date that such disbursement is made, if the Borrowers shall have received
notice of such disbursement prior to 10:00 a.m., New York City time, on
such date, or, if such notice has not been received by the Borrowers prior to
such time on such date, then not later than 12:00 noon, New York City time, on (i) the
Business Day that the Borrowers receive such notice, if such notice is received
prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrowers receive such
notice, if such notice is not received prior to such time on the day of
receipt; provided that the Borrowers shall conclusively be deemed,
subject to the conditions to borrowing set forth herein (including the
conditions stated in Section 3.02), to have requested that such
payment be financed with an Base Rate Advance in an equivalent amount and, to
the extent so financed, the Borrowers’ obligation to make such payment shall be
discharged and replaced by the resulting Base Rate Advance.  If the Borrowers fail to make such payment
when due, the Administrative Agent shall notify each Revolving Lender of the
applicable disbursement, the payment then due from the Borrowers in respect
thereof and such Revolving Lender’s Revolving Pro Rata Share thereof.  Promptly following receipt of such notice,
each Revolving Lender shall pay to the Administrative Agent its Revolving Pro
Rata Share of the payment then due from the Borrowers, in the same manner as
provided in Section 2.02 with respect to Revolving Advances made by
such Revolving Lender (and Section 2.02 shall apply, mutatis
mutandis, to the payment


 


52

















 


obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders.  If such reimbursement
is not made by any Revolving Lender to the Issuing Bank on the same day on
which the Issuing Bank shall have made payment on any such draw, such Revolving
Lender shall pay interest thereon to the Issuing Bank at a rate per annum equal
to the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


(d)                                 Obligations Unconditional.  The obligations of the Borrowers under this
Agreement in respect of each Letter of Credit shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, notwithstanding the following
circumstances:


 


(i)                                     any
lack of validity or enforceability of any Letter of Credit Documents, any Loan
Document, or any term or provision therein;


 


(ii)                                  any
amendment or waiver of or any consent to departure from all or any of the provisions
of any Letter of Credit Document or any Loan Document;


 


(iii)                               the
existence of any claim, set-off, defense or other right which either Borrower,
any other party guaranteeing, or otherwise obligated with, such Borrower, any
subsidiary or other Affiliate thereof or any other Person may have at any time
against any beneficiary or transferee of such Letter of Credit (or any Persons
for whom any such beneficiary or any such transferee may be acting), the
Issuing Bank, any Lender or any other Person, whether in connection with this
Agreement, any other Loan Document, the transactions contemplated in this
Agreement or in any Letter of Credit Documents or any unrelated transaction;


 


(iv)                              any
draft or other document presented under a 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;


 


(v)                                 payment
by the Issuing Bank under such Letter of Credit against presentation of a draft
or certificate which does not strictly comply with the terms of such Letter of
Credit; or


 


(vi)                              any
other act or omission to act or delay of any kind of the Issuing Bank, the
Administrative Agent, the Lenders or any other Person, or any other event,
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of either Borrower’s obligations hereunder.


 


Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of each
Borrower hereunder to reimburse each payment or disbursement made by an Issuing
Bank pursuant to a Letter of Credit will not be excused by the gross negligence
or willful misconduct of the Issuing Bank; provided that the foregoing
shall not be construed to excuse the Issuing Bank from liability to the
Borrowers to the extent of any damages that are caused by the Issuing Bank’s
failure to exercise care when determining whether


 


53

















 


drafts and other documents presented under a Letter of Credit comply
with the terms thereof.  The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised
care in each such determination.


 


(e)                                  Prepayments of
Letters of Credit.  In the event that
any Letters of Credit shall be outstanding or shall be drawn and not reimbursed
on the fifth Business Day prior to the Maturity Date, the Borrowers shall on or
before such date either (i) jointly and severally, pay to the Administrative
Agent an amount equal to 105% of the Letter of Credit Exposure allocable to
such Letters of Credit to be held in the LC Cash Collateral Account and applied
in accordance with paragraph (g) below or (ii) provide the Issuing
Bank with a substitute letter of credit naming the Issuing Bank as beneficiary,
in form and substance and from a financial institution reasonably satisfactory
to the Issuing Bank, with a face amount equal to 105% of the aggregate Letter
of Credit Exposure allocable to such outstanding Letters of Credit.


 


(f)                                    Liability of
Issuing Bank.  Each Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit.  Neither the Issuing Bank nor any of its
officers or directors shall be liable or responsible for:


 


(i)                                     the
use which may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith;


 


(ii)                                  the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged;


 


(iii)                               payment
by the Issuing Bank against presentation of documents which do not comply with
the terms of a Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the relevant Letter of Credit; or


 


(iv)                              any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit (including the Issuing Bank’s own negligence),


 


except that in each case, the Borrowers shall
have a claim against the Issuing Bank, and the Issuing Bank shall be liable to,
and shall promptly pay to, the Borrowers, to the extent of any direct, as
opposed to consequential (claims in respect of which are hereby waived by the
Borrowers to the extent permitted by applicable law), damages suffered by the
Borrowers which the Borrowers prove were caused by the Issuing Bank’s willful
misconduct or gross negligence in determining whether documents presented under
a Letter of Credit strictly comply with the terms of such Letter of Credit  it is understood that the applicable Issuing
Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit (i) the Issuing Bank’s exclusive reliance on the documents
presented to it under such Letter of Credit as to any and all matters set forth
therein, including reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary thereunder
equals the amount of such draft and whether or not any document presented
pursuant to such Letter of Credit proves to be insufficient in any respect, if
such


 


54

















 


document on its face appears to be in order, and whether or not any
other statement or any other document presented pursuant to such Letter of
Credit proves to be forged or invalid or any statement therein proves to be
inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of
Credit with the terms thereof shall, in each case, be deemed not to constitute
willful misconduct or gross negligence of the Issuing Bank.


 


(g)                                 LC Cash Collateral
Account.


 


(i)                                     If
the Borrowers are required to deposit funds in the LC Cash Collateral Account
pursuant to Section 2.07(c), 2.14(e), 3.01(n), 7.02
or 7.03, then the Borrowers and the Administrative Agent shall establish
the LC Cash Collateral Account and the Borrowers shall execute any documents
and agreements, including the Administrative Agent’s standard form assignment
of deposit accounts, that the Administrative Agent requests in connection
therewith to establish the LC Cash Collateral Account and grant the
Administrative Agent an Acceptable Security Interest in such account and the
funds therein.  The Borrowers hereby
pledge to the Administrative Agent and grant the Administrative Agent a
security interest in the LC Cash Collateral Account, whenever established, all
funds held in the LC Cash Collateral Account from time to time and all proceeds
thereof as security for the payment of the Obligations.


 


(ii)                                  Funds
held in the LC Cash Collateral Account shall be held as cash collateral for
obligations with respect to Letters of Credit and promptly applied by the
Administrative Agent at the request of the Issuing Bank to any reimbursement or
other obligations under Letters of Credit that exist or occur.  To the extent that any surplus funds are held
in the LC Cash Collateral Account above 105% of the Letter of Credit Exposure
during the existence of an Event of Default the Administrative Agent may (A) hold
such surplus funds in the LC Cash Collateral Account as cash collateral for the
Obligations or (B) apply such surplus funds to any Obligations in any
manner directed by the Majority Lenders. 
If no Default or Event of Default exists, the Administrative Agent shall
release to the Borrowers at either Borrower’s written request any funds held in
the LC Cash Collateral Account above the amounts required by Section 2.14(e) or
otherwise.


 


(iii)                               Funds
held in the LC Cash Collateral Account shall be invested in Cash Equivalents
maintained with, and under the sole dominion and control of, the Administrative
Agent or in another investment if mutually agreed upon by the Borrowers and the
Administrative Agent, but the Administrative Agent shall have no other
obligation to make any other investment of the funds therein.  The Administrative Agent shall exercise
reasonable care in the custody and preservation of any funds held in the LC
Cash Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the
Administrative Agent accords its own property, it being understood that the
Administrative Agent shall not have any responsibility for taking any necessary
steps to preserve rights against any parties with respect to any such funds.


 


(h)                                 Resignation or
Removal of the Issuing Bank.  The
Issuing Bank may resign at any time by giving written notice to the
Administrative Agent, the Lenders and the Borrowers, such resignation to be
effective upon the appointment of a successor Issuing Bank, or, if no successor


 


55

















 


Issuing Bank has been appointed, 60 days after the retiring Issuing
Bank gives notice of its intention to resign or receives notice of its
removal.  Upon any such resignation or
removal, the Majority Lenders shall have the right to appoint, and provided
that no Default or Event of Default exists, with the consent of the Borrowers
(which consent shall not be unreasonably withheld or delayed), a successor
Issuing Bank.  If no successor Issuing
Bank shall have been so appointed by the Majority Lenders within such time
period, then the Issuing Bank may appoint, and provided that no Default or
Event of Default exists, with the consent of the Borrowers (which consent shall
not be unreasonably withheld or delayed), a successor Issuing Bank.  Subject to the next succeeding sentence, upon
the acceptance of any appointment as the Issuing Bank hereunder by a Revolving
Lender that shall agree to serve as successor Issuing Bank, such successor
shall succeed to and become vested with all the interests, rights and
obligations of the retiring Issuing Bank and the retiring Issuing Bank shall be
discharged from its obligations to issue additional Letters of Credit
hereunder.  At the time such resignation
shall become effective, the Borrowers shall pay all accrued and unpaid fees
pursuant to Sections 2.03(c)(ii) and (iii).  The acceptance of any appointment as the
Issuing Bank hereunder by a successor Revolving Lender shall be evidenced by an
agreement entered into by such successor, in a form satisfactory to the
retiring Issuing Bank and the Administrative Agent, and, from and after the
effective date of such agreement, (i) such successor Revolving Lender
shall have all the rights and obligations of the previous Issuing Bank under
this Agreement and the other Loan Documents and (ii) references herein and
in the other Loan Documents to the term “Issuing Bank” shall be deemed to refer
to such successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require.  After the resignation or removal of the
Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of the Issuing Bank
under this Agreement and the other Loan Documents with respect to Letters of
Credit issued by it prior to such resignation, but shall not be required to
issue additional Letters of Credit.


 


Section 2.15                                Mitigation
Obligations; Replacement of Lenders.


 


(a)                                  If any Lender
requests compensation under Section 2.09, or if the Borrowers are
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.11,
then such Lender shall use reasonable efforts to promptly 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 2.09 or Section 2.11,
as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense (unless the Borrowers pay, as a condition
precedent to such Lender’s agreement to take such action, for any such cost or
expense) and would not otherwise be disadvantageous to such Lender.  The Borrowers hereby, jointly and severally
agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.


 


(b)                                 If any Lender requests
compensation under Section 2.09 or if the Borrowers are 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 Borrowers may, at
their sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to promptly assign and delegate,


 


56

















 


without recourse, all its interests, rights and obligations under this
Agreement to an assignee  acceptable to the Borrowers in their reasonable
discretion (it being understood that it shall not be unreasonable for the
Borrowers to withhold their consent to an assignment to a Foreign Lender that
would subject the Borrowers to withholding in respect of this Agreement at the
time of such assignment) that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) the
Borrowers shall have received the prior written consent of the Administrative
Agent and, if such assigning Lender is a Revolving Lender, the Issuing Bank,
which consent shall not unreasonably be withheld or delayed, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Revolving Advances or Bridge Loans, as applicable, and
participations in Reimbursement Obligations, 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
Borrowers (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.09
or payments required to be made pursuant to Section 2.11, 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 Borrowers to require
such assignment and delegation cease to apply.


 


ARTICLE III


 


CONDITIONS OF LENDING


 


Section 3.01                                Initial Conditions
Precedent.  The effectiveness of the
amendment and restatement of the Existing Credit Agreement is subject to the
following conditions precedent:


 


(a)                                  Documentation.  On or before the day on which the initial
Revolving Borrowing is made, or the initial Letter of Credit is issued, or the
Bridge Loans are made, the Administrative Agent and the Lenders shall have
received the following, each dated on or before such day, duly executed by all
the parties thereto (or in the case of this Agreement, duly executed by the
Borrowers, the Guarantors, the Administrative Agent, the Majority Lenders, and
the Bridge Lenders), each in form and substance satisfactory to the
Administrative Agent, the Majority Lenders, and the Bridge Lenders:


 


(i)                                     this
Agreement and all attached Exhibits and Schedules;


 


(ii)                                  any
Note requested by a Lender pursuant to Section 2.02(g) payable
to the order of such requesting Lender in the amount of its Revolving
Commitment or Bridge Loans, as applicable;


 


(iii)                               a
certificate dated as of the Closing Date from a Responsible Officer of the
Borrowers stating that (A) all representations and warranties of such
Person set forth in this Agreement and in the other Loan Documents to which it
is a party are true and correct in all material respects; (B) no Default
has occurred and is continuing; (C) the conditions in this Section 3.01
have been met; and (D) no default or event of default has occurred and is
continuing under the Indenture governing the Senior Notes or under any Sowood
Document;


 


57

















 


(iv)                              to
the extent any have been entered into on or after September 30, 2008,
copies of amendments to the certificate or articles of incorporation or other
equivalent organizational documents of each Loan Party (including without
limitation amendments to the certificate of incorporation of the Parent to
reflect the terms of the Series B Convertible Preferred Stock and, as a
consequence of the designation thereof, amendments necessary to conform the Series A
Convertible Preferred Stock), certified as of a recent date by the Secretary of
State of the state of its organization;


 


(v)                                 a
certificate of the Secretary or Assistant Secretary of each Loan Party dated
the Closing Date and certifying (A) that attached thereto is a true and
complete copy of any amendments to the organizational documents of such Loan
Party as in effect on the Closing Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such Loan Party is a party and, in
the case of the Borrower, the borrowings hereunder, the designation of the Series B
Convertible Preferred Stock, and the amendment of the Certificate of
Designation of the Series A Convertible Preferred Stock, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the certificate or articles of incorporation or other
organizational documents of such Loan Party have not been amended since the
date of the last amendment thereto shown on the certified copy thereof
furnished pursuant to clause (iv) above, and (D) as to the incumbency
and specimen signature of each officer executing any Loan Document, Notices of
Borrowing or any other document delivered in connection herewith on behalf of
such Loan Party;


 


(vi)                              a
certificate of another officer of each Loan Party as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (v) above;


 


(vii)                           certificates
from the appropriate Governmental Authority certifying as to the good standing,
existence and authority of each of the Loan Parties in all jurisdictions where
required by the Administrative Agent;


 


(viii)                        a
favorable opinion dated as of the Closing Date of Paul, Hastings, Janofsky &
Walker LLP, counsel to the Loan Parties substantially similar to the opinion it
delivered pursuant to the Existing Credit Agreement;


 


(ix)                                a
certificate from a Financial Officer of each Borrower dated as of the Closing
Date addressed to the Administrative Agent and each of the Lenders regarding
the matters set forth in Section 4.20;


 


(x)                                   a
copy of, or a certificate as to coverage under, the insurance policies required
by Section 5.04 and the applicable provisions of the Security
Documents, each of which shall be endorsed or otherwise amended to include a customary
lender’s loss payable endorsement and to name the Administrative Agent as an
additional insured;


 


(xi)                                a
Borrowing Base Report dated as of October 31, 2008;


 


58

















 


(xii)                             a
draft Compliance Certificate dated as of the Closing Date duly completed and
executed by a Financial Officer of each Borrower with respect to the draft September 30,
2008 financials;


 


(xiii)                          a copy
of the risk management policy of the Borrowers (the “Risk Management Policy”)
in form and substance satisfactory to the Majority Lenders accompanied by a
certificate signed by a Responsible Officer certifying compliance with such
Risk Management Policy;


 


(xiv)                         copies of
any amendments to Material Contracts reflected on Schedule 1.01(e) to the
Existing Credit Agreement in effect on or after September 30, 2008 and
each of the Material Contracts in effect on or after September 30, 2008
that are not reflected on Schedule 1.01(e) to the Existing Credit
Agreement, each certified as of the Closing Date by a Responsible Officer of
the Borrowers (A) as being true and correct copies of such documents as of
the Closing Date, (B) as being in full force and effect and (C) that
no material term or conditions thereof shall have been amended, modified or
waived after the execution thereof without the prior written consent of the
Administrative Agent;


 


(xv)                            Amendment
No. 2 to the Intercreditor Agreement, which shall change all contracts for
the sale of electricity, natural gas, or related products on a variable rate
basis between a Loan Party and any of its customers from Secured Party Primary
Collateral to Credit Agreement Primary Collateral; and


 


(xvi)                         such
other documents, governmental certificates and agreements as the Administrative
Agent or any Lender  may reasonably
request.


 


(b)                                 Payment of Fees.  On the Closing Date, the Borrowers shall have
paid the fees required to be paid to the Administrative Agent, the Arranger,
and the Lenders on the Closing Date, including, without limitation, (i) the
fees set forth in the Fee Letters, (ii) the upfront fees payable to the
Bridge Lenders on the Closing Date, in an aggregate amount not to exceed
$208,000.00, (iii) the fees, costs, and expenses of Hughes, Hubbard &
Reed LLP, Bracewell & Giuliani LLP, and Proskauer Rose LLP invoiced as
of the Closing Date, and (iv) and all other costs and expenses which have
been invoiced and are payable pursuant to Section 10.04.


 


(c)                                  Due Diligence;
Corporate Structure.  The
Administrative Agent and the Revolving Lenders shall have completed
satisfactory due diligence review of the assets, liabilities, business,
operations and condition (financial or otherwise) of the Parent and its
Subsidiaries, and all legal, financial, accounting, governmental, tax and
regulatory matters, and fiduciary aspects of the proposed financing and the
terms and conditions of all material obligations of the Loan Parties.  The documentation reflecting the ownership,
capital, corporate, tax, organizational and legal structure of the Loan Parties
shall be acceptable to the Administrative Agent.


 


(d)                                 Security Documents.  The Administrative Agent shall have received
all appropriate evidence required by the Administrative Agent in its sole
discretion necessary to determine that arrangements have been made for the
Administrative Agent for the benefit of Secured Parties to have an Acceptable
Security Interest in the Collateral, including, without


 


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limitation, (i) the delivery to the Administrative Agent of such
financing statements under the Uniform Commercial Code for filing in such
jurisdictions as the Administrative Agent may require and (ii) lien, tax
and judgment searches conducted on Loan Parties reflecting no Liens other than
Permitted Liens against any of the Collateral as to which perfection of a Lien
is accomplished by the filing of a financing statement.


 


(e)                                  Financial
Statements.  The Lenders shall have
received (i) true and correct copies of the Audited Financial Statements, (ii) complete
drafts of the September 30, 2008 financial statements, and (iii) such
other financial information as the Administrative Agent may reasonably request.


 


(f)                                    Authorizations and Approvals.  All
Governmental Authorities and Persons shall have approved or consented to the
transactions contemplated hereby, including, without limitation, those required
in connection with the continued operation of the Parent and its Subsidiaries,
to the extent required, and such approvals shall be in full force and effect,
and all applicable waiting periods shall have expired without any action being
taken or threatened that would restrain, prevent or otherwise impose adverse
conditions on this Agreement and the actions contemplated hereby.


 


(g)                                 No Proceeding or
Litigation; No Injunctive Relief.  No
action, suit, investigation or other proceeding (including, without limitation,
the enactment or promulgation of a statute or rule) by or before any arbitrator
or any Governmental Authority shall be threatened or pending and no preliminary
or permanent injunction or order by a state or federal court shall have been
entered (i) in connection with this Agreement, the Secured Counterparty
Contracts or any transaction contemplated hereby or thereby or (ii) which,
in any case, in the reasonable judgment of the Administrative Agent, could
reasonably be expected to cause a Material Adverse Effect.


 


(h)                                 No Default.  No Default shall have occurred and be
continuing or would result from such Advance or from the application of the
proceeds therefrom.


 


(i)                                     Representations
and Warranties.  The representations
and warranties contained in Article IV hereof and in each other
Loan Document shall be true and correct before and after giving effect to the
Revolving Advances, to the Bridge Loans, and to the application of the proceeds
from such Revolving Advances and Bridge Loans, from the date of the Revolving
Advances and Bridge Loans, as though made on and as of such date.


 


(j)                                     No Material
Adverse Effect.  Except as set forth
on Schedule 3.01(j), since June 30, 2008, there has been no
material adverse change in the condition (financial or otherwise), results of
operations, assets, properties, business or prospects of the Parent and its
Subsidiaries, taken as a whole.


 


(k)                                  Bridge Financing.  All conditions precedent to the Bridge Loans
shall have been met, and Borrowers shall have received at least $10,400,000.00
of gross cash proceeds from the Bridge Loans.


 


(l)                                     Cash Flow
Budget.  The Administrative Agent and
the Lenders shall have received a cash flow budget for the 20-week period beginning
on the Closing Date, in form and substance acceptable to the Administrative
Agent and the Majority Lenders.


 


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(m)                               Mark-to-Market Report.  The Administrative Agent and the Lenders
shall have received a mark-to-market report of the Loan Parties’ inventory and
forward book as of the Closing Date.


 


(n)                                 Repayment of Any
Borrowing Base Deficiency.  If the
outstanding principal amount of the Revolving Advances plus the Letter
of Credit Exposure, upon the effectiveness of this Agreement, exceed the lesser
of (A) the aggregate Revolving Commitments and (B) the Borrowing
Base, the Borrowers shall have repaid the Revolving Advances, together with
accrued interest to the date of such prepayment on the principal amount prepaid
and amounts, if any, required to be paid pursuant to Section 2.08
as a result of such prepayment being made on such date, in the amount of such
excess, or if the Revolving Advances have been repaid in full, make deposits
into the LC Cash Collateral Account in the remaining amount of such excess to
provide cash collateral for the Letter of Credit Exposure.  Amounts to be applied pursuant to the
immediately preceding sentence shall be applied first to reduce outstanding
Base Rate Advances, second to the LC Cash Collateral Account in an amount equal
to the Lenders’ aggregate Letter of Credit Exposure, and third to reduce
outstanding Eurodollar Advances.


 


(o)                                 Repayment of Any
Swing Line Advances.  The Borrowers
shall have repaid in full any Swing Line Advances under and as defined in the
Existing Credit Agreement, together with any interest accrued on such Swing
Line Advances.


 


(p)                                 Amendment of Master
Transaction Agreement.  The
Administrative Agent shall have received a duly executed amendment to the
Master Transaction Agreement, which amends the Master Transaction Agreement to
amend the definitions of “Liquidity Event” and “Milestone” therein to conform
in all material respects to the definitions of “Liquidity Event” and “Trigger
Event” in this Agreement.


 


Section 3.02                                Conditions Precedent
to Each Credit Event.  The obligation
of each Revolving Lender to make a Revolving Advance on the occasion of each
Borrowing (including the initial Borrowing), the obligation of each Bridge
Lender to make the Bridge Loans, the obligation of each Revolving Lender to
Convert to or Continue a Eurodollar Advance, and the obligation of the Issuing
Bank to issue, extend or increase Letters of Credit shall be subject to the
further conditions precedent that on the Borrowing Date, the date of
Continuation or Conversion, or issuance, extension or increase date of such
Letters of Credit, the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing or Notice of Conversion or Continuation
and the acceptance by the applicable Borrower of the proceeds of such Revolving
Advance or Bridge Loan or the request for the issuance, extension or increase
of a Letter of Credit shall constitute a representation and warranty by such
Borrower that on the date of such Revolving Advance or Bridge Loan, the date of
such Conversion or Continuation, or the date of such issuance, extension or
increase such statements are true):


 


(a)                                  the representations
and warranties contained in Article IV and in each other Loan
Document are true and correct in all material respects on and as of the date of
such Revolving Advance, Bridge Loan, Continuation or Conversion, or the
issuance, extension or increase of such Letter of Credit before and after
giving effect to such Revolving Advance, Bridge Loan, Continuation or
Conversion, or the issuance, extension or increase of such Letter of Credit, or
to the application of the proceeds from such Revolving Advance, Bridge Loan,
Continuation or


 


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Conversion, or the issuance, extension or increase of such Letter of
Credit, as applicable, as though made on, and as of such date;


 


(b)                                 no Default has
occurred and is continuing or would result from such Revolving Advance or
Bridge Loan or from the application of the proceeds therefrom or from such
issuance, extension or increase of such Letter of Credit;


 


(c)                                  the Borrowing Base
Availability is greater than or equal to zero after giving effect to such
Borrowing or the issuance, increase, or extension of such Letter of Credit;


 


(d)                                 no material adverse
change has occurred and is continuing with respect to the Collateral detailed
in the then current Borrowing Base Report; and


 


(e)                                  in the case of making
any Revolving Advances, the Borrowers shall have drawn in full the entire
available amount under the Sowood Documents before the date of such Revolving
Advances.


 


Section 3.03                                Determinations Under
Sections 3.01 and 3.02.  For purposes
of determining compliance with the conditions specified in Sections 3.01
and 3.02, each Lender 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
the Lenders unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received written
notice from such Lender prior to the Borrowings hereunder specifying its
objection thereto and such Lender shall not have made available to the
Administrative Agent such Lender’s ratable portion of such Borrowings.


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES


 


Each Loan Party jointly and severally
represents and warrants as follows:


 


Section 4.01                                Existence;
Subsidiaries.  Each of the Loan
Parties is (a) duly formed, validly existing, and in good standing under
the laws of the jurisdiction of its formation, (b) duly qualified as a
foreign entity and is licensed and in good standing in each jurisdiction where
its ownership, lease or operation of Property or conduct of its business
requires such qualification or license other than such failures to so qualify
that could not, individually or in the aggregate reasonably be expected to have
a Material Adverse Effect.  Each of the
Loan Parties is licensed and in good standing to supply natural gas or
electricity or related products by each of the state public utility commissions
identified on Schedule 4.01, as the same may be updated from time to
time.


 


Section 4.02                                Power and Authority.  Each of the Loan Parties has the requisite
power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (a) own its assets and carry on its business,
including without limitation, to supply natural gas or electricity or related
products to End Users in each of the jurisdictions identified in Schedule
4.01, and (b) execute, deliver and perform the Loan Documents to which
it is a party and to


 


62

















 


perform its
obligations thereunder.  The execution,
delivery, and performance by each Loan Party of this Agreement and the other
Loan Documents to which it is a party and the consummation of the transactions
contemplated hereby (a) have been duly authorized by all necessary organizational
action, (b) do not and will not (i) contravene the terms of any such
Person’s organizational documents, (ii) violate any material Legal
Requirement, or (iii) conflict with or result in any breach or
contravention of, or the creation of any Lien under (A) the provisions of
any indenture, instrument or material agreement to which such Loan Party is a
party or is subject, or by which it, or its Property, is bound or (B) any
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject.


 


Section 4.03                                Authorization and
Approvals.  No authorization,
approval, consent, exemption, or other action by, or notice to or filing with,
any Governmental Authority or any other Person is necessary or required on the
part of any Loan Party in connection with (a) the execution, delivery and
performance by, or enforcement against, any Loan Party of this Agreement and
the other Loan Documents to which it is a party or the consummation of the
Transactions or the transactions contemplated hereby or thereby, (b) the
grant by any Loan Party of the Liens granted by it pursuant to the Loan
Documents, or (c) the perfection or maintenance of the Liens created under
the Loan Documents (including the first priority nature thereof) (other than
the filing of UCC-1 Financing Statements), all of which have been duly
obtained, taken, given or made and are in full force and effect, except actions
by, and notices to or filings with, Governmental Authorities (including, without
limitation, the SEC) that may be required in the ordinary course of business
from time to time or that may be required to comply with the express
requirements of the Loan Documents (including, without limitation, to release
existing Liens on the Collateral or to comply with requirements to perfect,
and/or maintain the perfection of, Liens created for the benefit of the Secured
Parties).


 


Section 4.04                                Enforceable
Obligations.  This Agreement has
been, and each other Loan Document, when delivered hereunder, will have been,
duly executed and delivered by each Loan Party that is a party thereto.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding obligation
of such Loan Party, enforceable against each Loan Party that is party thereto
in accordance with its terms, except as such enforceability may be limited by
any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, or similar law affecting creditors’ rights generally or general
principles of equity.


 


Section 4.05                                Financial
Statements; No Material Adverse Effect.


 


(a)                                  The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) fairly present in all material respects the financial
condition of the Parent and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Parent and its Subsidiaries as
of the date thereof, including liabilities for taxes, material commitments and
Debt.


 


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(b)                                 The cash flow budget
provided pursuant to Section 3.01(l) have been prepared in
good faith by the Parent, based on assumptions believed by the Parent to be
reasonable on the Closing Date.


 


(c)                                  Schedule 4.05
sets forth all material indebtedness and other liabilities, direct or
contingent, of the Parent and its Subsidiaries as of the date of such financial
statements, including liabilities for taxes, contingent liabilities and Debt.


 


(d)                                 Since June 30,
2008, except as set forth on Schedule 3.01(j), there has been no event
or circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.


 


(e)                                  The Borrowers are in
compliance with the covenants set forth in Sections 6.17 through 6.22
hereof as of September 30, 2008, based on the draft financials for the
period ended September 30, 2008.


 


Section 4.06                                True and Complete
Disclosure.  As of the Closing Date,
each Loan Party has disclosed to the Administrative Agent and all of the
Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.  No
information, report, financial statement, exhibit or schedule furnished by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto contained, contains or will contain any misstatement
of material fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading; provided
that, with respect to projected financial information, the Loan Parties
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.


 


Section 4.07                                Litigation.  There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of any Responsible Officer of a
Loan Party after due and diligent investigation, threatened or contemplated, at
law, in equity, in arbitration or before any Governmental Authority, by or
against any Loan Party or any of their Subsidiaries or against any of their
properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
thereby, or (b) either individually or in the aggregate, if determined
adversely, could reasonably be expected to have a Material Adverse Effect.  No regulatory commission is currently
conducting and has conducted within the five-year period immediately preceding
the Closing Date, an investigation of the Parent or any of its Subsidiaries,
other than an investigation conducted by such regulatory commission in its
routine general administrative practice.


 


Section 4.08                                Compliance with Laws.  None of the Loan Parties or any of the Subsidiaries
or any of the Loan Parties’ operation of their respective material properties (a) is
in violation of, nor will the continued operation by the Loan Parties of their
material properties as currently conducted violate, any Legal Requirement
(including any Environmental Law, but excluding any Legal Requirement with
respect to their ability to supply natural gas or electricity or related
products to End Users in each of the jurisdictions identified in Schedule
4.01) the violation of which could reasonably be expected to have a
Material Adverse Effect, (b) is in


 


64

















 


default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority the default of which could reasonably be expected to have a Material
Adverse Effect, or (c) in material violation of any Legal Requirement with
respect to their ability to supply natural gas or electricity or related
products to End Users in each of the jurisdictions identified in Schedule
4.01.


 


Section 4.09                                No Default.  None of the Loan Parties or any of its
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.  None of the Parent or any of its Subsidiaries
is in default in any manner under any provision of any indenture or other
agreement or instrument evidencing Debt, any Material Contract or any other
material agreement or instrument to which it is a party or by which it or any
of its properties or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.  No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.


 


Section 4.10                                Subsidiaries;
Corporate Structure.  Schedule
4.10 sets forth as of the Closing Date a list of all Subsidiaries of the
Parent and, as to each such Subsidiary, the jurisdiction of formation and the
outstanding Equity Interests therein and the percentage of each class of such
Equity Interests owned by the Parent and the Subsidiaries.  The Equity Interests indicated to be owned by
the Parent and the Subsidiaries on Schedule 4.10 are fully paid and
non-assessable and are owned by the persons indicated on such Schedule, free
and clear of all Liens (other than Permitted Liens).


 


Section 4.11                                Condition of
Properties.


 


(a)                                  Each Loan Party has
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its
business, except for such minor defects in title that do not materially
interfere with its ability to conduct its business as currently conducted or to
utilize such properties and assets for their intended purposes.  None of the property of Loan Parties is
subject to Liens, other than Permitted Liens.


 


(b)                                 Each Loan Party has
complied in all material respects with all obligations under all material
leases to which it is a party and all such leases are in full force and
effect.  Each Loan Party enjoys peaceful
and undisturbed possession under all such material leases.


 


(c)                                  Neither the business
nor the material Properties of any Loan Party has been affected as a result of
any fire, explosion, earthquake, flood, drought, windstorm, accident, strike or
other labor disturbance, embargo, requisition or taking of Property or
cancellation of contracts, permits or concessions by a Governmental Authority,
riot, activities of armed forces or acts of God or of any public enemy.


 


Section 4.12                                Environmental
Condition.


 


(a)                                  Except as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, the Loan Parties (i) have obtained all Environmental
Permits necessary for the ownership and operation of their respective material
Properties and the conduct


 


65

















 


of their respective businesses; (ii) have been and are in
compliance with all terms and conditions of such Environmental Permits and with
all other requirements of applicable Environmental Laws; (iii) have not
received notice of any violation or alleged violation of any Environmental Law
or Environmental Permit; and (iv) are not subject to any actual or
contingent Environmental Claim.


 


(b)                                 None of the present or
previously owned or operated Properties of the Loan Parties or of any of their
present or former Subsidiaries, wherever located, (i) has been placed on
or proposed to be placed on the National Priorities List, CERCLIS, or their
state or local analogs, nor has the Parent or any of its Subsidiaries been
otherwise notified of the designation, listing or identification of any
Property of such Loan Party or any of its present or former Subsidiaries as a
potential site for removal, remediation, cleanup, closure, restoration,
reclamation, or other response activity under any Environmental Laws (except as
such activities may be required by permit conditions); (ii) is subject to
a Lien, arising under or in connection with any Environmental Laws, that
attaches to any revenues or to any Property owned or operated by the Loan
Parties or any of their present or former Subsidiaries, wherever located; or (iii) has
been the site of any Release (as defined under any Environmental Law) of
Hazardous Substances from present or past operations which has caused at the
site or at any third-party site any condition that has resulted in or could
reasonably be expected to result in the need for Response (as defined under any
Environmental Law) and none of the Loan Parties or any of their present or
former Subsidiaries has generated or transported or has caused to be generated
or transported Hazardous Substances to any third party site which could
reasonably be expected to result in the need for Response.


 


(c)                                  Without limiting the
foregoing, the present and future liability, if any, of the Parent or any of
its Subsidiaries, which could reasonably be expected to arise in connection with
requirements under Environmental Laws could not reasonably be expected to have
a Material Adverse Effect.


 


Section 4.13                                Insurance.


 


(a)                                  Schedule 4.13
sets forth a true, complete and correct description of all insurance maintained
by the Loan Parties as of the Closing Date. 
As of such date, such insurance is in full force and effect and all
premiums have been duly paid.


 


(b)                                 The properties of the
Loan Parties are insured with financially sound and reputable insurance
companies not Affiliates of any Loan Party, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
applicable Loan Party operates.


 


Section 4.14                                Taxes.  Each Loan Party has filed all material
Federal, state and other tax returns and reports required to be filed, and have
paid all material Federal, state and other taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP.  There is no written proposed tax assessment
against the Parent or any Subsidiary thereof that would, if made, have a
Material Adverse Effect.


 


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Section 4.15                                ERISA Compliance.


 


(a)                                  Except as could not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect, the Parent and its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder.


 


(b)                                 Except as could not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect, each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws.  Each Plan that is intended to qualify under Section 401(a) of
the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Parent, nothing has occurred
which would prevent, or cause the loss of, such qualification.  The Parent and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.


 


(c)                                  (i) No ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events, could reasonably be expected to result in
material liability of the Parent or any of its ERISA Affiliates; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither the Parent
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the
Parent nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Parent nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.


 


Section 4.16                                Security Interests.


 


(a)                                  The Pledge Agreement
is effective to create in favor of the Administrative Agent, for the benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in such Pledge Agreement) and, when such Collateral (to
the extent such Collateral constitutes a certificated security under the
applicable Uniform Commercial Code) is delivered to such Administrative Agent,
such Pledge Agreement shall constitute a fully perfected first priority Lien
on, and security interest in, all right, title and interest of the pledgors
thereunder in such Collateral, in each case prior and superior in right to any
other person.


 


(b)                                 The Security Agreement
is effective to create in favor of the Administrative Agent, for the benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in such Security Agreement) and, when financing statements
in appropriate form are filed in the offices specified on Schedule 1 to the
Security Agreement, such Security Agreement shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the
grantors thereunder in such portion of the Collateral in which a security
interest may be perfected by the filing of a financing statement under the
applicable Uniform


 


67

















 


Commercial Code, in each case prior and superior in right to any other
person, other than Permitted Liens.


 


Section 4.17                                Bank Accounts.  Schedule 4.17 sets forth the account
numbers and locations of all bank accounts of the Loan Parties as of the
Closing Date.


 


Section 4.18                                Labor Relations.  Except as could not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect, there (a) is
no unfair labor practice complaint pending against the Parent or any of its
Subsidiaries or, to the knowledge of any Responsible Officer of a Loan Party,
threatened against any of them, before the National Labor Relations Board (or
any successor United States federal agency that administers the National Labor
Relations Act), and no grievance or arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against the Parent or
any of its Subsidiaries or, to the knowledge of any Responsible Officer of a
Loan Party, threatened against any of them, (b) are no strikes, lockouts,
slowdowns or stoppage against the Parent or any Subsidiary pending or, to
the knowledge of any Loan Party, threatened and (c) no union
representation petition existing with respect to the employees of the Parent or
any of its Subsidiaries and no union organizing activities are taking
place.  The hours worked by and payments
made to employees of the Parent and the Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable federal, state,
provincial, local or foreign law dealing with such matters, except where such violation,
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.  All
payments due from the Parent or any Subsidiary, or for which any claim may be
made against the Parent or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Parent or such Subsidiary, except where the
failure to do the same, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.  The consummation of the transactions
contemplated hereby will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which the Parent or any Subsidiary is bound.


 


Section 4.19                                Intellectual
Property.  Each Loan Party owns or is
licensed or otherwise has full legal right to use all of the patents,
trademarks, service marks, trade names, copyrights, franchises, authorizations
and other rights that are reasonably necessary for the operation of its
business, without conflict with the rights of any other Person with respect
thereto that could reasonably be expected to have a Material Adverse Effect.


 


Section 4.20                                Solvency.  Immediately following the making of each
Revolving Advance and Bridge Loan and after giving effect to the application of
the proceeds of each Revolving Advance and Bridge Loan, (a) the fair value
of the assets of each of the Borrowers, Holdings and the Loan Parties, taken as
a whole, will exceed their respective debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the
property of each of the Borrowers, Holdings and the Loan Parties, taken as a
whole, will be greater than the amount that will be required to pay the
probable liability of their respective debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each of the Borrowers, Holdings and the
Loan Parties, taken as a whole, will be able to pay their respective debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each of the


 


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Borrowers,
Holdings and the Loan Parties, taken as a whole, will not have unreasonably
small capital with which to conduct the business in which they are engaged as
such business is now conducted and is proposed to be conducted following the
Closing Date.


 


Section 4.21                                Senior Indebtedness.  The obligations of the Loan Parties hereunder
constitute senior indebtedness (however denominated) in respect of any
Subordinated Indebtedness of the Parent and its Subsidiaries.


 


Section 4.22                                Margin Regulations.  None of the Loan Parties is engaged and will
engage, principally or as one of its important activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U), or
extending credit for the purpose of purchasing or carrying margin stock.  No part of the proceeds of any Revolving
Advance or Bridge Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry any
margin stock (within the meaning of Regulation U) or to refinance any Debt
originally incurred for such purpose, or for any other purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations
of the Board, including Regulation T, U or X.


 


Section 4.23                                Investment Company
Act.  None of the Parent, any Person
Controlling the Parent, or any Subsidiary is or is required to be registered as
an “investment company” under the Investment Company Act of 1940.


 


Section 4.24                                Names and Locations.  As of the Closing Date, Schedule 4.24 sets
forth (a) all legal names and all other names (including trade names,
fictitious names and business names) under which the Loan Parties currently
conduct business, or has at any time during the past five years conducted
business, (b) the name of any entity which any Loan Party has acquired in
whole or in part or from whom any Loan Party has acquired a significant amount
of assets within the past five years, (c) the state or other jurisdiction
of organization or incorporation for each Loan Party and sets forth each Loan
Party’s organizational identification number or specifically designates that
one does not exist, and (d) the location of all offices of the Loan
Parties and the locations of all inventory of the Borrowers and their Subsidiaries.


 


Section 4.25                                Revisions or Updates
to the Schedules.  Should any of the
information or disclosures provided on Schedules 1.01(c),  4.01 or
4.24 originally attached hereto become outdated or incorrect in any
material respect, the Borrowers from time to time shall deliver to the
Administrative Agent and the Lenders such revisions or updates to such schedule(s) whereupon
such schedules shall be deemed to be amended by such revisions or updates, as
may be necessary or appropriate to update or correct such schedule(s), provided
that, notwithstanding the foregoing, no such revisions or updates shall be
deemed to have amended, modified, or superseded any such schedules as
originally attached hereto, or to have cured any breach of warranty or
representation resulting from the inaccuracy or incompleteness of any such
schedules, unless and until the Administrative Agent shall have accepted in
writing such revisions or updates to any such schedules.


 


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ARTICLE V


 


AFFIRMATIVE COVENANTS


 


So long as any Revolving Advance, Bridge
Loan, or any amount under any Loan Document shall remain unpaid, any Lender
shall have any Revolving Commitment hereunder, or there shall exist any Letter
of Credit Exposure, unless the Majority Lenders shall otherwise consent in
writing, each Loan Party shall:


 


Section 5.01                                Preservation of
Existence, Etc.  Except as permitted
by Section 6.03, (a) preserve, renew and maintain in full
force and effect its legal existence and good standing under the Legal
Requirements of the jurisdiction of its formation, (b) in the case of the
Borrowers and their Subsidiaries, be licensed and in good standing to supply
natural gas or electricity or related products by each of the state public
utility commissions identified on Schedule 4.01 so long as the such Loan
Party is still supplying natural gas or electricity or related products in the
relevant jurisdiction, (c) take all reasonable action to obtain, preserve,
renew, extend, maintain and keep in full force and effect all rights,
privileges, permits, licenses, authorizations and franchises necessary or
desirable in the normal conduct of its business, including, in the case of the
Borrowers and their Subsidiaries, those rights, privileges, permits, licenses, authorizations
and franchises necessary to supply natural gas or electricity or related
products to End Users in each of the jurisdictions identified in Schedule
4.01 so long as the such Loan Party is still supplying natural gas or
electricity or related products in the relevant jurisdiction, and (d) qualify
and remain qualified as a foreign entity in each jurisdiction in which
qualification is necessary in view of its business and operations or the
ownership of its Properties other than such failures to so qualify that could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


Section 5.02                                Compliance with
Laws, Etc.  Comply (a) with all
Legal Requirements (including without limitation, all Environmental Laws and ERISA
but excluding, in the case of the Borrowers and their Subsidiaries, any Legal
Requirement with respect to their ability to supply natural gas or electricity
or related products to End Users in each of the jurisdictions identified in Schedule
4.01) applicable to it or to its business or property, except in such
instances in which such Legal Requirement is being contested in good faith by
appropriate proceedings diligently conducted and for which the failure to so
comply could not reasonably be expected to have a Material Adverse Effect and (b) in
all material respects with, in the case of the Borrowers and their
Subsidiaries, any Legal Requirement with respect to their ability to supply
natural gas or electricity or related products to End Users in each of the
jurisdictions identified in Schedule 4.01.


 


Section 5.03                                Maintenance of
Property.  (a) Maintain and
preserve all Property material to the conduct of its business and keep such
Property in good repair, working order and condition, (b) from time to time
make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times and (c) use
the standard of care typical in the industry in the operation and maintenance
of its facilities.


 


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Section 5.04                                Maintenance of
Insurance.


 


(a)                                  Maintain with
financially sound and reputable insurance companies not Affiliates of any Loan
Party, insurance with respect to its Properties and business, to the extent and
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons and such
other insurance as may be required by law.


 


(b)                                 (i) Cause all
such policies covering any Collateral to be endorsed or otherwise amended to
include a customary lender’s loss payable endorsement, in form and substance
reasonably satisfactory to the Administrative Agent, which endorsement shall
provide that, from and after the Closing Date, if the insurance carrier shall
have received written notice from the Administrative Agent of the occurrence of
an Event of Default, the insurance carrier shall pay all proceeds otherwise
payable to a Loan Party under such policies directly to the Administrative
Agent; (ii) deliver original or certified copies of all such policies to
the Administrative Agent; cause each such policy to provide that it shall not
be canceled, modified or not renewed upon not less than 30 days’ prior written
notice thereof by the insurer to the Administrative Agent; and (iii) deliver
to the Administrative Agent, prior to the cancellation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent) together with evidence satisfactory to the Administrative
Agent of payment of the premium therefor.


 


Section 5.05                                Payment of Taxes,
Etc.  Pay and discharge as the same
shall become due and payable, all its obligations and liabilities in accordance
with their terms, including (a) all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its Property, unless the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the applicable Loan Party; (b) all
lawful claims which, if unpaid, might by law become a Lien upon its Property in
violation of this Agreement; and (c) all Debt, as and when due and
payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Debt, including, without limitation,
the Intercreditor Agreement.


 


Section 5.06                                Reporting
Requirements.  Deliver to the
Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent and the Revolving Lenders:


 


(a)                                  Audited Annual
Financials.  As soon as available and
in any event not later than 120 days after the end of each fiscal year of the
Parent (beginning for the fiscal year ending June 30, 2008), copies of (i) the
audited consolidated and unaudited consolidating balance sheets of the Parent
and its Subsidiaries, in each case, as at the end of such fiscal year, together
with, in each case, the related audited consolidated and unaudited
consolidating statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, and the notes thereto, all in reasonable detail and
setting forth in each case in comparative form the audited consolidated figures
as of the end of and for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP (subject only to normal year-end audit
adjustments and the absence of footnotes with respect to any consolidating
statements) and (x) in the case of each of such audited consolidated
financial statements (excluding any statements in comparative form to be


 


71

















 


corresponding figures from the consolidated budget), accompanied by a
report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Revolving Lenders, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of
such audit and shall state that such consolidated financial statements present
fairly, in all material respects, the consolidated financial position of the
Parent and its respective Subsidiaries as at the end of such fiscal year and
their consolidated results of operations and cash flows for such fiscal year in
conformity with GAAP; or words substantially similar to the foregoing and that
the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards, and (y) in the case of such unaudited consolidating
financial statements, certified by a Financial Officer of the Parent that such
financial statements have been prepared in accordance with GAAP consistently
applied and presents fairly, in all material respects, the information
contained therein as at the date and for the periods covered thereby and (ii) the
consolidated and consolidating unaudited Non-GAAP Financial Reporting financial
statements of the Parent and its Subsidiaries for such fiscal year including a
reconciliation to the GAAP financial statements;


 


(b)                                 Monthly Financials.  As soon as available and in any event not
later than 45 days after the end of each month (beginning with the month ending
September 30, 2008), (i) a consolidated and, for the end of March,
June, September, and December, consolidating balance sheet of the Parent and
its Subsidiaries as at the end of such month, and the related consolidated and,
for the end of March, June, September, and December, consolidating statements
of income or operations, shareholders’ equity and cash flows for such month and
for the portion of the Parent’s fiscal year then ended, and setting forth in
each case with respect to such consolidated statements, in comparative form the
consolidated figures for the corresponding month of the previous fiscal year
and the corresponding portion of the previous fiscal year, all in reasonable
detail and certified by a Financial Officer of the Parent as fairly presenting
in all material respects the financial condition, results of operations,
shareholders’ equity and cash flows of the Parent and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes and (ii) the Parent’s and its Subsidiaries’
consolidated and, for the end of March, June, September, and December,
consolidating Non-GAAP Financial Reporting financial statements including a
reconciliation with the GAAP financial statements described in the foregoing
clause (i) and a management discussion and analysis of the financial
results;


 


(c)                                  Compliance
Certificates.  (i) Concurrently
with the delivery of the financial statements referred to in Section 5.06(a),
a certificate of its independent certified public accountants rendering the
report thereon stating whether, in connection with their audit examination,
anything has come to their attention which would cause them to believe that any
Default or Event of Default with respect to accounting matters existed on the
date of such financial statements, and if such a condition or event has come to
their attention, specifying in reasonable detail the nature and period, if known,
of existence thereof and (ii) concurrently with the delivery of the
financial statements referred to in Sections 5.06(a) and (b),
a duly completed Compliance Certificate signed by a Financial Officer of the
Parent;


 


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(d)                                 Management Letters.
Promptly upon receipt thereof, copies of any detailed audit reports, management
letters and any reports as to material inadequacies in accounting controls
(including reports as to the absence of any such inadequacies) or
recommendations submitted to the board of directors (or the audit committee of
the board of directors) of the Parent by independent accountants in connection
with the accounts or books of the Parent or any Subsidiary thereof, or any
audit of any of them;


 


(e)                                  Borrowing Base
Reports.  (i) Within five
Business Days after the seventh, fifteenth, and twenty-second calendar day and
last Business Day of each calendar month, a Borrowing Base Report as of such
day, together with, in the case of the reports dated as of the fifteenth
calendar day and last Business Day of each calendar month, supporting
documentation reasonably acceptable to the Administrative Agent, including
without limitation, aggregate account receivable agings for each LDC and of End
Users by LDC, accounts payable agings, aggregate account receivables past due
for each LDC and End Users by LDC, a schedule of Imbalances and Eligible LDC
Residual Contract Rights, copies of all Imbalance statements from LDCs received
since the delivery of the last Borrowing Base Report, potential First Purchaser
Liens, cash reconciliations, a schedule of inventory balances, a schedule of
any net mark to market gains or losses with respect to Swap Contracts, and a
listing of outstanding loans, letters of credit and offset reconciliations,
each in such reasonable detail and in a format as the Administrative Agent may
require and (ii) within 60 days following the last day of each fiscal
quarter, a Borrowing Base Report as of the last day of such fiscal quarter,
together with supporting documentation reasonably acceptable to the
Administrative Agent, setting forth (A) the actual Borrowing Base as of
the end of such fiscal quarter, (B) any significant discrepancies in the
Borrowing Base since the date of the Borrowing Base Report delivered pursuant
to clause (i) above as of the last day of such fiscal quarter and (C) a
statement explaining the reasons for any such discrepancies;


 


(f)                                    Risk Management
Policy Certification and Report.  (i) Within
seven Business Days after the fifteenth and last Business Day of each calendar
month, a certificate in substantially the form of the attached Exhibit K
from a Responsible Officer of a Borrower certifying that the Borrowers are in
compliance with the Borrower’s Risk Management Policy; (ii) simultaneously
with any modification of the Risk Management Policy, a written notice with a
description of such modification, a copy of such modification, and, if the
Majority Lenders have not consented to such modification, a certification that
the modification does not materially change the Risk Management Policy; and (iii) within
seven Business Days after the last Business Day of each calendar month, a
monthly comprehensive risk management report in a format reasonably acceptable
to the Administrative Agent, setting forth the Borrowers’ overall hedging
positions, forward book, inventory positions, and transportation and storage
capacities;


 


(g)                                 Marketing Report.  Within seven Business Days after the last
Business Day of each calendar month, a monthly comprehensive marketing report
detailing (i) the Borrowers’ and their Subsidiaries’ acquisition of any
new End User accounts by LDC and by fixed or floating price contract and
specifying the weighted average costs for each new End User and whether such acquisitions
were through organic customer growth or acquisition from a third party and (ii) the
natural gas and electricity break even price for each LDC, all in a format
reasonably acceptable to the Administrative Agent;


 


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(h)                                 Securities Law
Filings and other Public Information. 
Promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Parent, and copies of all annual, regular, periodic and
special reports and registration statements which the Parent may file or be
required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934 or any other securities Governmental Authority,
and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;


 


(i)                                     USA Patriot Act.  Promptly, following a request by any Lender,
all documentation and other information that such Lender reasonably requests in
order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the
USA Patriot Act;


 


(j)                                     Parent
Guarantees.  (i) With the
delivery of the financial statements under Section 5.06(b), a list of the
Parent’s guarantees of obligations of its Subsidiaries, including the name of
each beneficiary and the maximum amount guaranteed, and (ii) promptly, and
in any event with five Business Days after receipt thereof, any notice of
default or claim delivered under any such guarantees;


 


(k)                                  Cash Flow Budgets.  No later than the second Business Day of each
week, (i) a revised cash flow budget as of the last Business Day of the
prior week, (ii) a variance report of actual cash flow for the prior week
versus the cash flow budget most recently delivered pursuant to this clause
(k), and (iii) a management discussion of any such variances that are
material, each in form and substance reasonably acceptable to the
Administrative Agent and the Majority Lenders;


 


(l)                                     Mark-to-Market
Reports.  No later than the second
Business Day of each week, a revised mark-to-market report of the Loan Parties’
inventory and forward book as of the last Business Day of the prior week, in
form and substance reasonably acceptable to the Administrative Agent and the
Majority Lenders;


 


(m)                               Projections.  Within 15 days after the Closing Date, the
Parent’s forecasted consolidated annual with monthly breakdowns: (i) balance
sheets; (ii) profit and loss statements; (iii) cash flow statements;
and (iv) capitalization statements, in each case for fiscal years 2009 and
2010, together with supporting details; and


 


(n)                                 Other Information.  Such other information respecting the
business, Properties or Collateral, or the condition or operations, financial
or otherwise, of the Parent and its Subsidiaries as the Administrative Agent or
any Lender may from time to time reasonably request.


 


Section 5.07                                Other
Notices.  Deliver to the
Administrative Agent and each Lender prompt written notice of the following:


 


(a)                                  Defaults.  The occurrence of any Default or Event of
Default or any other Debt of any Loan Party being declared when due and payable
before its expressed maturity, or any holder of such Debt having the right to
declare such Debt due and payable before its expressed 


 


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maturity, because of the occurrence of any default (or any event which,
with notice and/or the lapse of time, shall constitute any default) under such
Debt;


 


(b)                                 Litigation.  The filing or commencement of, or any threat
or notice of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Parent, any Subsidiary or any Affiliate thereof, or any
material development in any such action, suit, proceeding, that, in either
case, could reasonably be expected to result in a Material Adverse Effect; and


 


(c)                                  ERISA Events.  The occurrence of any ERISA Event that, alone
or together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Loan Parties in an aggregate amount
exceeding $500,000.00;


 


(d)                                 Environmental
Notices.  A copy of any form of
notice, summons, material correspondence or citation received from any Governmental
Authority or any other Person, concerning (i) material violations or
alleged violations of Environmental Laws, which seeks or threatens to impose
liability therefor, (ii) any material action or omission on the part of
the Parent or any of its Subsidiaries in connection with Hazardous Material, (iii) any
notice of potential responsibility or liability under any Environmental Law, or
(iv) concerning the filing of a Lien other than a Permitted Lien upon,
against or in connection with the Parent or any of its Subsidiaries, or any of
their leased or owned material Property, wherever located;


 


(e)                                  Collateral.  Furnish to the Administrative Agent:


 


(i)                                     written
notice of:


 


(A)                              any
change of its legal name, corporate structure, jurisdiction of organization or
formation or its organizational identification number within 30 days before the
occurrence thereof;


 


(B)                                an
Asset Disposition within 30 days before the occurrence thereof;


 


(C)                                a
casualty or condemnation with respect to any portion of Collateral with a
market value in excess of $500,000.00 promptly and in any event within five
Business Days after the occurrence thereof;


 


(D)                               an
account in excess of $250,000.00 or accounts in excess of $500,000.00 in the
aggregate becoming subject to any dispute or claim or other circumstances known
to any Loan Party that may materially impair the validity or collectibility of
such accounts promptly and in any event within five Business Days after the
occurrence thereof;


 


(E)                                 any
material correspondence received by any Loan Party from any insurer with
respect to any insurance maintained in accordance with Section 5.04
promptly and in any event with five Business Days after the receipt thereof;


 


(F)                                 a
Borrower or any of its Subsidiaries holding or obtaining any (1) Chattel Paper,
(2) Instrument, or (3) Letter of Credit, each in excess of 


 


75

















 


$250,000.00 individually and $500,000.00 in
the aggregate promptly and in any event with two Business Days after the
receipt thereof;


 


(G)                                Collateral  with an aggregate value in excess of
$500,000.00 at any time being in the possession or control of any warehouse or
bailee not previously disclosed promptly and in any event within 10 Business
Days before the occurrence thereof;


 


(H)                               Collateral
with an aggregate value in excess of $500,000.00 being of a type where a Lien
may be registered, recorded or filed under, or notice thereof given under, any
federal statute or regulation or any material Collateral constitutes a claim
against the United States of America, or any State or municipal government or
any department, instrumentality or agency thereof, the assignment of which
claim is restricted by law promptly and in any event within five Business Days
of the existence thereof;


 


(I)                                    a
new LDC with which a Borrower or any of its Subsidiaries has entered into any
agreement and a copy of all such agreements within five Business Days after the
occurrence thereof; and


 


(J)                                   any
notice received from an LDC of default or claim under any agreement between a
Borrower or any of its Subsidiaries and such LDC promptly and in any event
within two Business Days after the receipt thereof and


 


(ii)                                  from
time to time upon request, statements and schedules further identifying,
updating, and describing the Collateral and such other information, reports and
evidence concerning the Collateral, as Collateral Agent may reasonably request,
all in reasonable detail;


 


(f)                                    Casualties and
Takings.  Any actual or constructive
loss by reason of fire, explosion, theft or other casualty, of any Property of
any Loan Party or any taking of title to, or the use of, any Property of any
Loan Party pursuant to eminent domain or condemnation proceedings or any
settlement or compromise thereof, in each case, with a value equal to or greater
than $1,000,000.00, and a certificate of a Responsible Officer of the Borrowers
describing the nature and status of such occurrence;


 


(g)                                 Material Contracts.  Prompt written notice of (i) any
nonrenewal of the initial term or any renewal term under any Material Contract,
(ii) any event or condition which results in, or could be expected to
result in, an early termination or cancellation of any Material Contract, and (iii) any
default by a Borrower or, to the knowledge of a Borrower, any other Person party
to any Material Contract; and


 


(h)                                 Material Changes.  Any development that has resulted in, or
could reasonably be expected to result in, a Material Adverse Effect.


 


Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Borrowers setting forth details of
the occurrence referred to therein and stating what action the Borrowers have
taken and propose to take with respect thereto. 
Each notice 


 


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pursuant to Section 5.07(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.


 


Section 5.08                                Books
and Records; Inspection.  (a) Keep
proper records and books of account in which full, true and correct entries
will be made in accordance with GAAP and all Legal Requirements, reflecting all
financial transactions and matters involving the assets and business of the
Loan Parties and their Subsidiaries; (b) maintain such books and records
of account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over the Loan Parties and
their Subsidiaries, as the case may be; (c) from time-to-time during
regular business hours upon reasonable prior notice to the applicable Loan
Party or Subsidiary, permit representatives and independent contractors of the
Administrative Agent and each Lender, for purposes of performing a Collateral
field examination, (i) to visit and inspect any of its Properties, (ii) to
examine its corporate, financial and operating records, and make copies thereof
or abstracts therefrom and (iii) to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Borrowers and at such reasonable times during normal
business hours and as often as may be reasonably desired, (d) permit the
Administrative Agent, upon request, to conduct, or hire a third party to
conduct, on behalf of the Secured Parties, a review of position reports and
Risk Management Policies of the Borrowers and their Subsidiaries, and (e) within
180 days after the Closing, permit the Administrative Agent or its designee to
perform, on behalf of the Secured Parties and at the expense of the Borrowers,
one assessment of the Borrowers’ procedures, policies and systems relating to
the Risk Management Policy.  Unless a
Default has occurred and is continuing, the Collateral field exams shall be
performed no more often than on a semi-annual basis commencing on the date
three months following the Closing Date at the Borrowers’ expense.  Any additional Collateral field examinations
shall be at the Lenders’ expense unless a Default has occurred and is
continuing at the time of such review.


 


Section 5.09                                Use
of Proceeds.   Use the proceeds of
the Revolving Advances, Bridge Loans, and Letters of Credit only for working
capital purposes, including the purchase and sale of natural gas or
electricity, including to facilitate the Borrowers’ and their Subsidiaries’
purchase, transportation, storage and sale of natural gas or electricity, for
Swap Contracts related to hedging of natural gas or electricity, for margin
financing of natural gas or electricity.


 


Section 5.10                                Nature
of Business.  Maintain and operate such
business in substantially the manner in which it is presently conducted and
operated.


 


Section 5.11                                Risk
Management Policy.  Comply with the
Risk Management Policy delivered on the Closing Date and any amendments to such
Risk Management Policy.


 


Section 5.12                                Additional
Guarantors.  Notify the
Administrative Agent at the time that any Person becomes a Subsidiary of the
Parent, and promptly thereafter (and in any event within 30 days), (a) cause
such Person to (i) become a Guarantor by executing and delivering to the
Administrative Agent a counterpart of the Guaranty or such other document as
the Administrative Agent shall deem appropriate for such purpose, (ii) deliver
to the Administrative Agent documents of the types referred to in clauses Section 3.01(a)(viii),
(ix) and (x) and favorable 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 (i)), all
in form, content and scope reasonably satisfactory to the Administrative Agent
and 


 


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(iii) execute such other Security Documents as the Administrative
Agent or any Revolving Lender may reasonably request, in each case to secure
the Obligations and (b) cause the stockholder of such Person to execute a
Pledge Agreement pledging 100% of its interests in the Equity Interest of such
Person to secure the Obligations and such evidence of corporate authority to
enter into and such legal opinions in relation to such Pledge Agreement as the
Administrative Agent may reasonably request, along with share certificates
pledged thereby and appropriately executed stock powers in blank; provided
that, no new Subsidiary that is a controlled foreign corporation under Section 957
of the Code shall be required to become a Guarantor or enter into any Security
Documents if such Guaranty or the entering into of such Security Documents
would reasonably be expected to result in any material incremental income tax
liability and the Parent or any Subsidiary domiciled in the United States that
is an equity holder of a controlled foreign corporation under Section 957
of the Code shall only be required to pledge 65% of the Equity Interest of such
controlled foreign corporation pursuant to the applicable Pledge Agreement.


 


Section 5.13                                Additional
Collateral Requirements.


 


(a)                                  Accounts.  At their own expense, use its reasonable
efforts to assure prompt payment of all amounts due or to become due under
accounts;


 


(b)                                 Deposit Accounts.  Establish lockboxes and blocked accounts
(collectively, “Blocked Accounts”) in the name of a Borrower or any of
its Subsidiaries with such banks (“Collecting Banks”) as are reasonably
acceptable to the Administrative Agent (subject to irrevocable instructions
acceptable to Administrative Agent as hereinafter set forth) or with the
Administrative Agent and all invoices evidencing accounts (other than accounts
payable to an LDC) shall bear a notice that such invoices are payable to such
Blocked Accounts and in which a Borrower or one of its Subsidiaries, as
applicable, and each LDC will immediately deposit all payments made for
inventory or other payments constituting proceeds of Collateral, in the case of
the Borrowers and their Subsidiaries, in the identical form in which such
payment was made, whether by cash or check. 
The Collecting Banks shall acknowledge and agree, pursuant to an Account
Control Agreement, that all payments made to the Blocked Accounts are for the
benefit of the Administrative Agent and the Secured Parties, and that the
Collecting Banks have no right to setoff against the Blocked Accounts, other
than for customary charges of the Collecting Bank for depositary services.  Upon the occurrence and continuance of an
Event of Default, each Borrower and each Subsidiary shall irrevocably instruct
each Collecting Bank to promptly transfer all payments or deposits (with
certain exceptions as agreed to by the Administrative Agent) into the Blocked
Accounts into the Administrative Agent’s Account on each Business Day.  If any Loan Party shall receive any monies,
checks, notes, drafts or any other payments relating to and/or proceeds of
accounts or other Collateral, such Person shall hold such instrument or funds
in trust for the Administrative Agent, and, immediately upon receipt thereof,
shall remit the same or cause the same to be remitted, in kind, to the Blocked
Accounts or after the occurrence and continuance of an Event of Default, to the
Administrative Agent at its address set forth in Section 10.02 below.


 


Section 5.14                                Further
Assurances in General.  Execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing or
continuation statements or amendments thereto (or similar documents required by
any laws of any applicable jurisdiction)), which may be required under 


 


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any Legal Requirement, or which the Administrative Agent or the Majority
Lenders may reasonably request, all at the expense of the Borrowers.  Each Borrower also agrees to provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.  Each Borrower agrees not to effect or permit
any change referred to in Section 5.07(e)(i)(A) unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to continue at all times
following such change to have, and each Loan Party agrees to take all necessary
action to ensure that the Administrative Agent does continue at all times to
have, a valid, legal and perfected security interest in all the Collateral.
Each Borrower also agrees promptly to notify the Administrative Agent if any
material portion of the Collateral is damaged or destroyed.


 


Section 5.15                                Secured
Counterparty Guaranty  Maintain in
full force for any Secured Counterparty without an Investment Grade Rating, a
Secured Counterparty Parent Guaranty or Acceptable Credit Support.


 


Section 5.16                                Monthly
Conference Calls   Participate in,
and cause its officers and employees to participate in, monthly conference
calls with the Administrative Agent, the Lenders, and their advisors with
respect to the Loan Parties and their businesses, financial position, and
related matters, to be scheduled at a time during the second half of each month
reasonably requested by the Administrative Agent.


 


Section 5.17                                Retention
of Financial Advisor by Administrative Agent  Cooperate in all respects with, and hereby
agrees to the retention of, and hereby agrees to pay the costs, fees, and
expenses associated with, any financial advisor retained by the Administrative
Agent; provided that the costs, fees, and expenses payable pursuant to
this Section 5.17 in connection with the financial advisor services
provided by Goldin Inc. shall be limited to $250,000.00.


 


ARTICLE VI


 


NEGATIVE COVENANTS


 


So long as any Revolving Advance, Bridge
Loan, or any amount under any Loan Document shall remain unpaid, any Lender
shall have any Revolving Commitment, or there shall exist any Letter of Credit
Exposure, unless the Majority Lenders otherwise consent in writing, no Loan
Party shall:


 


Section 6.01                                Liens,
Etc. Create, assume, incur or suffer to exist, any Lien on or in respect of
any of its Property whether now owned or hereafter acquired, other than the
following (“Permitted Liens”):


 


(a)                                  Liens pursuant to any
Loan Document;


 


(b)                                 Excepted Liens;


 


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(c)                                  Liens existing on the
Closing Date and described in Schedule 6.01; provided that such Liens
shall secure only those obligations which they secure on the Closing Date and
extensions, renewals and replacements thereof permitted hereunder;


 


(d)                                 Liens arising out of
judgments or awards in respect of which the Parent or any of the Subsidiaries
shall in good faith be prosecuting an appeal or proceedings for review in
respect of which there shall be secured a subsisting stay of execution pending
such appeal or proceedings; provided
that the aggregate amount of all such judgments or awards (and any cash and the
fair market value of any property subject to such Liens) does not exceed
$500,000.00 at any time outstanding;


 


(e)                                  Liens securing Debt
permitted under Section 6.02(e)(i) and purchase money security
interests securing Debt permitted under Section 6.02(e)(ii) in
any fixed or capital assets and improvements thereto or equipment hereafter
acquired (or, in the case of improvements, constructed) by the Parent or any of
its Subsidiaries; provided that (i) such Liens do not at any time
encumber any property other than the property financed by such Debt and the
Proceeds thereof, (ii) the Debt secured thereby does not exceed the lesser
of the cost or fair market value of the property being acquired or financed on
the date of acquisition or financing, and (iii) in the case of purchase
money security interests, such security interests are created within 120 days
after such acquisition (or completion of such improvements);


 


(f)                                    rights of set-off
of banks and other Persons in the ordinary course of banking and trading
arrangements;


 


(g)                                 Liens in favor of the
Secured Counterparties and Sowood which are subject to the Intercreditor
Agreement, to the extent such Liens in favor of the Secured Counterparties are
permitted by Section 6.26(a);


 


(h)                                 security interests (i) in
inventory held by and granted to an LDC in the ordinary course of business and (ii) in
accounts purchased and collected by and granted to an LDC that has agreed to
make payment to the Borrowers or one of their Subsidiaries for such accounts in
the ordinary course of business; and


 


(i)                                     other Liens
securing obligations, actual or contingent, in an aggregate amount not greater
than $200,000.00 at any time.


 


Section 6.02                                Debts,
Guaranties and Other Obligations. 
Create, assume, suffer to exist or in any manner become or be liable, in
respect of any Debt except:


 


(a)                                  Debt under the Loan
Documents;


 


(b)                                 (i) Debt existing
on the Closing Date and described in Schedule 6.02,  Debt under the Sowood Documents, Debt under
the  Senior
Notes and (ii) any refinancings, extensions, renewals or replacements of such
Debt to the extent the principal amount of such Debt is not increased (it being
understood that any accrued but unpaid fees or interest added to any principal amount
shall not constitute an increase of such Debt for these purposes), neither the
final maturity nor the weighted average life to maturity of such Debt is
decreased, such Debt, if subordinated to the obligations of a Loan Party
hereunder, remains so subordinated on terms (in 


 


80

















 


their entirety) no less favorable to the Revolving Lenders and no more
restrictive on the Loan Parties than the Subordinated Indebtedness being
refinanced;


 


(c)                                  Debt of the Borrowers
to Guarantors, and of Guarantors to the Borrowers or other Guarantors; provided
that (i) such Debt is subordinated to the Obligations pursuant to a
subordination agreement in form and substance reasonably acceptable to the
Administrative Agent; and (ii) any such loans and advances made by a Loan
Party shall be evidenced by a promissory note pledged to the Administrative
Agent for the benefit of the Secured Parties;


 


(d)                                 Guarantees of the
Parent or any Wholly-Owned Subsidiary in respect of Debt or other obligations
otherwise permitted hereunder of the Parent or any Wholly-Owned Subsidiary;


 


(e)                                  (i) Debt
incurred to finance the acquisition, construction or improvement of any fixed
or capital assets and (ii) Debt in respect of Capital Leases and Synthetic
Lease Obligations and extensions, renewals and replacements of any such Debt
that do not increase the outstanding principal amount thereof; provided that (i) in
the case of Debt to finance the acquisition, construction or improvements of
fixed or capital assets, such Debt is incurred prior to or within 120 days
after such acquisition or the completion of such construction or improvement
and (ii) the aggregate principal amount of Debt permitted by this
paragraph shall not exceed $4,000,000.00 at any time outstanding;


 


(f)                                    obligations
(contingent or otherwise) of any Borrower or any Wholly-Owned Subsidiary
existing or arising under any Swap Contract, provided that such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by
such Person, and not for purposes of speculation or taking a “market view”; and


 


(g)                                 unsecured Debt in an
aggregate principal amount not to exceed $2,000,000.00 at any time outstanding.


 


Section 6.03                                Merger
or Consolidation.  Merge, dissolve,
liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except that, so long as no Default exists or would result therefrom:


 


(a)                                  any Subsidiary may
merge with (i) a Borrower or the Parent, provided that such
Borrower or the Parent, as the case may be, shall be the continuing or
surviving Person, or (ii) any one or more other Wholly-Owned Subsidiaries,
provided that when any Guarantor is merging with another Wholly-Owned
Subsidiary, the Guarantor shall be the continuing or surviving Person and when
any Wholly-Owned Subsidiary is merging with another Subsidiary, the
Wholly-Owned Subsidiary shall be the continuing or surviving Person; and


 


(b)                                 any Subsidiary may
Dispose of all or substantially all of its assets (upon voluntary liquidation
or otherwise) to the Parent, any Borrower or to another Wholly-Owned
Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must either be a Borrower or a Guarantor.


 


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Section 6.04                                Asset
Sales.  Make any Asset Disposition or
enter into any agreement to make any Asset Disposition, except:


 


(a)                                  Asset Dispositions of
equipment or real property to the extent that (i) Asset Disposition is in
the ordinary course of business and (ii) (x) such property is
exchanged for credit against the purchase price of similar replacement property
or (y) the proceeds of such Disposition are reasonably promptly applied to
the purchase price of such replacement property;


 


(b)                                 Asset Dispositions of
property by the Parent or any Wholly-Owned Subsidiary to the Parent or to a
Wholly-Owned Subsidiary in the ordinary course of business; provided
that if the transferor of such property is a Guarantor, the transferee thereof
must either be a Borrower or a Guarantor; and


 


(c)                                  Asset Dispositions by
the Parent and its Wholly-Owned Subsidiaries to any Person that is not a Loan
Party or a Subsidiary of any Loan Party not otherwise permitted under this Section 6.04;
provided that (i) at the time of such Disposition, no Default or
Event of Default shall exist or would result from such Disposition and (ii) the
aggregate book value of all property Disposed of in reliance on this clause (c) in
any fiscal year shall not exceed $1,000,000.00 (or the equivalent in any other
currency); and


 


(d)                                 Asset Dispositions
permitted by Section 6.03, Investments permitted by Section 6.05
and Restricted Payments permitted by Section 6.06.


 


Section 6.05                                Investments
and Acquisitions.  Make any
Investments or Acquisitions except:


 


(a)                                  Investments held by
any Loan Party in the form of Cash Equivalents;


 


(b)                                 Existing Investments
in Subsidiaries and other Investments in existence on the Closing Date and
described in Schedule 6.05;


 


(c)                                  advances to officers,
directors and employees of the Parent and Wholly-Owned Subsidiaries in an
aggregate amount not to exceed $500,000.00 at any time outstanding, for travel,
entertainment, relocation and analogous ordinary business purposes;


 


(d)                                 Investments of a Loan
Party in another Loan Party;


 


(e)                                  Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


 


(f)                                    Guarantees
permitted by Section 6.02;


 


(g)                                 Investments in
newly-formed Subsidiaries that become Guarantors pursuant to Section 5.10;


 


(h)                                 Investments under Swap
Contracts permitted under Section 6.02(f);


 


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(i)                                     Acquisition of
certain customer accounts from (a) Commerce Energy, Inc. and (b) Catalyst
Natural Gas, LLC, which acquisitions shall not exceed $100,000.00 in the
aggregate so long as both before and after giving effect to such acquisition,
no Default or Event of Default exists or will exist or would result therefrom;
and


 


(j)                                     other Investments
not exceeding $1,000,000.00 in the aggregate in any fiscal year of the Parent.


 


Section 6.06                                Restricted
Payments.  Declare or make, directly
or indirectly, any Restricted Payment or defease, redeem, repurchase, retire or
acquire the notes issued under the Senior Notes or incur any obligation
(contingent or otherwise) to do so, except that:


 


(a)                                  each Wholly-Owned
Subsidiary of the Parent may make Restricted Payments to any other Wholly-Owned
Subsidiary or the Parent;


 


(b)                                 the Parent may declare
and make dividend payments or other distributions payable to the holders of its
Equity Interests solely in the common stock or other common equity interests of
such Person;


 


(c)                                  the Parent may (i) purchase,
redeem or otherwise acquire shares of its common stock or other common equity
interests or warrants or options to acquire any such shares held by any current
or former officer, director or employee (or their assigns, heirs or estates); provided
that the aggregate price paid for all such purchases, redemptions or
acquisitions shall not exceed $2,000,000.00 in any twelve month period and (ii) repurchase
Equity Interests deemed to occur upon the exercise of stock options or warrants
to the extent such Equity Interests represent a portion of the exercise price
of those options or warrants or corresponding statutory withholding taxes due
in connection with such exercise;


 


(d)                                 the Parent may
purchase, redeem or otherwise acquire shares of its stock or other equity
interests or warrants or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its stock or
other equity interests;


 


(e)                                  the Parent or any of
its Subsidiaries may pay management, consulting, advisory fees, and other
transactions fees to (i) Greenhill Capital Partners pursuant to the agreements
listed on the attached Schedule 6.08 in the amounts set forth in such
agreements and (ii) its Affiliates in the ordinary course of business not
to exceed $500,000.00 (not including legal fees and expenses) in any fiscal
year; and


 


(f)                                    any payments
permitted under Section 6.14 may be made.


 


Section 6.07                                Change
in Nature of Business.  Engage in any
line of business substantially different from those lines of business conducted
by the Parent and its Subsidiaries on the Closing Date or any business substantially
related or incidental thereto.


 


Section 6.08                                Transactions
With Affiliates. Enter into any transaction of any kind with any Affiliate
of the Parent, whether or not in the ordinary course of business, including,
without limitation, any payment by the Parent or any of its Wholly-Owned
Subsidiaries of any management, consulting or similar fees to any Affiliate,
whether pursuant to a management 


 


83

















 


agreement or otherwise, other than on fair and reasonable terms
substantially as favorable or more favorable to the Parent or such Subsidiary
as would be obtainable by the Parent or such Subsidiary at the time in a
comparable arm’s length transaction with a Person other than an Affiliate,
other than (a) transactions between Loan Parties, (b) employment
agreements entered into the ordinary course of business, (c) the issuance
of equity securities, (d) Restricted Payments and Investments permitted by
this Agreement, (e) otherwise expressly provided for in this Agreement, (f) pursuant
to arrangements existing on the Closing Date and set forth on Schedule 6.08,
and (g) the making of the Bridge Loans pursuant to the terms of this
Agreement and performance of the Loan Parties’ obligations under any of the
Loan Documents.


 


Section 6.09                                Agreements
Restricting Liens and Distributions. 
Create or otherwise cause or suffer to exist any prohibition,
encumbrance or restriction which prohibits or otherwise (a) restricts the
ability (i) of any Subsidiary to make Restricted Payments to any Loan
Party or to otherwise transfer property to any Loan Party, (ii) of any
Subsidiary to Guarantee the Debt of any Loan Party, or (iii) of the Parent
or any Subsidiary to create, incur, assume or suffer to exist Liens on property
of such Person; provided, however, that the preceding
restrictions shall not apply to prohibitions, encumbrances or restrictions
under or by reason of: (A) agreements or instruments governing Debt set
forth on Schedule 6.09 and any amendments or other modifications thereto
(including any refinancing thereof); provided that such amendments or
modifications are no more restrictive, taken as a whole, with respect to such
prohibition, encumbrance or restriction than those contained in those
agreements as in effect on the Closing Date, (B) applicable law, rule,
regulation or order, (C) customary non-assignment provisions in contracts,
leases, real property licenses entered into in the ordinary course of business
or (D) (with respect to clause (iii) only), any negative pledge
incurred or provided in favor of any holder of Debt permitted under Section 6.02(e) solely
to the extent any such negative pledge relates to the Property financed by or
the subject of such Debt; or (b) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of
such Person.


 


Section 6.10                                Limitation
on Accounting Changes or Changes in Fiscal Periods.  Permit (a) any change in any of its
accounting policies affecting the presentation of financial statements or
reporting practices, except as required or permitted by GAAP or (b) the
fiscal year of the Parent or any of its Subsidiaries to end on a day other than
June 30 or change the Parent’s method of determining fiscal quarters.


 


Section 6.11                                Limitation
on Speculative Hedging.  (a) Purchase,
assume, or hold a speculative position in any commodities market or futures
market or enter into any Swap Contract for speculative purposes, (b) be
party to or otherwise enter into any Swap Contract which (i) is entered
into for reasons other than as a part of its normal business operations as a
risk management strategy and/or hedge against changes resulting from market
conditions related to the Borrowers’ or their Subsidiaries’ operations, (ii) is
longer than three years in duration, or (iii) obligates any Loan Party to
any margin call requirements not permitted under this Agreement, or (c) materially
change its Risk Management Policy without the Majority Lenders’ prior written
consent.


 


84
















 


Section 6.12                                Operating
Leases. Enter into or remain liable upon any Operating Lease, except for
Operating Leases which have Operating Lease Obligations of not more than
$2,000,000.00 at any one time outstanding.


 


Section 6.13                                Sale
and Leaseback Transactions and other Off-Balance Sheet Liabilities.  Enter into or suffer to exist any (a) Sale
and Leaseback Transaction or (b) any other transaction pursuant to which
it incurs or has incurred Off-Balance Sheet Liabilities, except for Swap
Contracts permitted to be incurred under the terms of Section 6.02.


 


Section 6.14                                Subordinated
Debt and Bridge Loans.


 


(a)                                  Except as expressly
permitted in Section 2 of the Intercreditor Agreement: (i) make any
optional, mandatory or scheduled payments on account of principal or interest
(whether by redemption, purchase, retirement, defeasance, set-off or otherwise)
in respect of Subordinated Indebtedness; or (ii) permit any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which any Subordinated Indebtedness is
outstanding if such waiver, supplement, modification, amendment, termination or
release would (A) increase the maximum principal amount of such
Subordinated Indebtedness or the ordinary interest rate or the default interest
rate on such Subordinated Indebtedness; (B) change the dates upon which
payments of principal or interest are due on such Subordinated Indebtedness; (C) change
any event of default or add any covenant with respect to such Subordinated
Indebtedness; (D) change the payment, redemption or prepayment provisions
of such Subordinated Indebtedness; (E) change the subordination provisions
thereof; or (F) change or amend any other term if such change or amendment
would materially increase the obligations of the obligor or confer additional
material rights on the holder of such Subordinated Indebtedness in a manner
adverse to any Loan Party or any Secured Party.


 


(b)                                 Make any payment of
principal, interest, or other amounts in respect of the Bridge Obligations
prior to the occurrence of the Revolving Termination Date other than:


 


(i)                                     payments
of upfront fees to the Bridge Lenders in an aggregate amount not to exceed
$208,000.00 made on the Closing Date;


 


(ii)                                  payments
in kind of interest (including the Minimum Amount of Charter Interest and the
Minimum Amount of Other Bridge Lenders’ Interest) on the Bridge Loans, provided
that such amounts paid in kind are subject to the same limitations on repayment
as the principal of such Bridge Loans;


 


(iii)                               cash
payments made on or after April 6, 2009 of the Bridge Obligations in
respect of Charter Bridge Loans in a principal amount not to exceed
$5,000,000.00 plus interest payable on such amount pursuant to Section 2.06,
including the Minimum Amount of Charter Interest, so long as and only to the
extent that (A) no Default resulting from a breach of Section 6.17
through Section 6.22 or arising under Section 7.01(a) exists
at the time of, or would result from, any such cash payment and (B) Borrowing
Base Availability is equal to or greater than $0 both before and after giving
effect to such payments (such conditions referred to in the foregoing clauses (A) and
(B) are collectively referred to as the “Bridge Obligations Payment
Conditions”);


 


85

















 


(iv)                              cash
payments made on or after April 6, 2009 of interest payable in respect of
the Other Bridge Loans pursuant to Section 2.06, so long as and
only to the extent that (A) no Default resulting from a breach of Section 6.17
through Section 6.22 or arising under Section 7.01(a) exists
at the time of, or would result from, any such cash payment and (B) Borrowing
Base Availability is equal to or greater than $0 both before and after giving
effect to such payments; and


 


(v)                                 if
any Bridge Loans are converted to preferred stock in the Parent, a conversion
fee paid to the holder of such Bridge Loans on the date of such conversion not to
exceed 2% of the outstanding principal of the Bridge Loans converted at such
time and 2% of the accrued and unpaid interest on such principal amount
pursuant to Section 2.06 (including the Minimum Amount of Charter
Interest and the Minimum Amount of Other Bridge Lenders’ Interest).


 


(c)                                  Permit any waiver,
supplement, modification, amendment, termination or release of any Bridge Note
or other agreement pursuant to which any Bridge Obligations are outstanding if
such waiver, supplement, modification, amendment, termination or release would
materially increase the obligations of the Borrowers or confer additional
material rights on the holder of such Bridge Obligations in a manner adverse to
any Loan Party, the Administrative Agent, the Issuing Bank, or any Revolving
Lender.


 


Section 6.15                                Amendment
of Material Contracts.  Amend, modify
or supplement any Material Contract, including, the Secured Counterparty
Contracts, and the Senior Notes, if such amendment, modification or supplement
would materially increase the obligations of the obligor or be materially
adverse to the interests of any Loan Party or any Secured Party.


 


Section 6.16                                Capital
Expenditures.  Make or become legally
obligated to make any Capital Expenditure in respect of the purchase or other
acquisition of any fixed or capital asset (excluding normal replacements and
maintenance which are properly charged to current operations but including
Acquisitions), except for
Capital Expenditures in the ordinary course of business not
exceeding in the aggregate for the Parent and its Subsidiaries $3,000,000.00
for each fiscal year; provided, however that the amount of permitted
Capital Expenditures in respect of any fiscal year commencing with the fiscal
year ending on June 30, 2009, shall be increased by the unused amount of
permitted Capital Expenditures for the immediately preceding fiscal year (and
in determining any such unused amount, Capital Expenditures during any fiscal
year will be applied first against any amounts carried forward from the prior
year).


 


Section 6.17                                Minimum
Consolidated Tangible Net Worth.  
Permit Consolidated Tangible Net Worth at any time to be less than the
sum of (a)(i) $25,000,000.00 during October, November, and December 2008
and January, June, and July 2009 and (ii) $30,000,000.00 during
February, March, April, and May 2009; plus (b) an amount equal
to 50% of the sum of (i) the positive year-to-date Consolidated Net Income
(plus, to the extent deducted from Consolidated Net Income, non-cash
compensation expenses) through such date and (ii) other than for the then
current fiscal year, the positive Consolidated Net Income (plus, to the extent
deducted from Consolidated Net Income, non-cash compensation expenses) for each
full fiscal year ending on and after June 30, 2009; plus (c) an
amount equal to 100% of the net proceeds from any equity issued by the Parent; plus
(d) an amount equal to any increase in Consolidated Tangible Net Worth
resulting from a conversion of Bridge Obligations to preferred stock in the
Parent, or 


 


86

















 


resulting from a conversion of such preferred stock in the Parent to
other Equity Interests in the Parent.


 


Section 6.18                                Minimum
Consolidated Working Capital.  Permit
the Consolidated Working Capital at any time to be less than $127,500,000.00.


 


Section 6.19                                Maximum
Aggregate Negative EBITDA.  Permit the
negative Consolidated EBITDA to be less than (a) ($5,000,000.00) during the
consecutive three-month period ending September 30, 2008; (b) ($3,000,000.00)
during the consecutive three-month period ending October 31, 2008; and (c) ($2,000,000.00)
during any consecutive three-month period ending thereafter, in each case
beginning with the first full month before any day on which the Borrowing Base
Availability is less than $30,000,000.00 and continuing for each consecutive three-month
period thereafter until the Borrowing Base Availability is more than
$30,000,000.00 for three consecutive months.


 


Section 6.20                                Interest
Coverage Ratio.  Permit, as of last
day of any month occurring during any period set forth below, the ratio of
Consolidated EBITDA for the twelve months then ending to Consolidated Interest
Expense for such period set forth below to be less than the ratio set forth
below opposite such period:


 


	
  Period

  	
   

  	
  Interest Coverage Ratio

  
	
  From September 1, 2008 through November 30, 2008

  	
   

  	
  1.60 to 1.00

  
	
   

  	
   

  	
   

  
	
  From December 1, 2008 through December 31, 2008

  	
   

  	
  1.50 to 1.00

  
	
   

  	
   

  	
   

  
	
  From January 1, 2009 through the Maturity Date

  	
   

  	
  1.35 to 1.00

  



 


Section 6.21                                Average
Leverage Ratio.  Permit the Leverage
Ratio at any time during the relevant period set forth below to be greater than
the ratio set forth below opposite such period:


 


	
  Relevant Period

  	
   

  	
  Maximum

  Leverage Ratio

  
	
  From September 1, 2008 through
  September 30, 2008

  	
   

  	
  4.50 to 1.00

  
	
   

  	
   

  	
   

  
	
  From October 1, 2008 through
  January 31, 2009

  	
   

  	
  4.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  From February 1, 2009 through the
  Maturity Date

  	
   

  	
  3.75 to 1.00

  



 


Section 6.22                                Monthly
Leverage Ratio.  Permit the Leverage
Ratio at any time at the end of each month to be greater than 4.50 to 1.00.


 


87

















 


Section 6.23                                Minimum
Borrowing Base Availability.  Permit
Borrowing Base Availability to be less than $10,000,000.00 at any time on or
after April 30, 2009.


 


Section 6.24                                Minimum
Cash Requirement.  Permit cash on
hand, minus the aggregate amount of Revolving Advances and Bridge Loans
outstanding at such time, to be less than $40,000,000.00 at any time on or
after April 30, 2009.


 


Section 6.25                                Payment
of Management Bonuses and Board Fees. 
Pay any bonus to any member of senior management listed on a schedule
provided to the Administrative Agent on or before the Closing Date, or pay any
board fee, or make any similar payment, until after the Revolving Termination
Date; provided that the Borrowers may pay customary board fees to
Michael Hamilton in an amount not to exceed $12,500.00 per fiscal quarter.


 


Section 6.26                                No
Additional Support to Secured Counterparties.


 


(a)                                  Provide any cash
collateral to the Secured Parties, or permit to exist any Lien in its assets in
favor of the Secured Counterparties, in each case in excess of what is required
under the Master Transaction Agreement as in effect as of the Closing Date; provided
that the aggregate value of the cash collateral subject to Liens in favor of
the Secured Counterparties shall not exceed $35,000,000.00 when combined with
the outstanding face amount of any Letters of Credit or other support permitted
by Section 6.26(b);


 


(b)                                 post any additional
Letter of Credit or other support, or increase the face amount or value of any
existing Letter of Credit or other support, in each case in support of
obligations owing to the Secured Counterparties, in excess of what is required
under the Master Transaction Agreement as in effect as of the Closing Date; provided
that the aggregate face amount of Letters of Credit or other support for
obligations owing to the Secured Counterparties shall not exceed $35,000,000.00
when combined with the value of the collateral subject to a Lien permitted by Section 6.26(a);
or


 


(c)                                  provide any
additional guarantees of payment, or increase any existing guarantees of
payment, to the Secured Counterparties after the Closing Date.


 


ARTICLE VII


 


EVENTS OF DEFAULT


 


Section 7.01                                Events
of Default.  The occurrence of any of
the following events shall constitute an “Event of Default” under any Loan
Document:


 


(a)                                  Payment.  Any Borrower shall fail to pay (i) any
principal of any Revolving Advance or Bridge Loan (including, without
limitation, any mandatory prepayment required by Section 2.07) or
reimburse any drawing under any Letter of Credit when the same becomes due and
payable (it being understood that the failure to make a payment to any Bridge
Lender as a result of the failure to satisfy a condition in Section 6.14
shall not be a Default or an Event of Default), or (ii) any interest on
the Revolving Advances or Bridge Loans, any fees, reimbursements,
indemnifications, or other amounts payable in connection with the Obligations,


 


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this Agreement or under any other Loan Document within three Business
Days after the same becomes due and payable;


 


(b)                                 Representation and
Warranties.  Any representation or
statement made or deemed to be made by any Borrower or any other Loan
Party (or any of their respective officers) in this Agreement, in any other
Loan Document, or in connection with this Agreement or any other Loan Document
shall prove to have been incorrect in any material respect when made or deemed
to be made;


 


(c)                                  Covenant Breaches.  Any Loan Party shall (i) fail to perform
or observe any covenant contained in Section 5.01, 5.07(a), 5.09,
5.11, 5.12, 5.17, or Article VI, or (ii) fail
to perform or observe any covenant contained in Section 5.06(e), 5.06(k),
5.06(l), or 5.16 if such failure shall remain unremedied for five
Business Days, or (iii) fail to perform or observe any other term or
covenant set forth in this Agreement or in any other Loan Document which is not
covered by clause (i) or clause (ii) above or any other
provision of this Section 7.01 if such failure shall remain
unremedied for 30 days;


 


(d)                                 Cross-Default.  (i)  Any Loan Party shall fail to pay
any principal of or premium or interest on any of its Debt which, individually
or in the aggregate, is outstanding in a principal amount of at least
$5,000,000.00 (or the equivalent in any other currency) individually or when
aggregated with all such Debt of the Person so in default (but excluding Debt
evidenced by the Revolving Advances and Bridge Loans) when the same becomes due
and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), (ii) any other event shall occur or condition shall
exist under any agreement or instrument relating to Debt which is outstanding
in a principal amount of at least $5,000,000.00 (or the equivalent in any other
currency) individually or when aggregated with all such Debt of the Person so
in default (but excluding Debt evidenced by the Revolving Advances and the
Bridge Loans), if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or (iii) any such
Debt shall be declared to be due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment), prior to the stated
maturity thereof;


 


(e)                                  Insolvency.  Any Loan Party shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, commences negotiations with one or more of its creditors
with a view to rescheduling any of its indebtedness which it would not
otherwise be able to pay as it falls due or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Parent or any of its Subsidiaries seeking to adjudicate it as a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver, trustee
or other similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against such Person, either
such proceeding shall remain undismissed for a period of 60 days or any of the
actions sought in such proceeding shall occur; or such Person shall take any
action to authorize any of the actions set forth above in this paragraph (e) or
any analogous procedure or step is taken in any jurisdiction.


 


(f)                                    Judgments.  Any judgment, decree or order for the payment
of money shall be rendered against any Loan Party in an amount in excess of
$2,500,000.00 (or the equivalent in 


 


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any other currency) and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;


 


(g)                                 ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of a Loan Party under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $5,000,000.00, or (ii) the Parent or any ERISA Affiliate fails
to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of
$5,000,000.00; or


 


(h)                                 Loan Documents.  Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any Loan Document; or any Loan Party denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or


 


(i)                                     Security
Documents.  The Administrative Agent
on behalf of the Secured Parties shall fail to have an Acceptable Security
Interest in a material portion of the Collateral;


 


(j)                                     Material
Contracts.  There shall have been a
termination or cancellation of, or a default that would permit the termination
or cancellation of, any Material Contract and such termination or cancellation
could reasonably be expected to have a Material Adverse Effect; or


 


(k)                                  Change in Control.  A Change of Control shall occur;


 


(l)                                     Secured
Counterparty Event. A Secured Counterparty Event shall occur; or


 


(m)                               Trigger Event.  A Trigger Event shall occur.


 


Section 7.02                                Optional
Acceleration of Maturity.  If any
Event of Default (other than an Event of Default pursuant to paragraph (e) of
Section 7.01) shall have occurred and be continuing, then, and in
any such event:


 


(a)                                  the Administrative
Agent (i) shall at the request, or may with the consent, of the Majority
Lenders, by notice to the Borrowers, declare the Revolving Commitments and the
obligation of each Lender and the Issuing Bank to make extensions of credit
hereunder, including making Revolving Advances and issuing Letters of Credit,
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Majority Lenders, by notice to
the Borrowers, declare all principal, interest, fees, reimbursements,
indemnifications, and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon all such
amounts shall become and be forthwith due and payable in full, subject to Section 7.06,
without notice of intent to demand, demand, presentment for payment, notice of
nonpayment, protest, notice of protest, 


 


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grace, notice of dishonor, notice of intent to accelerate, notice of
acceleration, and all other notices, all of which are hereby expressly waived
by each Borrower;


 


(b)                                 each Borrower shall,
on demand of the Administrative Agent at the request or with the consent of the
Majority Lenders, deposit with the Administrative Agent into the LC Cash
Collateral Account an amount of cash in Dollars equal to 105% of the
outstanding Letter of Credit Exposure as security for the Obligations to the
extent the Letter of Credit Obligations are not otherwise paid at such time;
and


 


(c)                                  the Administrative
Agent shall at the request of, or may with the consent of, the Majority Lenders
proceed to enforce its rights and remedies under the Security Documents, this
Agreement, and any other Loan Document for the benefit of the Lenders by
appropriate proceedings.


 


Section 7.03                                Automatic
Acceleration of Maturity.  If any
Event of Default pursuant to paragraph (e) of Section 7.01
shall occur:


 


(a)                                  (i) the
Revolving Commitments and the obligation of each Lender and the Issuing Bank to
make extensions of credit hereunder, including making Revolving Advances and
issuing Letters of Credit, shall terminate, and (ii) all principal,
interest, fees, reimbursements, indemnifications, and all other amounts payable
under this Agreement and the other Loan Documents shall become and be forthwith
due and payable in full, subject to Section 7.06, without notice of
intent to demand, demand, presentment for payment, notice of nonpayment, protest,
notice of protest, grace, notice of dishonor, notice of intent to accelerate,
notice of acceleration, and all other notices, all of which are hereby expressly
waived by each Borrower;


 


(b)                                 each Borrower shall
deposit with the Administrative Agent into the LC Cash Collateral Account an
amount of cash in Dollars equal to 105% of the outstanding Letter of Credit
Exposure as security for the Obligations to the extent the Letter of Credit
Obligations are not otherwise paid at such time; and


 


(c)                                  the Administrative
Agent shall at the request of, or may with the consent of, the Majority Lenders
proceed to enforce its rights and remedies under the Security Documents, this
Agreement, and any other Loan Document for the benefit of the Lenders by
appropriate proceedings.


 


Section 7.04                                Non-exclusivity
of Remedies.  No remedy conferred
upon the Administrative Agent, the Issuing Bank and the Lenders is intended to
be exclusive of any other remedy, and each remedy shall be cumulative of all
other remedies existing by contract, at law, in equity, by statute or
otherwise.


 


Section 7.05                                Right
of Set-off.  If an Event of Default
shall have occurred and be continuing, each Lender, the Issuing Bank, and each
of their respective Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by applicable law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the Issuing Bank or any
such Affiliate to or for the credit or the account of any Loan Party against
any and all of the obligations of such Loan Party now or hereafter 


 


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existing under this Agreement or any other Loan Document to such Lender
or the Issuing Bank, irrespective of whether or not such Lender or the Issuing
Bank shall have made any demand under this Agreement or any other Loan Document
and although such obligations of such Loan Party may be contingent or unmatured
or are owed to a branch or office of such Lender or the Issuing Bank different
from the branch or office holding such deposit or obligated on such
indebtedness.  The rights of each Lender,
the Issuing Bank and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that
such Lender, the Issuing Bank or their respective Affiliates may have.  Each Lender and the Issuing Bank agrees (a) to
notify the Parent and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect
the validity of such setoff and application and (b) that payments received
by means of set-off pursuant to this Section are subject to Section 2.12.


 


Section 7.06                                Application
of Proceeds.  From and during the
continuance of any Event of Default, any monies or property actually received
by the Administrative Agent pursuant to this Agreement or any other Loan
Document, the exercise of any rights or remedies under any Security Document or
any other agreement with any Loan Party which secures any of the Obligations,
shall be applied in the following order:


 


(a)                                  First, to
payment of the reasonable expenses, liabilities, losses, costs, duties, fees,
charges or other moneys whatsoever (together with interest payable thereon) as
may have been paid or incurred in, about or incidental to any sale or other
realization of Collateral, including reasonable compensation to the
Administrative Agent and its agents and counsel, and to the ratable payment of
any other unreimbursed reasonable expenses and indemnities for which the
Administrative Agent or any Secured Party (other than a Bridge Lender) is to be
reimbursed pursuant to this Agreement or any other Loan Document, in each case
that are then due and payable;


 


(b)                                 Second, to the
ratable payment of accrued but unpaid fees of the Administrative Agent,
commitment fees, letter of credit fees, and fronting fees owing to the
Administrative Agent, the Issuing Bank, and the Revolving Lenders in respect of
the Revolving Advances, and Letters of Credit under this Agreement;


 


(c)                                  Third, to the
ratable payment of accrued but unpaid interest on the Revolving Advances then
due and payable under this Agreement;


 


(d)                                 Fourth,
ratably, according to the then unpaid amounts thereof, without preference or
priority of any kind among them, to the ratable payment of (or, in the case of
Revolving Obligations which relate to outstanding Letters of Credit, cash
collateralization of) all other Revolving Obligations then due and payable (or,
in the case of Revolving Obligations which relate to outstanding Letters of
Credit, then outstanding) which relate to Revolving Advances and Letters of
Credit and which are owing to the Administrative Agent, the Issuing Bank and
the Revolving Lenders;


 


(e)                                  Fifth,
ratably, according to the unpaid termination amounts thereof, to the payment of
all obligations of any Borrower or its Subsidiaries owing to any Swap
Counterparty under any Swap Contract, if any, then due and payable;


 


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(f)                                    Sixth, to
the ratable payment of any other outstanding Revolving Obligations then due and
payable, including reimbursable expenses and indemnitee obligations;


 


(g)                                 Seventh, to the
ratable payment of any other unreimbursed reasonable expenses and indemnities
for which any Bridge Lender is to be reimbursed pursuant to this Agreement or
any other Loan Document, in each case that are then due and payable;


 


(h)                                 Eighth, to the
ratable payment of accrued but unpaid interest on the Bridge Loans then due and
payable under this Agreement;


 


(i)                                     Ninth, ratably,
according to the then unpaid amounts thereof, without preference or priority of
any kind among them, to the ratable payment of all other Bridge Obligations
then due and payable which relate to Bridge Loans and which are owing to the
Bridge Lenders;


 


(j)                                     Tenth, to
the ratable payment of any other outstanding Bridge Obligations then due and
payable; and


 


(k)                                  Eleventh, any
excess after payment in full of all Obligations shall be paid to the Parent or
any other Loan Party as appropriate or to such other Person who may be lawfully
entitled to receive such excess.


 


Section 7.07                                Administrative
Agent’s Account.  The Borrowers and
the Administrative Agent shall establish a Collateral Account and each Borrower
shall execute any documents and agreements, including the Administrative Agent’s
standard form assignment of deposit accounts, that the Administrative Agent
reasonably requests in connection therewith to establish the Collateral Account
and grant the Administrative Agent an Acceptable Security Interest in such
account and the funds therein.  Each
Borrower hereby pledges to the Administrative Agent and grants the
Administrative Agent a security interest in the Collateral Account, all funds
held therein from time to time, and all proceeds thereof as security for the
payment of the Obligations.  Funds held
in the Collateral Account shall be held as cash collateral for the Obligations
and promptly applied by the Administrative Agent to any outstanding Obligations
pursuant to Section 7.06. 
After the occurrence and continuance of an Event of Default, funds held
in the Collateral Account shall be held as cash collateral for the Obligations
and promptly applied by the Administrative Agent to any outstanding Obligations
that exist or occur.  Provided that no
Default or Event of Default has occurred and is continuing, to the extent that
any surplus funds are held in the Collateral Account above the sum of the
outstanding Revolving Advances, Letter of Credit Exposure, and Bridge Loans,
the Administrative Agent may release to the Borrowers at either Borrower’s
written request any funds held in the Collateral Account.  The Administrative Agent shall exercise
reasonable care in the custody and preservation of any funds held in the
Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the
Administrative Agent accords its own property, it being understood that the
Administrative Agent shall not have any responsibility for taking any necessary
steps to preserve rights against any parties with respect to any such
funds.  Funds held in the Administrative
Agent’s Account shall be invested in Cash Equivalents maintained with, and
under the sole dominion and control of, the Administrative Agent or in another
investment if mutually agreed upon by the Borrowers and the Administrative
Agent, but the Administrative Agent shall have no other obligation to make any
other investment of the funds therein. 
The Administrative Agent shall exercise reasonable care in the custody
and 


 


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preservation of any funds held in the Administrative Agent’s Account
and shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Administrative Agent
accords its own property, it being understood that the Administrative Agent
shall not have any responsibility for taking any necessary steps to preserve
rights against any parties with respect to any such funds.


 


ARTICLE VIII


 


THE GUARANTY


 


Section 8.01                                Liabilities
Guaranteed. Each Guarantor hereby, jointly and severally, irrevocably and
unconditionally guarantees the prompt payment at maturity of the Obligations.


 


Section 8.02                                Nature
of Guaranty. This guaranty is an absolute, irrevocable, completed and
continuing guaranty of payment and not a guaranty of collection, and no notice
of the Obligations or any extension of credit already or hereafter contracted
by or extended to any Borrower need be given to any Guarantor. This guaranty
may not be revoked by any Guarantor and shall continue to be effective with
respect to the Obligations arising or created after any attempted revocation by
such Guarantor and shall remain in full force and effect until the Obligations
are paid in full and the Commitments are terminated, notwithstanding that from
time to time prior thereto no Obligations may be outstanding. The Borrowers and
the Lenders may modify, alter, rearrange, extend for any period and/or renew
from time to time, the Obligations, and the Lenders may waive any Default or
Events of Default without notice to any Guarantor and in such event each
Guarantor will remain fully bound hereunder on the Obligations. This guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of the Obligations is rescinded or must otherwise be returned
by any of the Lenders upon the insolvency, bankruptcy or reorganization of any
Borrower or otherwise, all as though such payment had not been made.  This guaranty may be enforced by the
Administrative Agent and any subsequent holder of any of the Obligations and
shall not be discharged by the assignment or negotiation of all or part of the
Obligations. Each Guarantor hereby expressly waives presentment, demand, notice
of non-payment, protest and notice of protest and dishonor, notice of Default
or Event of Default, and also notice of acceptance of this guaranty, acceptance
on the part of the Lenders being conclusively presumed by the Lenders’ request
for this guaranty and the Guarantors’ being party to this Agreement.


 


Section 8.03                                Agent’s
Rights. Each Guarantor authorizes the Administrative Agent, without notice
or demand and without affecting any Guarantor’s liability hereunder, to take
and hold security for the payment of its obligations under this Article VIII
and/or the Obligations, and exchange, enforce, waive and release any such
security; and to apply such security and direct the order or manner of sale
thereof as the Administrative Agent in its discretion may determine, and to
obtain a guaranty of the Obligations from any one or more Persons and at any
time or times to enforce, waive, rearrange, modify, limit or release any of
such other Persons from their obligations under such guaranties.


 


Section 8.04                                Guarantor’s
Waivers.


 


(a)                                  General. Each
Guarantor waives any right to require any of the Lenders to (i) proceed
against either Borrower or any other person liable on the Obligations, (ii) enforce
any of 


 


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their rights against any other guarantor of the Obligations, (iii) proceed
or enforce any of their rights against or exhaust any security given to secure
the Obligations, (iv) have either Borrower joined with any Guarantor in
any suit arising out of this Article VIII and/or the Obligations,
or (v) pursue any other remedy in the Lenders’ powers whatsoever. It is
agreed between the Guarantors and the Lenders that the foregoing waivers are of
the essence of the transaction contemplated by this Agreement and the other
Loan Documents and that, but for this Guaranty and such waivers, the Lenders
would not extend or continue to extend credit under this Agreement. The Lenders
shall not be required to mitigate damages or take any action to reduce, collect
or enforce the Obligations. Each Guarantor waives any defense arising by reason
of any disability, lack of corporate authority or power, or other defense of
any Borrower or any other guarantor of the Obligations, and shall remain liable
hereon regardless of whether any Borrower or any other guarantor be found not
liable thereon for any reason. Whether and when to exercise any of the remedies
of the Lenders under any of the Loan Documents shall be in the sole and
absolute discretion of the Administrative Agent, and no delay by the
Administrative Agent in enforcing any remedy, including delay in conducting a
foreclosure sale, shall be a defense to any Guarantor’s liability under this Article VIII.


 


(b)                                 Marshalling, etc.  In addition to the waivers contained in Section 8.04(a) hereof,
the Guarantors waive, and agree that they shall not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of,
any appraisal, valuation, stay, extension, marshaling of assets or redemption laws,
or exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by the Guarantors of their
obligations under, or the enforcement by the Administrative Agent or the
Lenders of, this Guaranty.  The
Guarantors hereby waive diligence, presentment and demand (whether for
nonpayment or protest or of acceptance, maturity, extension of time, change in
nature or form of the Obligations, acceptance of further security, release of
further security, composition or agreement arrived at as to the amount of, or
the terms of, the Obligations, notice of adverse change in the Borrowers’
financial condition or any other fact which might materially increase the risk
to the Guarantors) with respect to any of the Obligations or all other demands
whatsoever and waive the benefit of all provisions of law which are or might be
in conflict with the terms of this Article VIII.  The Guarantors, jointly and severally,
represent, warrant and agree that, as of the date of this Guaranty, their
obligations under this Guaranty are not subject to any offsets or defenses of
any kind against the Administrative Agent, the Lenders, the Borrowers or any
other Person that executes a Loan Document. 
The Guarantors further jointly and severally agree that their
obligations under this Guaranty shall not be subject to any counterclaims,
offsets or defenses of any kind which may arise in the future against the
Administrative Agent, the Lenders, the Borrowers or any other Person that
executes a Loan Document.


 


(c)                                  Subrogation.
Until the Obligations have been paid in full, each Guarantor waives all rights
of subrogation or reimbursement against the Borrowers, whether arising by
contract or operation of law (including, without limitation, any such right
arising under any federal, state or other applicable bankruptcy or insolvency
laws) and waives any right to enforce any remedy which the Lenders now have or
may hereafter have against any Borrower, and waives any benefit or any right to
participate in any security now or hereafter held by the Administrative Agent
or any Lender.


 


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Section 8.05                                Maturity
of Obligations, Payment. Each Guarantor agrees that if the maturity of any
of the Obligations is accelerated by bankruptcy or otherwise, such maturity
shall also be deemed accelerated for the purpose of this Article VIII
without demand or notice to any Guarantor. Each Guarantor will, forthwith upon
notice from the Administrative Agent, jointly and severally pay to the
Administrative Agent the amount due and unpaid by the Borrowers and guaranteed
hereby. The failure of the Administrative Agent to give this notice shall not
in any way release any Guarantor hereunder.


 


Section 8.06                                Agent’s
Expenses. If any Guarantor fails to pay the Obligations after notice from
the Administrative Agent of any Borrower’s failure to pay any Obligations at maturity,
and if the Administrative Agent obtains the services of an attorney for
collection of amounts owing by any Guarantor hereunder, or obtaining advice of
counsel in respect of any of their rights under this Article VIII,
or if suit is filed to enforce this Article VIII, or if proceedings
are had in any bankruptcy, probate, receivership or other judicial proceedings
for the establishment or collection of any amount owing by any Guarantor
hereunder, or if any amount owing by any Guarantor hereunder is collected
through such proceedings, each Guarantor jointly and severally agrees to pay to
the Administrative Agent the Administrative Agent’s reasonable attorneys’ fees.


 


Section 8.07                                Liability.  It is expressly agreed that the liability of
each Guarantor for the payment of the Obligations guaranteed hereby shall be
primary and not secondary.


 


Section 8.08                                Events
and Circumstances Not Reducing or Discharging any Guarantor’s Obligations.
Each Guarantor hereby consents and agrees to each of the following to the
fullest extent permitted by law, and agrees that each Guarantor’s obligations
under this Article VIII shall not be released, diminished,
impaired, reduced or adversely affected by any of the following, and waives any
rights (including without limitation rights to notice) which each Guarantor
might otherwise have as a result of or in connection with any of the following:


 


(a)                                  Modifications, etc.
Any renewal, extension, modification, increase, decrease, alteration or
rearrangement of all or any part of the Obligations, or this Agreement or any
instrument executed in connection therewith, or any contract or understanding
between any Borrower and any of the Lenders, or any other Person, pertaining to
the Obligations, or the waiver or consent by the Administrative Agent or the
Lenders with respect to any of the provisions hereof or thereof, or any
modification or termination of the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors against any Guarantor or
Borrower are subordinated to the claims of the Lenders or pursuant to which the
Obligations are subordinated to claims of other creditors;


 


(b)                                 Adjustment, etc.
Any adjustment, indulgence, forbearance or compromise that might be granted or
given by any of the Lenders to any Borrower or any Guarantor or any Person
liable on the Obligations;


 


(c)                                  Condition of any
Borrower or any Guarantor. The insolvency, bankruptcy arrangement,
adjustment, composition, liquidation, disability, dissolution, death or lack of
power of any Borrower or any other Guarantor or any other Person at any time
liable for the payment of all or part of the Obligations; or any dissolution of
any Borrower or any other Guarantor, or any sale, lease or transfer of any or
all of the assets of any Borrower or any other Guarantor, or any 


 


96

















 


changes in the shareholders, partners, or members of any Borrower or
any other Guarantor; or any reorganization of any Borrower or any other
Guarantor;


 


(d)                                 Invalidity of
Obligations. The invalidity, illegality or unenforceability of all or any
part of the Obligations, or any document or agreement executed in connection
with the Obligations, for any reason whatsoever, including without limitation
the fact that the Obligations, or any part thereof, exceed the amount permitted
by law, the act of creating the Obligations or any part thereof is ultra vires,
the officers or representatives executing the documents or otherwise creating
the Obligations acted in excess of their authority, the Obligations violate
applicable usury laws, either Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Obligations wholly
or partially uncollectible from such Borrower, the creation, performance or
repayment of the Obligations (or the execution, delivery and performance of any
document or instrument representing part of the Obligations or executed in
connection with the Obligations, or given to secure the repayment of the
Obligations) is illegal, uncollectible, legally impossible or unenforceable, or
this Agreement or other documents or instruments pertaining to the Obligations
have been forged or otherwise are irregular or not genuine or authentic;


 


(e)                                  Release of
Obligors. Any full or partial release of the liability of either Borrower
from the Obligations or any part thereof, of any co-guarantors, or any other
Person now or hereafter liable, whether directly or indirectly, jointly,
severally, or jointly and severally, to pay, perform, guarantee or assure the
payment of the Obligations or any part thereof, it being recognized,
acknowledged and agreed by any Guarantor that such Guarantor may be required to
pay the Obligations in full without assistance or support of any other Person, and
no Guarantor has been induced to enter into this Article VIII on
the basis of a contemplation, belief, understanding or agreement that other
parties other than the Borrowers will be liable to perform the Obligations, or
the Lenders will look to other parties to perform the Obligations;


 


(f)                                    Other Security.
The taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Obligations;


 


(g)                                 Release of
Collateral etc. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including without limitation
negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection with, or
assuring or securing payment of, all or any part of the Obligations;


 


(h)                                 Care and Diligence.
The failure of the Lenders or any other Person to exercise diligence or
reasonable care in the preservation, protection, enforcement, sale or other
handling or treatment of all or any part of such collateral, property or
security;


 


(i)                                     Status of Liens.
The fact that any collateral, security, security interest or lien contemplated
or intended to be given, created or granted as security for the repayment of
the Obligations shall not be properly perfected or created, or shall prove to
be unenforceable or subordinate to any other security interest or lien, it
being recognized and agreed by each Guarantor that no Guarantor is entering
into this Article VIII in reliance on, or in contemplation of the
benefits of, the validity, enforceability, collectibility or value of any of
the collateral for the Obligations;


 


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(j)                                     Payments
Rescinded. Any payment by either Borrower to the Lenders is held to
constitute a preference under the bankruptcy laws, or for any reason the
Lenders are required to refund such payment or pay such amount to the Borrowers
or someone else; or


 


(k)                                  Other Actions
Taken or Omitted.  Any other action
taken or omitted to be taken with respect to this Agreement, the Obligations,
or the security and collateral therefor, whether or not such action or omission
prejudices any Guarantor or increases the likelihood that any Guarantor will be
required to pay the Obligations pursuant to the terms hereof, it being the
unambiguous and unequivocal intention of each Guarantor that each Guarantor
shall be obligated to joint and severally pay the Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission whatsoever,
whether contemplated or uncontemplated, and whether or not otherwise or
particularly described herein, except for the full and final payment and
satisfaction of the Obligations.


 


Section 8.09                                Subordination
of All Guarantor Claims.


 


(a)                                  As used herein, the
term “Guarantor Claims” shall mean all debts and liabilities of either Borrower
or any Subsidiary of either Borrower to any Guarantor, whether such debts and
liabilities now exist or are hereafter incurred or arise, or whether the
obligation of such Borrower or such Subsidiary thereon be direct, contingent,
primary, secondary, several, joint and several, or otherwise, and irrespective
of whether such debts or liabilities be evidenced by note, contract, open
account, or otherwise, and irrespective of the person or persons in whose favor
such debts or liabilities may, at their inception, have been, or may hereafter
be created, or the manner in which they have been or may hereafter be acquired
by any Guarantor. The Guarantor Claims shall include without limitation all
rights and claims of any Guarantor against either Borrower or any Subsidiary of
either Borrower arising as a result of subrogation or otherwise as a result of
such Guarantor’s payment of all or a portion of the Obligations. Until the Obligations
shall be paid and satisfied in full, all Revolving Commitments have expired or
been terminated and all Letters of Credit have expired or been cash
collateralized on the terms set forth in this Agreement and each Guarantor
shall have performed all of its obligations hereunder, no Guarantor shall
receive or collect, directly or indirectly, from either Borrower or any
Subsidiary of either Borrower or any other party any amount upon the Guarantor
Claims.


 


(b)                                 Each Borrower and each
Guarantor hereby (i) authorizes the Administrative Agent and the Lenders
to demand specific performance of the terms of this Section 8.09,
whether or not either Borrower or any Guarantor shall have complied with any of
the provisions hereof applicable to it, at any time when it shall have failed
to comply with any provisions of this Section 8.09 which are
applicable to it and (ii) irrevocably waives any defense based on the
adequacy of a remedy at law, which might be asserted as a bar to such remedy of
specific performance.


 


(c)                                  Upon any distribution
of assets of any Loan Party in any dissolution, winding up, liquidation or
reorganization (whether in bankruptcy, insolvency or receivership proceedings
or upon an assignment for the benefit of creditors or otherwise):


 


(i)                                     The
Lenders shall first be entitled to receive payment in full of the Obligations
before either Borrower or any Guarantor is entitled to receive any payment on
account of the Guarantor Claims.


 


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(ii)                                  Any
payment or distribution of assets of any Loan Party of any kind or character,
whether in cash, property or securities, to which either Borrower or any
Guarantor would be entitled except for the provisions of this Section 8.09(c),
shall be paid by the liquidating trustee or agent or other Person making such
payment or distribution directly to the Lenders, to the extent necessary to
make payment in full of all Obligations remaining unpaid after giving effect to
any concurrent payment or distribution or provisions therefor to the Lenders.


 


(d)                                 No right of the
Lenders or any other present or future holders of any Obligations to enforce
the subordination provisions herein shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of any Loan Party or by
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by either Borrower or any Guarantor with the terms hereof,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with.


 


Section 8.10                                Claims
in Bankruptcy. In the event of receivership, bankruptcy, reorganization,
arrangement, debtor’s relief, or other insolvency proceedings involving either
Borrower or any Subsidiary of either Borrower, as debtor, the Lenders shall have
the right to prove their claim in any proceeding, so as to establish their
rights hereunder and receive directly from the receiver, trustee or other court
custodian, dividends and payments which would otherwise be payable upon
Guarantor Claims.  Each Guarantor hereby
assigns such dividends and payments to the Lenders. Should the Administrative
Agent or any Lender receive, for application upon the Obligations, any such
dividend or payment which is otherwise payable to any Guarantor, and which, as
between either Borrower or any Subsidiary of either Borrower and any Guarantor,
shall constitute a credit upon the Guarantor Claims, then upon payment in full
of the Obligations and the expiration or cash collateralization of the Letters
of Credit in accordance with the terms of this Agreement and termination of the
Revolving Commitments, such Guarantor shall become subrogated to the rights of
the Lenders to the extent that such payments to the Lenders on the Guarantor
Claims have contributed toward the liquidation of the Obligations and such
subrogation shall be with respect to that proportion of the Obligations which
would have been unpaid if the Administrative Agent or a Lender had not received
dividends or payments upon the Guarantor Claims.


 


Section 8.11                                Payments
Held in Trust.  In the event that
notwithstanding Sections 8.09 and 8.10 above, any Guarantor
should receive any funds, payments, claims or distributions which is prohibited
by such Sections, such Guarantor agrees to hold in trust for the Lenders an amount
equal to the amount of all funds, payments, claims or distributions so
received, and agrees that it shall have absolutely no dominion over the amount
of such funds, payments, claims or distributions except to pay them promptly to
the Administrative Agent, and each Guarantor covenants promptly to pay the same
to the Administrative Agent.


 


Section 8.12                                Benefit
of Guaranty.  The provisions of this Article VIII
are for the benefit of the Lenders, their successors, and their permitted
transferees, endorsees and assigns.  In
the event all or any part of the Obligations are transferred, endorsed or
assigned by the Lenders, as the case may be, to any Person or Persons in
accordance with the terms of this Agreement, any reference to the “Lenders”
herein, as the case may be, shall be deemed to refer equally to such Person or
Persons.


 


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Section 8.13                                Reinstatement.  This Article VIII shall remain in
full force and effect and continue to be effective in the event any petition is
filed by or against any Borrower, any Guarantor or any other Loan Party for
liquidation or reorganization, in the event that any of them becomes insolvent
or makes an assignment for the benefit of creditors or in the event a receiver,
trustee or similar Person is appointed for all or any significant part of any
of their assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount,
or must otherwise be restored or returned by the Lenders, whether as a
“voidable preference,” “fraudulent conveyance,” or otherwise, all as though
such payment or performance had not been made. 
In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Obligations shall be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.


 


Section 8.14                                Liens
Subordinate. Each Guarantor agrees that any liens, security interests,
judgment liens, charges or other encumbrances upon either Borrower’s or any
Subsidiary of either Borrower’s assets securing payment of the Guarantor Claims
shall be and remain inferior and subordinate to any liens, security interests,
judgment liens, charges or other encumbrances upon either Borrower’s or any
Subsidiary of either Borrower’s assets securing payment of the Obligations,
regardless of whether such encumbrances in favor of any Guarantor, the Administrative
Agent or the Lenders presently exist or are hereafter created or attach.


 


Section 8.15                                Guarantor’s
Enforcement Rights. Without the prior written consent of the Lenders, no
Guarantor shall (a) exercise or enforce any creditor’s right it may have
against either Borrower or any Subsidiary of either Borrower, or (b) foreclose,
repossess, sequester or otherwise take steps or institute any action or
proceeding (judicial or otherwise, including without limitation the
commencement of or joinder in any liquidation, bankruptcy, rearrangement,
debtor’s relief or insolvency proceeding) to enforce any lien, mortgages, deeds
of trust, security interest, collateral rights, judgments or other encumbrances
on assets of either Borrower or any Subsidiary of either Borrower held by
Guarantor.


 


Section 8.16                                Limitation.  It is the intention of the Guarantors and
each Secured Party that the amount of the Obligations guaranteed by each
Guarantor shall be in, but not in excess of, the maximum amount permitted by
fraudulent conveyance, fraudulent transfer and similar Legal Requirement
applicable to such Guarantor. Accordingly, notwithstanding anything to the
contrary contained in this Article VIII or in any other agreement
or instrument executed in connection with the payment of any of the Obligations
guaranteed hereby, the amount of the Obligations guaranteed by a Guarantor
under this Article VIII shall be limited to an aggregate amount
equal to the largest amount that would not render such Guarantor’s obligations
hereunder subject to avoidance under Section 548 of the United States
Bankruptcy Code or any comparable provision of any other applicable law.


 


Section 8.17                                Contribution
Rights.


 


(a)                                  To the extent that
any payment is made under this Guaranty (a “Guarantor Payment”), by a
Guarantor, which Guarantor Payment, taking into account all other Guarantor
Payments then previously or concurrently made by all other Guarantors, exceeds
the amount which such Guarantor would otherwise have paid if each Guarantor had
paid the aggregate Obligations satisfied by such Guarantor Payment in the same
proportion that such Guarantor’s 


 


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Allocable Amount (as defined below) (in effect immediately prior to
such Guarantor Payment) bore to the aggregate Allocable Amounts of all of the
Guarantors in effect immediately prior to the making of such Guarantor Payment,
then, following the date on which the Obligations shall be paid and satisfied
in full and the expiration or cash collateralization of the Letters of Credit
in accordance with the terms of this Agreement and termination of the Revolving
Commitments and each Guarantor shall have performed all of its obligations
hereunder, such Guarantor shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, each of the other Guarantors for the
amount of such excess, pro rata based upon their respective Allocable Amounts
in effect immediately prior to such Guarantor Payment.


 


(b)                                 As of any date of
determination, the “Allocable Amount” of any Guarantor shall be equal to the
maximum amount of the claim which could then be recovered from such Guarantor
under this Guaranty without rendering such claim voidable or avoidable under Section 548
of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or common law.


 


(c)                                  This Section 8.17
is intended only to define the relative rights of the Guarantors and nothing
set forth in this Section 8.17 is intended to or shall impair the
obligations of the Guarantors, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of this
Guaranty.


 


(d)                                 The rights of the
parties under this Section 8.17 shall be exercisable upon the date
the Obligations shall be paid and satisfied in full and the expiration or cash
collateralization of the Letters of Credit in accordance with the terms of this
Agreement and termination of the Revolving Commitments and each Guarantor shall
have performed all of its obligations hereunder.


 


(e)                                  The parties hereto
acknowledge that the right of contribution and indemnification hereunder shall
constitute assets of any Guarantor to which such contribution and indemnification
is owing.


 


Section 8.18                                Release
of Guarantors.  Upon the sale or
disposition of any Guarantor pursuant to the terms of this Agreement to any
Person other than either Borrower or any other Guarantor, the Collateral Agent
shall, at the Borrowers’ expense, execute and deliver to such Guarantor such
documents as such Guarantor shall reasonably require and take any other actions
reasonably required to evidence or effect the release of such Guarantor from
this Agreement and the other Loan Documents.


 


ARTICLE IX


 


THE ADMINISTRATIVE AGENT


 


Section 9.01                                Appointment
and Authority. Each of the Lenders and the Issuing Bank hereby irrevocably
appoints SG to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to such
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto. The provisions of this Article are
solely for the benefit of the Administrative Agent, the Lenders and 


 


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the Issuing Bank, and no Loan Party shall have rights as a third party
beneficiary of any of such provisions.


 


Section 9.02                                Rights
as a Lender. The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Revolving Lender as any
other Revolving Lender and may exercise the same as though it were not the
Administrative Agent and the term “Revolving Lender” or “Revolving Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative 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 Parent or any Subsidiary or other Affiliate thereof as if
such Person were not the Administrative Agent hereunder and without any duty to
account therefor to the Lenders.


 


Section 9.03                                Exculpatory
Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents.
Without limiting the generality of the foregoing, the Administrative Agent:


 


(a)                                  shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing;


 


(b)                                 shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the
other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Majority Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that the Administrative 
Agent shall not be required to take any action that, in its opinion or
the opinion of its counsel, may expose the Administrative Agent to liability or
that is contrary to any Loan Document or applicable law; and


 


(c)                                  shall not, except as
expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Parent or any of its Affiliates that is communicated to or
obtained by the Person serving as Agent or any of its Affiliates in any
capacity.


 


The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Majority
Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01) or (ii) in
the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative
Agent by the Parent or either Borrower, a Lender or the Issuing Bank.


 


The Administrative 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 any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or 


 


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therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article III or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


Section 9.04                                Reliance
by the Administrative Agent. The Administrative Agent 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
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Administrative Agent also
may rely upon any statement made to it orally or by telephone and believed by
it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Revolving Advance or Bridge Loan or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the Issuing Bank, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the Issuing Bank unless the Administrative Agent
shall have received notice to the contrary from such Lender or the Issuing Bank
prior to the making of such Revolving Advance or Bridge Loan, or the issuance
of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for a Loan Party), 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.


 


Section 9.05                                Delegation
of Duties. The Administrative Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document
by or through any one or more sub-agents appointed by the Administrative Agent.
The Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective
Related Parties. The exculpatory provisions of this Article shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and
any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as the Administrative Agent.


 


Section 9.06                                Resignation
of the Administrative Agent.


 


(a)                                  The Administrative
Agent may at any time give notice of its resignation to the Lenders, the
Issuing Bank and the Borrowers. Upon receipt of any such notice of resignation,
the Majority Lenders shall have the right, and provided that no Default or
Event of Default exists, with the consent of the Borrowers (which consent shall
not be unreasonably withheld or delayed), to appoint a successor, which shall
be a Revolving Lender with an office in New York, or an Affiliate of any such
Revolving Lender with an office in New York. 
If no such successor shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 60 days after the
retiring Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the Issuing Bank appoint a successor
Administrative Agent meeting the qualifications set forth above provided and
consented to by the Borrowers (provided that no Default or Event of Default
exists and which consent shall not 


 


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be unreasonably withheld or delayed) that if the Administrative Agent
shall notify the Borrowers and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Agent shall
be discharged from its duties and obligations hereunder and under the other
Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders or the Issuing Bank under any of the Loan
Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations
provided to be made by, to or through such Administrative Agent shall instead
be made by or to each Lender and the Issuing Bank directly, until such time as
the Majority Lenders appoint a successor Administrative Agent as provided for
above in this paragraph. Upon the acceptance of a successor’s 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) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of
its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this paragraph). The fees
payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 10.04 shall continue in effect for
the benefit of such retiring Administrative 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 Administrative Agent was acting as
Administrative Agent.


 


(b)                                 Upon the occurrence of
a Revolving Termination Date, SG shall automatically be deemed to have resigned
effective upon such date, without need for any prior notice by SG or any other
party.  Upon such resignation, any
remaining Bridge Lenders shall have the right, and provided that no Default or
Event of Default exists, with the consent of the Borrowers (which consent shall
not be unreasonably withheld or delayed), to appoint a successor.  If no such successor shall have been so
appointed by the Bridge Lenders and shall have accepted such appointment on the
Revolving Termination Date, then SG’s resignation shall nonetheless become effective
on such date and (1) SG shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through such Administrative Agent shall instead be made by or to each Bridge
Lender directly, until such time as the Bridge Lenders appoint a successor
Administrative Agent as provided for above in this paragraph.


 


(c)                                  Upon the acceptance
of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this paragraph). The fees payable by the
Borrowers to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties 


 


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in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.


 


Section 9.07                                Non-Reliance
on Administrative Agent and Other Lenders. Each Lender and the Issuing Bank
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties 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 and the Issuing Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties 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, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.


 


SECTION 9.08                    Indemnification.   WHETHER OR
NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED, THE LENDERS SEVERALLY
AGREE TO INDEMNIFY UPON DEMAND THE ADMINISTRATIVE AGENT AND THE ISSUING BANK,
IN THEIR CAPACITY AS ADMINISTRATIVE AGENT AND ISSUING BANK, AND EACH RELATED
PARTY OF ANY OF THE FOREGOING (COLLECTIVELY, THE “INDEMNITEES”) (TO THE EXTENT
NOT REIMBURSED BY THE LOAN PARTIES), ACCORDING TO THEIR RESPECTIVE PRO RATA
SHARES OF THE AGGREGATE BRIDGE LOANS AND REVOLVING COMMITMENTS OUTSTANDING (OR
IF NO REVOLVING COMMITMENTS ARE OUTSTANDING, THE AGGREGATE BRIDGE LOANS AND
REVOLVING LOANS OUTSTANDING), AND HOLD HARMLESS SUCH INDEMNITEE FROM AND
AGAINST ANY AND ALL INDEMNIFIED LIABILITIES (AS DEFINED IN SECTION 10.05)
IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF
THE NEGLIGENCE OF ANY INDEMNITEE; PROVIDED, HOWEVER THAT NO
LENDER SHALL BE LIABLE FOR THE PAYMENT TO ANY INDEMNITEE FOR ANY PORTION OF
SUCH INDEMNIFIED LIABILITIES TO THE EXTENT DETERMINED IN A FINAL, NONAPPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH
RELATED PARTY’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED, HOWEVER,
THAT NO ACTION TAKEN IN ACCORDANCE WITH THE DIRECTIONS OF THE MAJORITY LENDERS
SHALL BE DEEMED TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT FOR
PURPOSES OF THIS SECTION.  WITHOUT
LIMITATION OF THE FOREGOING, EACH LENDER AGREES TO REIMBURSE THE ADMINISTRATIVE
AGENT AND THE ISSUING BANK PROMPTLY UPON DEMAND FOR ITS RATABLE SHARE OF ANY
OUT-OF-POCKET EXPENSES (INCLUDING ALL FEES, EXPENSES AND DISBURSEMENTS OF ANY
LAW FIRM OR OTHER EXTERNAL COUNSEL INCURRED BY THE ADMINISTRATIVE AGENT OR THE
ISSUING BANK IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY,
ADMINISTRATION, MODIFICATION, AMENDMENT, OR ENFORCEMENT (WHETHER THROUGH
NEGOTIATIONS, LEGAL PROCEEDINGS, OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT
OF RIGHTS OR RESPONSIBILITIES UNDER, THIS AGREEMENT OR ANY OTHER LOAN 


 


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DOCUMENT, TO THE EXTENT THAT THE
ADMINISTRATIVE AGENT OR THE ISSUING BANK IS NOT REIMBURSED FOR SUCH BY THE LOAN
PARTIES.  THE UNDERTAKING IN THIS SECTION SHALL
SURVIVE TERMINATION OF THE COMMITMENTS, THE PAYMENT OF ALL OTHER OBLIGATIONS
AND THE RESIGNATION OF THE ADMINISTRATIVE AGENT.


 


Section 9.09                                Collateral
and Guaranty Matters.


 


(a)                                  The Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion, without the necessity of any notice to or further consent from the
Secured Parties:


 


(i)                                     to
release any Lien on any property granted to or held by the Administrative Agent
under any Security Document (i) upon termination of the Revolving
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters
of Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or (iii) subject
to Section 10.01, if approved, authorized or ratified in writing by
the Majority Lenders;


 


(ii)                                  to
take any actions with respect to any Collateral or Security Documents which may
be necessary to perfect and maintain Acceptable Security Interests in and Liens
upon the Collateral granted pursuant to the Security Documents; and


 


(iii)                               to
take any action in exigent circumstances as may be reasonably necessary to
preserve any rights or privileges of the Secured Parties under the Loan Documents
or applicable Legal Requirements.


 


(b)                                 Upon the request of
the Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent’s authority to release particular types or items of
Collateral pursuant to this Section 9.09.


 


(c)                                  Each Loan Party
hereby irrevocably appoints the Administrative Agent as such Loan Party’s
attorney-in-fact, with full authority to, after the occurrence and during the
continuance of an Event of Default, act for such Loan Party and in the name of
such Loan Party to, in the Administrative Agent’s discretion upon the
occurrence and during the continuance of an Event of Default, (i) file one
or more financing or continuation statements, and amendments thereto, relative
to all or any part of the Collateral without the signature of such Loan Party
where permitted by law, (ii) to receive, endorse, and collect any drafts
or other instruments, documents, and chattel paper which are part of the
Collateral, (iii) to ask, demand, collect, sue for, recover, compromise,
receive, and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral, (iv) to file any claims or
take any action or institute any proceedings which the Administrative Agent may
reasonably deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the Administrative Agent with
respect to any of the Collateral and (v) if any Loan Party fails to
perform any covenant contained in this Agreement or the other Security
Documents after the expiration of any applicable grace periods, the
Administrative Agent may itself perform, or cause performance of, such
covenant, and such Loan Party shall pay for the expenses of the 


 


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Administrative Agent incurred in connection therewith in accordance
with Section 10.04.  The power of
attorney granted hereby is coupled with an interest and is irrevocable.


 


(d)                                 The powers conferred
on the Administrative Agent under this Agreement and the other Security
Documents are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers.  Beyond the safe custody thereof, the
Administrative Agent and each Lender shall have no duty with respect to any
Collateral in its possession or control (or in the possession or control of any
agent or bailee) or with respect to any income thereon or the preservation of
rights against prior parties or any other rights pertaining thereto. The Administrative
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which the Administrative Agent accords
its own property.  Neither the
Administrative Agent nor any Lender shall be liable or responsible for any loss
or damage to any of the Collateral, or for any diminution in the value thereof,
by reason of the act or omission of any warehouseman, carrier, forwarding agency,
consignee, broker or other agent or bailee selected by Borrower or selected by
the Administrative Agent in good faith.


 


Section 9.10                                Intercreditor
Agreement and Security Documents. 
Each Lender hereby further authorizes the Administrative Agent, on behalf
of and for the benefit of Secured Parties, without further authorization or
consent of the Lenders, to enter into the Intercreditor Agreement, Amendment No. 1
to the Intercreditor Agreement in substantially the form distributed to the
Lenders, Amendment No. 2 to the Intercreditor Agreement in substantially
the form distributed to the Lenders, and each Security Document as secured
party, exercise all the powers, rights and remedies under the Intercreditor
Agreement and the other Security Documents for the benefit of Secured Parties
in accordance with the terms thereof, and each Lender agrees to be bound by the
terms of the Intercreditor Agreement and each such Security Document, provided
that the Administrative Agent shall not enter into or consent to any amendment,
modification, termination or waiver of any provision contained in any such
Security Document or the Intercreditor Agreement except as otherwise permitted
by Section 10.01.


 


Section 9.11                                No
Other Duties, etc. Anything herein to the contrary notwithstanding, none of
the Arranger or the Syndication Agent or Sole Bookrunner 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 the
Administrative Agent, a Lender or the Issuing Bank.


 


Section 9.12                                No
Duty to Share Information with Bridge Lenders. Anything herein to the
contrary notwithstanding, none of the Administrative Agent, the Revolving
Lenders, and the Issuing Bank shall have any duty to (a) share information
with the Bridge Lenders, (b) include the Bridge Lenders in discussions or
meetings regarding the Borrowers or the credit facilities governed by this
Agreement, (c) provide the Bridge Lenders with access to any intralinks
site or other data-sharing platform related to the Borrowers or the
transactions governed by this Agreement, or (d) share with the Bridge
Lenders any advice or information received from financial advisors, legal
counsel, or other consultants.


 


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ARTICLE X


 


MISCELLANEOUS


 


Section 10.01                          Amendments, Etc. No amendment or waiver of any provision
of this Agreement or any other Loan Document (other than the Fee Letters), and
no consent to any departure by the Parent or any other Loan Party therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Majority Lenders or by the Administrative Agent, with the consent of the
Majority Lenders and the Borrowers and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or
consent shall:


 


(a)                                  [reserved]


 


(b)                                 extend or increase the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 7.02)
without the written consent of such Lender;


 


(c)                                  postpone any date
fixed by this Agreement or any other Loan Document for any payment or mandatory
prepayment of principal, interest, fees or other amounts due to the Lenders (or
any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;


 


(d)                                 reduce the principal
of, or the rate or amount of interest specified herein on, any Revolving
Advance, Bridge Loan, or Reimbursement Obligation, or (subject to clause (iv) of
the second proviso to this Section 10.01) any fees or other amounts
payable hereunder or under any other Loan Document without the prior written
consent of each Lender directly affected thereby; provided, however,
that (i) only the consent of the Majority Lenders shall be necessary to
waive any obligation of either Borrower to pay interest at the default rate set
forth in Section 2.06(e) on, or amend Section 2.06(e) with
respect to, the Revolving Obligations and (ii) only the consent of each
Bridge Lender shall be necessary to waive any obligation of either Borrower to
pay interest at the default rate set forth in Section 2.06(e) on,
or amend Section 2.06(e) with respect to, the Bridge
Obligations;


 


(e)                                  change Section 2.02,
2.12(a), or 2.12(b) in a manner that would alter the sharing
of payments required thereby without the written consent of each Revolving
Lender;


 


(f)                                    change Section 2.12(c) in
a manner that would alter the sharing of payments required thereby without the
written consent of each Bridge Lender;


 


(g)                                 change (i) Section 2.03(d),
2.05(b), (c), or (d), 2.06(b), 2.06(f), 3.01(a), 6.06(f),
6.08(g), 6.14(b), 9.08, or 10.05; (ii) Section 7.02(a),
7.03(a), or 7.06 to adversely affect the priority of payments to
the Bridge Lenders; or (iii) the definition of “Bridge Obligations Payment
Conditions” without the consent of each Bridge Lender;


 


(h)                                 change (i) any
provision of this Section, or the definition of “Majority Lenders” without the
written consent of each Revolving Lender, (ii) Section 10.01(g) without
the consent of each Bridge Lender, or (iii) any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any 


 


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determination or grant any consent hereunder, without the written
consent of each Lender directly affected thereby;


 


(i)                                     release any
Guarantor from the Guaranty or all or any substantial portion of the Collateral
without the written consent of each Revolving Lender; provided, however, that
any Guarantor or Collateral may be released if they are sold or transferred as
permitted hereunder; or


 


(j)                                     amend, modify,
terminate or waive any provision contained in Section 2, 3, or 5 of the
Intercreditor Agreement without the consent of all of the Lenders;


 


and, provided further, that (i) no amendment, waiver or
consent shall, unless in writing and signed by the Issuing Bank in addition to
the Lenders required above, affect the rights or duties of the Issuing Bank
under this Agreement or any Letter of Credit Application relating to any Letter
of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iii) Section 10.06(g) may
not be amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Revolving Advances are being funded by a SPC at
the time of such amendment, waiver or other modification; and (iv) the Fee
Letters may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto.


 


Section 10.02                          Notices,
Etc.


 


(a)                                  General.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in paragraph (c) 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, sent by
telecopier or (subject to subsection (c) below) electronic mail address as
follows:


 


(i)                                     if
to either Borrower or any other Loan Party, the Administrative Agent, or the
Issuing Bank, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 10.02 or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the other parties; and


 


(ii)                                  if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Administrative Agent.


 


Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, shall be
deemed to have been given on the next Business Day for the recipient) and
confirmed received. Notices delivered through electronic communications to the
extent provided in paragraph (c) below, shall be effective as provided in
said paragraph (c).  In no event shall a
voicemail message be effective as a notice, communication or confirmation
hereunder.


 


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(b)                                 Effectiveness of
Facsimile Documents and Signatures. 
Loan Documents may be transmitted and/or signed by facsimile.  The effectiveness of any such documents and
signatures shall, subject to applicable Legal Requirements, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders.  The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.


 


(c)                                  Limited Use of Electronic
Mail.  Notices and other
communications to the Lenders and the Issuing Bank hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent
in its sole discretion, provided that the foregoing shall not apply to
notices to any Lender or the Issuing Bank pursuant to Article II if
such Lender or the Issuing Bank, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Borrowers 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 Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received upon
the sender’s 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.


 


(d)                                 Reliance by
Administrative Agent and Lenders. 
The Administrative Agent and the Lenders shall be entitled to rely and
act upon any notices (including telephonic Borrowing Notices) purportedly given
by or on behalf of a Loan Party 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
BORROWERS SHALL, JOINTLY AND SEVERALLY, INDEMNIFY THE ADMINISTRATIVE AGENT, THE
ISSUING BANK, EACH LENDER AND THEIR RELATED PARTIES FROM ALL LOSSES, COSTS,
EXPENSES AND LIABILITIES RESULTING FROM THE RELIANCE BY SUCH PERSON ON EACH
NOTICE PURPORTEDLY GIVEN BY OR ON BEHALF OF A BORROWER; PROVIDED THAT SUCH
INDEMNITY SHALL NOT BE AVAILABLE TO THE EXTENT THAT SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES OR DISBURSEMENTS ARE DETERMINED BY A COURT OF COMPETENT
JURISDICTION BY FINAL AND NON-APPEALABLE JUDGMENT TO HAVE RESULTED FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON SEEKING
INDEMNIFICATION.  All
telephonic notices to and other 


 


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communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


Section 10.03                          No
Waiver; Cumulative Remedies.  No
failure on the part of any Lender or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided in this Agreement are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.


 


Section 10.04                          Costs
and Expenses.  The Borrowers shall,
jointly and severally, pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and their Affiliates (including the
reasonable fees, charges and disbursements of counsel, financial advisors, and
other consultants for the Administrative Agent) in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration 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 Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the Issuing Bank (including the fees,
charges and disbursements of any counsel, financial advisors, and other
consultants for the Administrative Agent, any Lender or the Issuing Bank) in
connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Revolving
Advances or Bridge Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Revolving Advances, Bridge Loans, or Letters of
Credit; provided that the expenses payable pursuant to this Section 10.04
in connection with financial advisor services provided by Goldin Inc. shall be
limited to $250,000.00.  The foregoing
costs and expenses shall include all search, filing, recording, title insurance
and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender.  All
amounts due under this Section 10.04 shall be payable within ten
Business Days after demand therefor.  The
agreements in this Section shall survive the termination of the Revolving
Commitments and repayment of all other Obligations.


 


Section 10.05                          Indemnification.
THE BORROWERS SHALL, JOINTLY AND SEVERALLY
INDEMNIFY THE ADMINISTRATIVE AGENT, EACH LENDER AND THE ISSUING BANK, 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 LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES, OR DISBURSEMENTS (INCLUDING ALL REASONABLY
INCURRED FEES, EXPENSES AND DISBURSEMENTS OF ANY LAW FIRM OR OTHER EXTERNAL
COUNSEL) OF ANY KIND OR NATURE 


 


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WHATSOEVER WHICH MAY BE IMPOSED ON,
INCURRED BY, OR ASSERTED AGAINST ANY INDEMNITEE IN ANY WAY RELATING TO OR
ARISING OUT OF OR IN CONNECTION WITH (A) THE EXECUTION, DELIVERY,
ENFORCEMENT, PERFORMANCE, OR ADMINISTRATION OF THIS AGREEMENT, ANY LOAN
DOCUMENT, OR ANY OTHER AGREEMENT, LETTER OR INSTRUMENT DELIVERED IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREBY, (B) ANY REVOLVING COMMITMENT, REVOLVING
ADVANCE, BRIDGE LOAN, OR LETTER OF CREDIT OR THE USE OR PROPOSED USE OF THE
PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY THE ISSUING BANK 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), (C) ANY ACTION TAKEN OR OMITTED BY THE ADMINISTRATIVE AGENT OR THE
ISSUING BANK UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (INCLUDING THE
ADMINISTRATIVE AGENT’S AND THE ISSUING BANK’S OWN NEGLIGENCE), (D) ANY
ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY
PROPERTY CURRENTLY OR FORMERLY OWNED OR OPERATED BY THE BORROWER, ANY
SUBSIDIARY OR ANY OTHER LOAN PARTY, OR ANY ENVIRONMENTAL LIABILITY RELATED IN
ANY WAY TO THE BORROWER, ANY SUBSIDIARY OR ANY OTHER LOAN PARTY, OR (E) ANY
ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING
TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY
(INCLUDING ANY INVESTIGATION OF, PREPARATION FOR, OR DEFENSE OF ANY PENDING OR
THREATENED CLAIM, INVESTIGATION, LITIGATION OR PROCEEDING) AND REGARDLESS OF
WHETHER ANY INDEMNITEE IS A PARTY THERETO (ALL THE FOREGOING, COLLECTIVELY, THE
“INDEMNIFIED LIABILITIES”); PROVIDED THAT SUCH INDEMNITY SHALL
NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES OR DISBURSEMENTS 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.


 


TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, NO LOAN PARTY SHALL ASSERT, AND 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, ANY OTHER LOAN DOCUMENT OR
ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS
THEREOF.  NO INDEMNITEE SHALL BE LIABLE
FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY
INFORMATION OR OTHER MATERIALS 


 


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DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS,
ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.


 


ALL AMOUNTS DUE UNDER THIS SECTION 10.05
SHALL BE PAYABLE WITHIN TEN BUSINESS DAYS AFTER DEMAND THEREFOR.  THE AGREEMENTS IN THIS SECTION SHALL
SURVIVE THE RESIGNATION OF THE ADMINISTRATIVE AGENT, THE REPLACEMENT OF ANY
LENDER, THE TERMINATION OF THE COMMITMENTS AND THE REPAYMENT, SATISFACTION OR
DISCHARGE OF ALL THE OTHER OBLIGATIONS.


 


Section 10.06                          Successors
and Assigns.


 


(a)                                  Generally.  The terms and provisions of this Agreement
and the other Loan Documents shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that no Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each
Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible 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, (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) or (i) of this Section,
or (iv) to an SPC in accordance with the provisions of subsection (h) 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, Participants to the extent provided in subsection (d) of
this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


(b)                                 Assignments by
Lenders.  Any Lender may assign to
one or more Eligible Assignees all or any portion of its rights and obligations
under this Agreement (including, without limitation, if such Lender is a
Revolving Lender, all or a portion of its Revolving Commitments, the Revolving
Advances owing to it, its participations in Letter of Credit Obligations, and,
if such Lender is a Bridge Lender, all or a portion of its Bridge Loans) at the
time owing to it); provided, however, that


 


(i)                                     except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Revolving Commitment and the Revolving Advances owing to it or the
entire amount of the assigning Lender’s Bridge Loans, as applicable, or in the
case of an assignment to a Lender or an Affiliate of a Lender or an SPC (as
defined in subsection (g) of this Section) with respect to a Lender, the
aggregate amount of the Revolving Commitments and Revolving Advances or Bridge
Loans, as applicable, of such Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall not be less than $5,000,000.00;


 


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(ii)                                  the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance; and


 


(iii)                               each
Eligible Assignee (other than an Eligible Assignee that is a Lender or an
Affiliate of a Lender) shall pay to the Administrative Agent a $3,500.00
processing and recording fee.  Any such
assignment need not be ratable as among the Facilities.


 


Upon such execution, delivery, acceptance and recording thereof by the
Administrative Agent pursuant to paragraph (c) of this Section, from and
after the effective date specified in each Assignment and Acceptance, (A) the
Eligible Assignee thereunder shall be a party hereto for all purposes and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder and (B) such assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such Lender’s 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 2.09, 2.11,
10.04 and 10.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment).  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 Administrative Agent shall maintain at
its Applicable Lending Office a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Revolving Commitments of, and principal
amount of the Revolving Advances or Bridge Loans owing to, each Lender from
time to time (the “Register”). 
The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and each of the Loan Parties, the
Administrative Agent, the Issuing Bank, and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement.  The Register shall be
available for inspection by any Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.


 


(d)                                 Participations.  Any Revolving Lender may at any time, without
the consent of, or notice to, the Borrowers or the Administrative Agent, sell
participations to any Person (other than a natural person or either Borrower or
any of either Borrower’s Affiliates or Subsidiaries) (each a “Revolving
Participant”) in all or a portion of such Revolving Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Revolving
Commitment and/or the Revolving Advances (including such Lender’s
participations in Letter of Credit Obligations) owing to it), and any Bridge
Lender may at any time, without the consent of, or notice to, the Borrowers or
the Administrative Agent, sell participations to any Bridge Lender or Affiliate
of a Bridge Lender (other than a natural person) (each a “Bridge Participant”
and, together with the Revolving Participants, the “Participants”) in
all or a portion of such Bridge Lender’s rights and/or obligations under this
Agreement (including all or a portion of the Bridge Loans owing to it); in each
case provided that (i) such Lender’s obligations under this
Agreement shall remain 


 


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unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s
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 10.01 that directly affects such
Participant.  Subject to subsection (e) of
this Section, the Borrowers agree that each Participant shall be entitled to
the benefits of Sections 2.08, 2.09, 2.11, 10.04
and 10.05 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 7.05  as though it were a Lender, provided
such Participant agrees to be subject to Section 2.12 as though it
were a Lender.


 


(e)                                  A Participant shall
not be entitled to receive any greater payment under Section 2.09
or 2.11  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 2.11
unless the Borrowers are notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with Section 2.11(e) as
though it were a Lender.


 


(f)                                    Any Lender may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement 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)                                 Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the
Borrowers (an “SPC”) the option to provide all or any part of any
Revolving Advance that such Granting Lender would otherwise be obligated to
make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Revolving Advance, and (ii) if
a SPC elects not to exercise such option or otherwise fails to make all or any
part of such Revolving Advance, the Granting Lender shall be obligated to make
such Revolving Advance pursuant to the terms hereof.  Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of the
Borrowers under this Agreement, (ii) no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement for which a Lender
would be liable, and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder and
retain all obligations under this Agreement. 
The making of a Revolving Advance by a SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Revolving
Advance were made by such Granting Lender. 
In 


 


115

















 


furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior debt of any SPC, it will not institute
against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof.  Notwithstanding anything to the contrary
contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrowers and the Administrative Agent and without paying any
processing fee therefor, assign all or any portion of its right to receive
payment with respect to any Revolving Advance to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Revolving Advances to any rating agency, commercial paper dealer or provider of
any surety or Guarantee or credit or liquidity enhancement to such SPC.


 


(h)                                 Notwithstanding
anything to the contrary contained herein, any Lender that is a Fund may create
a security interest in all or any portion of the Revolving Advances owing to it
and the Note, if any, held by it to the trustee for holders of obligations
owed, or securities issued, by such Fund as security for such obligations or securities,
provided that unless and until such trustee actually becomes a Lender in
compliance with the other provisions of this Section 10.06, (i) no
such pledge shall release the pledging Lender from any of its obligations under
the Loan Documents and (ii) such trustee shall not be entitled to exercise
any of the rights of a Lender under the Loan Documents even though such trustee
may have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.


 


Section 10.07                          Confidentiality.  Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Borrowers and its
obligations, (g) with the consent of the Borrowers or (h) to the
extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrowers.  For purposes
of this Section, “Information” means all information received from any Loan
Party relating to any Loan Party or any of their respective businesses, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by any Loan Party, provided
that, in the case of information received from a Loan Party after the Closing
Date, such information is clearly identified at the time of delivery as
confidential.  Any Person required to
maintain the 


 


116

















 


confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Section 10.08                          Execution
in Counterparts.  This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.


 


Section 10.09                          Survival
of Representations, etc.  All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been
or will be relied upon by the Administrative Agent and each Lender, regardless
of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default at the time of any Revolving Advance or
Bridge Loan or at the time any Letter of Credit was issued, and shall continue
in full force and effect as long as any Revolving Advance, Bridge Loan, or any
other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding.


 


Section 10.10                          Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions.  The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


Section 10.11                          Interest
Rate Limitation.  Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Revolving Advances or the
Bridge Loans, as applicable, or, if it exceeds such unpaid principal, refunded
to the Borrowers.  In determining whether
the interest contracted for, charged, or received by the Administrative Agent
or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as
an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations hereunder.


 


Section 10.12                          Governing
Law.  This Agreement and each of the
other Loan Documents shall be governed by and construed in accordance with the
laws of the State of New York and the applicable laws of the United States of
America.


 


117

















 


Section 10.13                          Joint
and Several Liability.


 


(a)                                  Each
of the Borrowers is accepting joint and several liability hereunder in
consideration of the financial accommodations to be provided by the Secured
Parties under this Agreement with respect to the Revolving Advances, Bridge
Loans, and Reimbursement Obligations, for the mutual benefit, directly and
indirectly, of each of the Borrowers and in consideration of the undertakings
of each of the Borrowers to accept joint and several liability for the
Obligations of each of them.


 


(b)                                 Each of the Borrowers
jointly and severally hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several liability with
the other Borrower, with respect to the payment and performance of all of the
Obligations arising under this Agreement, it being the intention of the parties
hereto that all the Obligations shall be the joint and several obligations of
all the Borrowers without preferences or distinction among them.


 


(c)                                  If and to the extent
that any of the Borrowers shall fail to make any payment with respect to any of
the Obligations hereunder as and when due or to perform any of such Obligations
in accordance with the terms thereof, then in each such event the other
Borrower will make such payment with respect to, or perform, such Obligation.


 


(d)                                 The obligations of
each Borrower under the provisions of this Section 10.13 constitute
full recourse obligations of such Borrower enforceable against it to the full
extent of its properties and assets, irrespective of the validity, regularity
or enforceability of this Agreement or any other circumstance whatsoever.


 


(e)                                  Except as otherwise
expressly provided herein or in the other Loan Documents, each Borrower hereby
waives notice of acceptance of its joint and several liability, notice of any
and all Revolving Advances or Bridge Loans made or Letters of Credit issued
under this Agreement, notice of occurrence of any Default or Event of Default,
or of any demand for any payment under this Agreement, notice of any action at
any time taken or omitted by any Secured Party under or in respect of any of
the Obligations hereunder, any requirement of diligence and, generally, all
demands, notices and other formalities of every kind in connection with this
Agreement.  Each Borrower hereby assents
to, and waives notice of, any extension or postponement of the time for the
payment of any of the Obligations hereunder, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by any
Secured Party at any time or times in respect of any default by any Borrower in
the performance or satisfaction of any term, covenant, condition or provision
of this Agreement, any and all other indulgences whatsoever by the Secured
Parties in respect of any of the Obligations hereunder, and the taking,
addition, substitution or release, in whole or in part, at any time or times,
of any security for any of such Obligations or the addition, substitution or
release, in whole or in part, of any Borrower. 
Without limiting the generality of the foregoing, each Borrower assents
to any other action or delay in acting or failure to act on the part of the
Secured Parties including, without limitation, any failure strictly or
diligently to assert any right or to pursue any remedy or to comply fully with
applicable laws or regulations thereunder, which might, but for the provisions
of this Section 10.13, afford grounds for terminating, discharging
or relieving such Borrower, in whole or in part, from any of its obligations
under this Section 10.13, it being the intention of each Borrower
that, so long as any of the Obligations hereunder remain unsatisfied, 


 


118

















 


the obligations of such Borrower under this Section 10.13
shall not be discharged except by performance and then only to the extent of
such performance.  The obligations of
each Borrower under this Section 10.13 shall not be diminished or
rendered unenforceable by any winding up, reorganization, arrangement,
liquidation, reconstruction or similar proceeding with respect to the other
Borrower.  The joint and several
liability of the Borrowers hereunder shall continue in full force and effect
notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of
either Borrower.


 


(f)                                    The provisions of
this Section 10.13 are made for the benefit of the Secured Parties
and their successors and assigns, and may be enforced by them in accordance
with the terms of this Agreement from time to time against either of the
Borrowers as often as occasion therefor may arise and without requirement on
the part of any Secured Party first to marshall any of their claims or to
exercise any of their rights against the other Borrower or to exhaust any
remedies available to them against the other Borrower or to resort to any other
source or means of obtaining payment of any of the Obligations hereunder or to elect
any other remedy.  The provisions of this
Section 10.13 shall remain in effect until all the Obligations
hereunder shall have been paid in full or otherwise fully satisfied and the
Revolving Commitments have been terminated. 
If at any time, any payment, or any part thereof, made in respect of any
of the Obligations, is rescinded or must otherwise be restored or returned by
any Secured Party upon the insolvency, bankruptcy or reorganization of the
Borrowers, or otherwise, the provisions of this Section 10.13 will
forthwith be reinstated in effect, as though such payment had not been made.


 


Section 10.14                          SUBMISSION TO JURISDICTION.


 


(a)                                  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE
EASTERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWERS, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS.  THE BORROWERS, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO.  EACH BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED
BY THE LAW OF SUCH STATE.


 


(b)                                 Each Loan Party has
irrevocably appointed CT Corporation System (the “Process Agent”), with
an office on the Closing Date at 111 Eighth Ave., New York, New York, 10011, as
its agent to receive on its behalf and on behalf of its property service of
copies of any summons or complaint or any other process which may be served in
any action.  Such service 


 


119

















 


may be made by mailing or delivering a copy of such process to such
Loan Party in care of the Process Agent at the Process Agent’s above address,
and each Loan Party hereby irrevocably authorizes and directs the Process Agent
to accept such service on its behalf.  As
an alternative method of service, each Loan Party also irrevocably consents to
the service of any and all process in any such action or proceeding by the
mailing of copies of such process to it at the address specified for it on the
signature pages of this Agreement.


 


(c)                                  Nothing in this Section 10.14
shall affect the right of the Administrative Agent or any other Lender to serve
legal process in any other manner permitted by law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against
any Loan Party (as a Borrower or as a Guarantor) in the courts of any other
jurisdiction.


 


Section 10.15                          WAIVER OF JURY.  EACH PARTY
TO THIS AGREEMENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


Section 10.16                          ENTIRE AGREEMENT.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.  THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


 


Section 10.17                          Amendment,
Restatement, and Rearrangement of Prior Debt .  The parties hereto agree that this Agreement
amends, restates and rearranges the Existing Credit Agreement in its entirety
and is not a new or substitute credit agreement or novation of the Existing
Credit Agreement.  Each Loan Party (a) represents
and warrants that it has no defenses to the enforcement of the Security
Documents and other Loan Documents to which it is a party, (b) agrees that
its obligations (and the security interests granted by it) under the Security
Documents to which it is a party will continue in full force and effect to
secure the Obligations and such other amounts in accordance with the terms of
the Loan Documents, and (c) acknowledges, represents, warrants, and agrees
that the liens and security interests granted by it pursuant to the Security
Documents to which it is a party are valid and subsisting and that each of the
Security Documents to which it is a party creates a valid, perfected Lien in favor
of the Administrative Agent for the benefit of the Secured Parties to secure
the Obligations (including the Revolving 


 


120

















 


Obligations and the Bridge Obligations), covering and encumbering all
collateral granted or purported to be granted by such Security Document to
which it is a party.  Each of the
Security Documents remains in full force and effect as executed by the parties
thereto, and nothing herein shall act as a waiver of any of the Administrative
Agent’s or other Secured Parties’ rights under any Security Document, including
the waiver of any Default or Event of Default, if any, however denominated.


 


Section 10.18                          Release;
Acknowledgement of Debt.


 


(a)                                  As a material part of
the consideration for the Administrative Agent and the Lenders entering into
this Agreement, each Borrower and each Guarantor, on behalf of itself and its
officers, directors, equity holders, Affiliates, successors and assigns, hereby
releases and forever discharges the Administrative Agent, the Issuing Bank, and
each Lender and their respective predecessors, officers, managers, directors,
shareholders, employees, agents, attorneys, representatives, subsidiaries, and
Affiliates (each a “Lender Party”) from any and all claims, expenses,
costs, causes of actions or other losses or liabilities of any nature
whatsoever existing on the Closing Date, including, without limitation, all
claims, expenses, costs, causes of actions or other losses or liabilities for
or in respect of contribution and indemnity, whether arising at law or in
equity, whether liability be direct or indirect, liquidated or unliquidated,
whether absolute or contingent, foreseen or unforeseen, and whether or not
heretofore asserted, which any Borrower or Guarantor may have or claim to have
against any Lender Party under, arising out of, in connection with, or in any
way related to, this Agreement or any other Loan Documents.  For the avoidance of doubt, the provisions of
this clause shall survive any termination of this Agreement.


 


(b)                                 As of 9 a.m. New
York time on the Closing Date, (i) the aggregate outstanding principal
amount of (A) Revolving Advances is $0 and (B) Bridge Loans is
$10,400,000.00; and (ii) the aggregate undrawn face amount of the Letters
of Credit is $ 144,250,737.00.


 


Section 10.19                          Termination
of Waiver .  The parties hereto agree
that, upon the effectiveness of this Agreement, the Waiver Agreement and
Amendment No. 1 dated as of November 7, 2008 executed in connection
with the Existing Credit Agreement shall be terminated automatically.


 


[SIGNATURE PAGES FOLLOW]


 


121
















 


EXECUTED as of
the date first above written.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Jeffrey Mayer

  
	
   

  	
  Name:  

  	
    Jeffrey Mayer

  
	
   

  	
  Title:

  	
    Jeffrey Mayer

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Jeffrey Mayer

  
	
   

  	
  Name:

  	
    Jeffrey Mayer

  
	
   

  	
  Title:

  	
    Jeffrey Mayer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Jeffrey Mayer

  
	
   

  	
  Name:

  	
    Jeffrey Mayer

  
	
   

  	
  Title:

  	
    Jeffrey Mayer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ONLINE
  CHOICE INC.

  
	
   

  	
  MXENERGY GAS
  CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY
  ELECTRIC CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY GAS
  CAPITAL CORP.

  
	
   

  	
  MXENERGY
  ELECTRIC CAPITAL CORP.

  
	
   

  	
  MXENERGY
  CAPITAL HOLDINGS CORP.

  
	
   

  	
  INFOMETER.COM
  INC.

  
	
   

  	
  MXENERGY
  CAPITAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Jeffrey Mayer

  
	
   

  	
  Name:

  	
    Jeffrey Mayer

  
	
   

  	
  Title:

  	
    Jeffrey Mayer

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Jeffrey Mayer

  
	
   

  	
  Name:

  	
    Jeffrey Mayer

  
	
   

  	
  Title:

  	
    Jeffrey Mayer

  



 

















 


	
   

  	
  ADMINISTRATIVE
  AGENT:

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Barbara Paulsen

  
	
   

  	
  Name:  

  	
    Barbara Paulsen

  
	
   

  	
  Title:

  	
    Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Chung-Taek Oh

  
	
   

  	
  Name:

  	
    Chung-Taek Oh

  
	
   

  	
  Title:

  	
    Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REVOLVING
  LENDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Barbara Paulsen

  
	
   

  	
  Name:

  	
    Barbara Paulsen

  
	
   

  	
  Title:

  	
    Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Chung-Taek Oh

  
	
   

  	
  Name:

  	
    Chung-Taek Oh

  
	
   

  	
  Title:

  	
    Vice President

  



 

















 


	
   

  	
  WACHOVIA
  BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/John Puckhaber

  
	
   

  	
  Name:  

  	
    John Puckhaber

  
	
   

  	
  Title:

  	
    Senior Vice President

  



 

















 


	
   

  	
  CoBANK, ACB

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Dale Keyes

  
	
   

  	
  Name:

  	
    Dale Keyes

  
	
   

  	
  Title:

  	
    Vice President

  



 

















 


	
   

  	
  MORGAN
  STANLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Daniel Twenge

  
	
   

  	
  Name:

  	
    Daniel Twenge

  
	
   

  	
  Title:

  	
    Authorized Signature

  



 

















 


	
   

  	
  BANK OF
  AMERICA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/David Maiorella

  
	
   

  	
  Name:

  	
    David Maiorella

  
	
   

  	
  Title:

  	
    Senior Vice President

  



 

















 


	
   

  	
  ALLIED IRISH
  BANKS p.l.c.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Vaughn
  Buck

  
	
   

  	
  Name:

  	
    Vaughn Buck

  
	
   

  	
  Title:

  	
    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Robert Moyle

  
	
   

  	
  Name:

  	
    Robert Moyle

  
	
   

  	
  Title:

  	
    Senior Vice President

  



 

















 


	
   

  	
  RZB FINANCE
  LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Astrid Wilke

  
	
   

  	
  Name:

  	
    Astrid Wilke

  
	
   

  	
  Title:

  	
    Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Hermine Kirolos

  
	
   

  	
  Name:

  	
    Hermine Kirolos

  
	
   

  	
  Title:

  	
    Group Vice President

  



 

















 


	
   

  	
  BRIDGE
  LENDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  CHARTER MX
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
     Charterhouse Equity Partners IV, L.P.,

  
	
   

  	
   

  	
     Its Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
     CHUSA Equity Investors IV, L.P.,

  
	
   

  	
   

  	
     Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     Charterhouse Equity IV, LLC,

  
	
   

  	
   

  	
     Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/William M. Landuyt

  
	
   

  	
  Name:

  	
    William M. Landuyt

  
	
   

  	
  Title:

  	
    Authorized Signer

  



 

















 


	
   

  	
  DENHAM
  COMMODITY PARTNERS FUND LP

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
     DENHAM COMMODITY PARTNERS GP

  
	
   

  	
   

  	
     LP, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
     DENHAM GP LLC, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Paul Winters

  
	
   

  	
  Name:

  	
    Paul Winters

  
	
   

  	
  Title:

  	
    Authorized Signature

  



 

















 


	
   

  	
  /s/Jeffrey
  Mayer

  
	
   

  	
  Jeffrey
  Mayer

  



 

















 


	
   

  	
  /s/Chaitu
  Parikh

  
	
   

  	
  Chaitu Parikh

  



 

















 


	
   

  	
  /s/Steven
  Murray

  
	
   

  	
  Steven
  Murray

  



 

















 


	
   

  	
  /s/Carole R.
  Artman-Hodge

  
	
   

  	
  Carole R.
  Artman-Hodge

  



 
















 


EXHIBIT A


 


ASSIGNMENT AND ACCEPTANCE


 


Dated
                                ,


 


Reference is made to the Third Amended and
Restated Credit Agreement dated as of November 17,  2008 (as the same may be amended or modified
from time to time, the “Credit Agreement”) among MxEnergy Inc., a
Delaware corporation, and MxEnergy Electric Inc., a Delaware corporation (each
individually, a “Borrower” and collectively, the “Borrowers”),
MxEnergy Holdings Inc. and certain subsidiaries thereof, the lenders from time
to time party thereto (the “Lenders”), and Société Générale, as
administrative agent for the Lenders (the “Administrative Agent”).  Capitalized terms not otherwise defined in
this Assignment and Acceptance shall have the meanings assigned to them in the
Credit Agreement.


 


Pursuant to the terms of the Credit
Agreement,
                                
wishes to assign and delegate
$                            (1)
of its rights and obligations under the Credit Agreement.  Therefore,
                                  
(“Assignor”),
                              
(“Assignee”), and the Administrative Agent agree as follows:


 


1.             The
Assignor hereby sells and assigns and delegates to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, without recourse to
the Assignor and without representation or warranty except for the
representations and warranties specifically set forth in clauses (i) and (ii) of
Section 2 hereof, a       % interest in and
to all of the Assignor’s rights and obligations under the Credit Agreement as
of the Effective Date (as defined below), including, without limitation, such
percentage interest in the Assignor’s [Revolving Commitment and the Revolving
Advances owing to the Assignor and the Assignor’s Letter of Credit Exposure][Bridge
Loans].


 


2.             The
Assignor (i) represents and warrants that, prior to executing this
Assignment and Acceptance, [its Revolving Commitment is
$                      ,
the aggregate outstanding principal amount of the Revolving Advances owed to it
by the Borrowers is
$                            ,
and its Revolving Pro Rata Share of the Letter of Credit Exposure is
$                            ][the
aggregate outstanding principal amount of the Bridge Loans owed to it by the
Borrowers is
$                      ];
(ii) represents and warrants that it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties, or
representations made in, or in connection with, the Credit Agreement or any
other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency, or value of the Credit Agreement or any other Loan
Document or any other instrument or document furnished pursuant thereto; and (iv) makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party 


 






(1) Except for assignments
of 100% of a Lender’s [Revolving Commitment and Revolving Advances] [Bridge
Loans], and except for assignments to a Lender, an Affiliate of a Lender or an
SPC, an assignment of Revolving Commitment and Revolving Advances, must specify
dollar amount not less than $5,000,000.00.


 

















 


or the performance or observance by any Loan Party of any of its
respective obligations under the Credit Agreement or any other Loan Document or
any other instrument or document furnished pursuant thereto[; and (v) attaches
the Note held by the Assignor and requests that the Administrative Agent exchange
such Note for a new Note dated
                        ,
         in the principal amount of
$                      
payable to the order of the Assignor.](2)


 


3.             The
Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements referred to in Section 5.06
thereof and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance
upon the Administrative Agent, the Assignor, or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement or any other Loan Document; (iii) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement and any other Loan
Document as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iv) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement or any other Loan Document are
required to be performed by it as a Revolving Lender or Bridge Lender, as
applicable; (v) specifies as its Applicable Lending Office (and address
for notices) the office set forth beneath its name on the signature pages hereof;
(vi) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee’s status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to the Assignee under the Credit Agreement [and the Note]
or such other documents as are necessary to indicate that all such payments are
subject to such rates at a rate reduced by an applicable tax treaty(3), and (vii)
represents that it is an Eligible Assignee.


 


4.             The
effective date for this Assignment and Acceptance shall be
                                
(the “Effective Date”) and following the execution of this Assignment and
Acceptance, the Administrative Agent will record it.


 


5.             Upon
such recording, and as of the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement for all purposes, and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Revolving
Lender or Bridge Lender, as applicable; thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.


 


6.             Upon
such recording, from and after the Effective Date, the Administrative Agent
shall make all payments under the Credit Agreement [and the Note] in respect of
the interest assigned hereby (including, without limitation, all payments of
principal, interest, [letter of credit fees and commitment fees][conversion
fees]) to the Assignee.  The Assignor and
Assignee shall 


 






(2) As contemplated in
Section 2.02(g)(iv) of Credit Agreement, Note to be provided only if requested
by Assignee, except in connection with a Bridge Note.


 


(3) To be provided if the
Assignee is organized under the laws of a jurisdiction outside the United
States.


 

















 


make all appropriate adjustments in payments under the Credit Agreement
[and the Note] for periods prior to the Effective Date directly between
themselves.


 


7.             This
Assignment and Acceptance shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.


 


The parties hereto have caused this
Assignment and Acceptance to be duly executed as of the date first above
written.


 


	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy No: (XXX) XXX-XXXX

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Lending Office

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy No: (XXX) XXX-XXXX

  



 

















 


Acknowledged [and approved](4) this      day of
                    ,
20    :


 


SOCIÉTÉ GÉNÉRALE,


as Administrative Agent and Issuing
Bank


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Approved this      day of
                      ,
  20    :

  
	
   

  
	
  MXENERGY INC.

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  
	
  MXENERGY ELECTRIC INC.

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title: 

  	
   

  	
  ](5)

  



 






(4) Approval of Administrative Agent and Issuing Bank may be
required under the definition of “Eligible Assignee”.


 


(5) Provided no Default or Event of Default has occurred and is
continuing, the consent of the Borrowers may be required under the definition
of “Eligible Assignee”.


 

















 


EXHIBIT B


 


FORM OF BORROWING BASE REPORT


 


This Borrowing Base Report is dated as of
                  ,
         (this “Report”), and is
delivered in accordance with the terms of the Third Amended and Restated Credit
Agreement, dated as of November 17, 2008, among MxEnergy Inc., a Delaware
corporation, and MxEnergy Electric Inc., a Delaware corporation (each
individually, a “Borrower” and collectively, the “Borrowers”),
MxEnergy Holdings Inc. and certain subsidiaries thereof, the lenders from time
to time party thereto (the “Lenders”), and Société Générale, as
Administrative Agent for the Lenders (as it may be amended, restated or other
modified from time to time, the “Credit Agreement”, the capitalized
terms of which are used herein unless otherwise defined herein).


 


As of the        of
        , 20    
(the “Determination Date”), each Borrower hereby certifies the following
calculations of the Borrowing Base and Borrowing Base Availability:


 


(Note:  Eligible Accounts,
Eligible Exchange Accounts, Eligible Inventory, and Eligible LDC Residual
Contract Rights must comply in all respects with the requirements of the Credit
Agreement notwithstanding the fact that all such requirements are not contained
in this Report.)


 


	
   

  	
   

  	
   

  	
   

  	
  Total

  Value

  	
   

  	
  Advance
  

  Rate

  	
   

  	
  Adjusted

  Value

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  BORROWING BASE COMPONENTS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  cash and Cash Equivalents of the Borrowers and their Subsidiaries in
  Dollars that are subject to an Acceptable Security Interest

  	
   

  	
  $

  	
   

  	
  100

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Tier I Eligible Accounts

  	
   

  	
  $

  	
   

  	
  90

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Tier II Eligible Accounts

  	
   

  	
  $

  	
   

  	
  80

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Tier I Unbilled Eligible Accounts

  	
   

  	
  $

  	
   

  	
  85

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  Tier II Unbilled Eligible Accounts

  	
   

  	
  $

  	
   

  	
  80

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  positive value of Eligible Exchange Accounts

  	
   

  	
  $

  	
   

  	
  80

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  positive value of Imbalances

  	
   

  	
  $

  	
   

  	
  80

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (h)

  	
   

  	
  Eligible Inventory

  	
   

  	
  $

  	
   

  	
  85

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
   

  	
  Eligible LDC Residual Contract Rights

  	
   

  	
  $

  	
   

  	
  85

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (j)

  	
   

  	
  Undelivered Product Value

  	
   

  	
  $

  	
   

  	
  80

  	
  %

  	
  $

  	
   

  



 

















 


	
  (k)

  	
   

  	
  Swap Termination Value owed by a Borrower or any of its Subsidiaries
  for any Swap Contract between a Borrower or any of its Subsidiaries and a
  Swap Counterparty

  	
   

  	
  $

  	
   

  	
  120

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (l)

  	
   

  	
  First Purchaser Liens

  	
   

  	
  $

  	
   

  	
  100

  	
  %

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (m)

  	
   

  	
  (i) From the Closing Date through December 12, 2008,
  $35,000,000.00 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii) From December 13, 2008 through and including
  December 26, 2009, $25,000,000.00 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii) From December 27, 2008 through and including
  January 9, 2009, $20,000,000.00 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iv) From January 10, 2009 through and including
  February 6, 2009, $15,000,000.00 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (v) From February 7, 2009 through and including
  February 27, 2009, $10,000,000.00 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (vi) From February 28, 2009 through and including
  March 6, 2009, $5,000,000.00

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BORROWING BASE = (a) + (b) +
  (c) + (d) + (e) + (f) + (g) + (h) + (i) +
  (j) – (k) – (l) + (m)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  BORROWING BASE AVAILABILITY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Borrowing Base

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Less

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Revolving Advances

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  plus Letter of Credit Exposure

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Equals

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Equals

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  



 

















 


The undersigned represents and warrants that the foregoing information
is true, complete and correct as of the Determination Date, and that the
Collateral reflected herein complies with the conditions, terms, warranties,
representations and covenants set forth in the Credit Agreement.


 


 


	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 
















 


EXHIBIT C


 


COMPLIANCE CERTIFICATE


 


	
  [For month ended

  	
  ]

  
	
  [For Fiscal Year Ended

  	
  ]

  



 


This certificate dated as of
                            ,
              
is prepared pursuant to the Third Amended and Restated Credit Agreement dated
as of November 17, 2008 (as amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”) among MxEnergy Inc., a
Delaware corporation, and MxEnergy Electric Inc., a Delaware corporation (each
individually, a “Borrower” and collectively, the “Borrowers”),
MxEnergy Holdings Inc. and certain subsidiaries thereof, the lenders from time
to time party thereto (the “Lenders”), and Société Générale, as
administrative agent for the Lenders (the “Administrative Agent”).  Unless otherwise defined in this certificate,
capitalized terms that are defined in the Credit Agreement shall have the
meanings assigned to them by the Credit Agreement.


 


Each of the Borrowers hereby certifies (a) that
no Default or Event of Default has occurred or is continuing, (b) that all
of the representations and warranties made by each of the Loan Parties in the
Credit Agreement and the other Loan Documents are true and correct in all
material respects as if made on this date (unless such representations and
warranties are stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date), (c) the Borrowing Base Availability is
greater than or equal to [zero][$10,000,000.00](6), (d) no material
adverse change has occurred and is continuing with respect to the Collateral
taken as a whole detailed in the most recently delivered Borrowing Base Report,
and (e) that as of the date hereof, the following amounts and calculations
are true and correct:


 


[Continued on the following page.]


 






(6) Use
second option if certificate is dated on or afer April 30, 2009.


 

















 


1.                                       Section 6.17
– Minimum Consolidated Tangible Net Worth(7)


 


	
  (a)

  	
  Shareholders’ Equity of the Parent and its Subsidiaries on the date
  hereof

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
  the Intangible Assets of the Parent and its Subsidiaries on the date
  hereof

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
  assets that are the result of non-cash gains or adjustments under
  FASB Statement 133 as a result of changes in the fair market value of
  derivatives

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
  liabilities that are the result of non-cash losses or adjustments
  under FASB Statement 133 as a result of changes in the fair market value of
  derivatives

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (e)

  	
  any Accounts due from any Affiliates (other than Subsidiaries) of the
  Parent

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (f)

  	
  Preferred Stock Adjustment

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (g)

  	
  the book value of customer accounts

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (h)

  	
  gains or losses for the 12-month period ending as of the date hereof
  from settled financial hedges with a term of one year or less for inventory
  before it is sold to customers

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  non-cash compensation expenses from July 1, 2006 through such
  date to the extent included in the calculation of Consolidated Net Income for
  such period

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (j)

  	
  an amount equal to any non-cash negative impact on earnings from the
  write down of inventory during such period due to the application of the
  weighted average cost method of inventory valuation for natural gas for the
  12-month period ending on such date

  	
   

  	
  $

  



 






(7) For month end and annual
certificates.


 

















 


	
  (k)

  	
  an amount equal to any non-cash positive impact on earnings from the
  write up of inventory during such period due to the application of weighted
  average cost method of inventory valuation for natural gas for the 12-month
  period ending on such date

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (l)

  	
  an amount equal to any non-cash negative impact on earnings from the
  write down of inventory as a result of a lower of cost or market valuation
  for the 12-month period ending on such date

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  Consolidated Tangible Net Worth = (a) - (b) - (c) + (d) -
  (e) [+ or -] (f) + (g) + loss and – gains (h) + (i) +
  (j) – (k) +(l)(8)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  Minimum Consolidated Tangible Net Worth permitted
  under Section 6.17 of the Credit Agreement:

  	
   

  	
  $                  (9)

  
	
   

  	
   

  	
   

  	
   

  
	
  Compliance

  	
   

  	
  Yes        No

  



 






(8) The aggregate amount of any
increase in Consolidated Tangible Net Worth from clauses (j) through (l) above
during such period is limited to the amount of positive mark-to-market value as
of the end of such period, if any, of the Borrowers' natural gas hedges which
were entered into to hedge the inventory subject to such adjustments.


 


(9) The sum of (a)(i)
$25,000,000.00 during October, November, and December 2008 and January, June,
and July 2009 and (ii) $30,000,000.00 during February, March, April, and May
2009, plus (b) an amount equal to 50% of the sum of (i) the positive
year-to-date Consolidated Net Income (plus, to the extent deducted from
Consolidated Net Income, non-cash compensation expenses) through such date and
(ii) other than for the then current fiscal year, the positive Consolidated Net
Income (plus, to the extent deducted from Consolidated Net Income, non-cash
compensation expenses) for each full fiscal year ending on and after June 30,
2009 and (c) an amount equal to 100% of the net proceeds from any equity issued
by the Parent; plus (d) an amount equal to any increase in Consolidated
Tangible Net Worth resulting from a conversion of Bridge Obligations to
preferred stock in the Parent, or resulting from a conversion of such preferred
stock in the Parent to other Equity Interests in the Parent.


 

















 


2.                                       Section 6.18
– Minimum Consolidated Working Capital(10)


 


	
  (a)

  	
  Consolidated Current Assets of the Parent

  	
  $

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  non-cash assets under FASB 133

  	
  $

  
	
   

  	
   

  	
   

  
	
  (c)

  	
  any Accounts due from any Affiliates (other than any Subsidiary) of
  the Parent

  	
  $

  
	
   

  	
   

  	
   

  
	
  (d)

  	
  Consolidated Current Liabilities of the Parent

  	
  $

  
	
   

  	
   

  	
   

  
	
  (e)

  	
  non-cash obligations under FASB 133

  	
  $

  
	
   

  	
   

  	
   

  
	
  (f)

  	
  any Accounts due from any Affiliates (other than any Subsidiary) of
  the Parent

  	
  $

  
	
   

  	
   

  	
   

  
	
  (g)

  	
  any applicable Preferred Stock Adjustment to current liabilities

  	
  $

  
	
   

  	
   

  
	
  Consolidated Working Capital = [(a) -
  (b) - (c)] - [(d) - (e) - (f)]+ (g)

  	
  $

  
	
   

  	
   

  
	
  Minimum Consolidated Working Capital
  permitted under Section 6.18 of the Credit Agreement:

  	
  $ 127,500,000.00

  
	
   

  	
   

  
	
  Compliance

  	
  Yes        No

  



 






(10) For month end and annual
certificates.


 

















 


	
  3.

  	
  Section 6.19 — Maximum Aggregate Negative EBITDA.(11)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
  Consolidated EBITDA for the three-month period ending the date hereof
  (from Attachment 1)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
  Borrowing Base Availability

  	
   

  	
  [Month
  1]

  	
   

  	
  [Month
  2]

  	
   

  	
  [Month
  3]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  Borrowing Base as of the end of the most recent three months

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  outstanding Revolving Advances as of the end of the most recent three
  months

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  Letter of Credit Exposure as of the end of the most recent three
  months

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Borrowing Base Availability = (i) - (ii) - (iii)

  	
   

  	
  $

  	
   

  	
  $ 

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Maximum aggregate negative Consolidated EBITDA permitted under
  Section 6.19 of Credit Agreement during

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a) the three-month period ending September 30, 2008

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  -$  5,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b) the three-month period ending October 31, 2008

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  -$  3,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c) any consecutive three-month period beginning with the first
  full month before any day on which Borrowing Base Availability is less than
  $30,000,000.00 and continuing for each three-month period thereafter until
  the Borrowing Base Availability is more than $30,000,000.00 for three
  consecutive months ending thereafter

  	
   

  	
  -$ 2,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Compliance

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Yes        No

  	
   

  



 






(11) For month end and annual
certificates.


 

















 


4.                                       Section 6.20
– Interest Coverage Ratio.(12)


 


	
  (a)

  	
  Consolidated EBITDA for the twelve-month period ending the date hereof
  (from Attachment 1)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
  interest expense net of interest income of the Parent and its
  Subsidiaries calculated on a consolidated basis in accordance with GAAP for
  the twelve-month period ending the date hereof

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
  the amortization of upfront fees and discounts paid in connection
  with the Credit Agreement, the Existing Credit Agreement, the First Amended
  and Restatated Credit Agreement dated as of August 1, 2006 among the
  Borrowers, the Guarantors, the lenders party thereto, and the Administrative
  Agent, the Senior Notes, the Master Transaction Agreement dated as of
  August 1, 2006 between MxEnergy and SG, and the renewal and replacement
  of the Master Transaction Agreement

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  Interest Coverage Ratio = (a) divided
  by [(b) – (c)]

  	
   

  	
                            

  
	
   

  	
   

  	
   

  	
   

  
	
  Minimum Interest Coverage Ratio permitted
  under Section 6.20 of the Credit Agreement:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  From September 1, 2008 through
  November 30, 2008

  	
   

  	
  1.60 to 1.00

  
	
   

  	
   

  	
   

  
	
  From December 1, 2008 through
  December 31, 20008

  	
   

  	
  1.50 to 1.00

  
	
   

  	
   

  	
   

  
	
  From January 1, 2009 through the
  Maturity Date

  	
   

  	
  1.35 to 1.00

  
	
   

  	
   

  	
   

  	
   

  
	
  Compliance

  	
   

  	
  Yes        No

  



 






(12) For month end and annual
certificates.


 

















 


5.                                       Section 6.21
— Average Leverage Ratio.(13)


 


	
  (a)

  	
  Total Funded Debt based on the month-end average for the last twelve
  months most recently ended (from Attachment 1)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
  Consolidated EBITDA for the twelve-month period ending the date
  hereof (from Attachment 1)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  Average Leverage Ratio = (a) divided
  by (b)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Maximum Average Leverage Ratio permitted
  under Section 6.21 of the Credit Agreement:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (1) From September 1, 2008
  through September 30, 2008

  	
   

  	
  4.50 to 1.00

  
	
  (2) From October 1, 2008 through
  January 31, 2009

  	
   

  	
  4.00 to 1.00

  
	
  (3) From February 1, 2009 through
  the Maturity Date

  	
   

  	
  3.75 to 1.00

  
	
   

  	
   

  	
   

  
	
  Compliance

  	
   

  	
  Yes        No

  



 






(13) For month end and annual
certificates.


 

















 


6.                                       Section 6.22
– Monthly Leverage Ratio.(14)


 


	
  (a)

  	
  Total Funded Debt as of the date hereof

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
  Consolidated EBITDA for the twelve-month period ending the date hereof
  (from Attachment 1)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  
	
  Monthly Leverage Ratio = (a) divided
  by (b)

  	
   

  	
                      

  
	
   

  	
   

  	
   

  	
   

  
	
  Maximum Monthly Leverage Ratio permitted
  under Section 6.22 of the Credit Agreement:

  	
   

  	
  4.50 to 1.00

  
	
   

  	
   

  	
   

  	
   

  
	
  Compliance

  	
   

  	
  Yes        No

  



 






(14) For all certificates


 

















 


7.                                       [Section 6.24
– Minimum Cash Requirement](15)


 


	
  (a) Cash on hand

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (b) Revolving Advances outstanding

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (c) Bridge Loans outstanding

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Net Cash         =         (a) –
  (b) – (c)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Minimum Cash Requirement

  	
   

  	
  $ 40,000,000.00

  
	
   

  	
   

  	
   

  
	
  Compliance

  	
   

  	
  Yes        No

  



 






(15) For certificates dated on or after
April 30, 2009.


 

















 


                                                IN
WITNESS WHEREOF, I have hereto signed my name to this Compliance Certificate as
of                           ,
              .


 


	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


ATTACHMENT 1 to


COMPLIANCE CERTIFICATE


 


	
  [For Month Ended

  	
  ]

  
	
  [For Fiscal Year Ended

  	
  ]

  



 


Consolidated EBITDA and Month-End Average of
Total Funded Debt by Month


 


	
  Month Ending

  	
   

  	
  Consolidated EBITDA

  	
   

  	
  Month-End Total Funded

  Debt

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
  [month
  ending on the date hereof]

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
  Sum of
  Consolidated EBITDA for the three-month period ending on the date hereof:

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
  Sum of
  Consolidated EBITDA for the twelve-month period ending on the date hereof:

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
  Average of
  month-end Total Funded Debt for the twelve-month period ending on the date
  hereof:

  	
   

  	
   

  	
   

  	
  $

  	
   

  



 
















 


EXHIBIT D


 


LETTER OF CREDIT REQUEST


 


[Date]


 


Société Générale, as Administrative
Agent


1221 Avenue of the Americas, 12th Floor


New York, New York  10020


 


Attention:  Mario Cortinhal


 


Ladies and Gentlemen:


 


MxEnergy Inc., a Delaware corporation, and MxEnergy Electric Inc., a
Delaware corporation (each individually, a “Borrower” and collectively,
the “Borrowers”), MxEnergy Holdings Inc. and certain subsidiaries
thereof, the lenders from time to time party thereto (the “Lenders”),
and Société Générale, as administrative agent for the Lenders (the “Administrative
Agent”), are parties to that certain Third Amended and Restated Credit
Agreement dated as of November 17, 2008 (as the same may be amended,
modified or supplemented from time-to-time, the “Credit Agreement”, the
defined terms of which are used in this Letter of Credit Request unless
otherwise defined in this Letter of Credit Request).  The undersigned hereby gives you irrevocable
notice pursuant to Section 2.14(a) of the Credit Agreement that the undersigned
hereby requests a Letter of Credit, and in connection with that request sets
forth below the information relating to such Letter of Credit (the “Proposed
Issuance”) as required by Section 2.14(a)(iv) of the Credit
Agreement:


 


(a)           The undersigned Borrower
requests an [issuance] [increase] [extension] of a Letter of Credit.  [The Letter of Credit to be [increased before
giving effect to the increase] [extended] is in the face amount of
$                    
and evidenced by Letter of Credit number               .]


 


(b)           The beneficiary is
                                                  .


 


(c)           [The face amount of the
Letter of Credit being [issued] [increased after giving effect to the increase]
is
$                          .]


 


(d)           The Business Day of the
Proposed Issuance is
                            .


 


(e)           [The expiration date of
the Letter of Credit as [issued] [extended] is
                          .]


 


(f)            The form of the
proposed Letter of Credit is attached as Exhibit A.


 


(g)           The Letter of Credit is a [Supplier Letter
of Credit, including a Qualifying Supplier Letter of Credit] [Non-Supplier
Letter of Credit].


 

















 


The undersigned Borrower hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Issuance:


 


(i)            the representations and warranties
contained in Article IV of the Credit Agreement and each of the other Loan
Documents are true and correct in all material respects, on and as of the date
of the Proposed Issuance, before and after giving effect to such Proposed
Issuance, as though made on and as of the date of the Proposed Issuance (unless
such representations and warranties are stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date);


 


(ii)           no Default or Event of Default has occurred
and is continuing, or would result from such Proposed Issuance;


 


(iii)          after giving effect to such Proposed
Issuance, the aggregate outstanding principal amount of the sum of all
Revolving Advances plus the Letter of Credit Exposure will not exceed the
lesser of (1) the aggregate amount of the Revolving Commitments and (2) the
Borrowing Base; and


 


(iv)          no material adverse change has occurred and
is continuing with respect to the Collateral taken as a whole detailed in the
Borrowing Base Report most recently delivered to the Administrative Agent.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [MXENERGY INC.]

  
	
   

  	
  [MXENERGY ELECTRIC INC.]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT A


TO LETTER OF CREDIT REQUEST


 


Form of Proposed Letter of Credit


 


See attached.


 

















 


EXHIBIT E-1


 


FORM OF REVOLVING NOTE


 


	
  $

  	
  , 20     

  



 


For value received, the undersigned MXENERGY INC., a Delaware corporation,  and MXENERGY
ELECTRIC INC., a Delaware corporation (each, a “Borrower” and
collectively, the “Borrowers”), hereby jointly and severally promise to pay to
the order of                                               
(“Payee”) the aggregate principal amount of
                                                                  
Dollars ($                        )
or, if less, the aggregate outstanding principal amount of the Revolving
Advances (as defined in the Credit Agreement referred to below) made by the
Payee to the Borrowers, together with interest on the unpaid principal amount
of the Revolving Advances from the date of such Revolving Advances until such
principal amount is paid in full, at such interest rates, and at such times, as
are specified in the Credit Agreement (as hereunder defined).  The Borrowers may make prepayments on this
Revolving Note in accordance with the terms of the Credit Agreement.


 


This Revolving Note is one of the Revolving
Notes referred to in, and is entitled to the benefits of, and is subject to the
terms of, the Third Amended and Restated Credit Agreement dated as of November 17,
2008 (as the same may be amended or modified from time to time, the “Credit
Agreement”), among the Borrowers, MxEnergy Holdings Inc. and certain
subsidiaries thereof, the lenders party thereto (the “Lenders”), and Société
Générale, as administrative agent (the “Administrative Agent”) for the Lenders.
Capitalized terms used in this Revolving Note that are defined in the Credit
Agreement and not otherwise defined in this Revolving Note have the meanings
assigned to such terms in the Credit Agreement. 
The Credit Agreement, among other things, (a) provides for the
making of the Revolving Advances by the Payee to the Borrowers in an aggregate
amount not to exceed at any time outstanding the Dollar amount first above
mentioned, the indebtedness of the Borrowers resulting from each such Revolving
Advance being evidenced by this Revolving Note, and (b) contains
provisions for acceleration of the maturity of this Revolving Note upon the
happening of certain events stated in the Credit Agreement and for prepayments
of principal prior to the maturity of this Revolving Note upon the terms and
conditions specified in the Credit Agreement.


 


Both principal and interest are payable in
lawful money of the United States of America to the Administrative Agent at the
location or address specified by the Administrative Agent to the Borrowers in
same day funds.  The Payee shall record
payments of principal made under this Revolving Note, but no failure of the
Payee to make such recordings shall affect the Borrowers’ repayment obligations
under this Revolving Note.


 


This Revolving Note is secured by the
Security Documents and guaranteed pursuant to the terms of Article VIII of
the Credit Agreement.


 


Except as specifically provided in the Credit
Agreement, each Borrower hereby waives presentment, demand, protest, notice of
intent to accelerate, notice of acceleration, and any other notice of any
kind.  No failure to exercise, and no
delay in exercising, any rights hereunder on the part of the holder of this
Revolving Note shall operate as a waiver of such rights.


 

















 


THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


 


	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT F


 


NOTICE OF BORROWING


 


[Date]


 


Société Générale, as Administrative
Agent


1221 Avenue of the Americas, 12th Floor


New York, New York  10020


 


Attention:  Sylvia Pace


 


Ladies and Gentlemen:


 


MxEnergy Inc., a Delaware corporation, and MxEnergy Electric Inc., a
Delaware corporation (each individually, a “Borrower” and collectively,
the “Borrowers”), MxEnergy Holdings Inc. and certain subsidiaries
thereof, the lenders from time to time party thereto (the “Lenders”),
and Société Générale, as administrative agent for the Lenders (the “Administrative
Agent”), are parties to that certain Third Amended and Restated Credit
Agreement dated as of November 17, 2008 (as the same may be amended,
modified or supplemented from time-to-time, the “Credit Agreement”, the
defined terms of which are used in this Notice of Borrowing unless otherwise
defined in this Notice of Borrowing). 
The undersigned hereby gives you irrevocable notice pursuant to Section 2.02(a) of
the Credit Agreement that the undersigned hereby requests a Revolving
Borrowing, and in connection with that request sets forth below the information
relating to such Revolving Borrowing (the “Proposed Revolving Borrowing”)
as required by Section 2.02(a) of the Credit Agreement:


 


(g)           The Business Day of the
Proposed Revolving Borrowing is
                          ,
          .


 


(h)           The Proposed Revolving
Borrowing is a [Base Rate Advance][Eurodollar Advance].


 


(i)            The aggregate amount
of the Proposed Revolving Borrowing is
$                        .


 


(j)            [The Interest Period
for each Eurodollar Rate Advance made as part of the Proposed Revolving
Borrowing is one month.]


 


The undersigned Borrower hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Revolving Borrowing:


 


(i)            the representations and warranties
contained in Article IV of the Credit Agreement and each of the other Loan
Documents are true and correct in all material respects, on and as of the date
of the Proposed Revolving Borrowing, before and after giving effect to such
Proposed Revolving Borrowing and to the 


 

















 


application of the proceeds therefrom, as
though made on and as of the date of the Proposed Revolving Borrowing (unless
such representations and warranties are stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date);


 


(ii)           no Default or Event of Default has occurred
and is continuing, or would result from such Proposed Revolving Borrowing or
from the application of the proceeds therefrom;


 


(iii)          after giving effect to such Proposed
Revolving Borrowing, the sum of the aggregate outstanding principal amount of
all Revolving Advances plus the Letter of Credit Exposure will not exceed the
lesser of (1) the aggregate amount of the Revolving Commitments and (2) the
Borrowing Base;


 


(iv)          after giving effect to such Proposed Revolving
Borrowing, the aggregate outstanding principal amount of the sum of all
Revolving Advances will not exceed $20,000,000; and


 


(v)           no material adverse change has occurred and
is continuing with respect to the Collateral taken as a whole detailed in the Borrowing
Base Report most recently delivered to the Administrative Agent.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [MXENERGY INC.]

  
	
   

  	
  [MXENERGY ELECTRIC INC.]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT G


 


NOTICE OF CONVERSION OR CONTINUATION


 


[Date]


 


Société Générale, as Administrative
Agent


1221 Avenue of the Americas, 12th
Floor


New York, New York  10020


 


Attention:  Sylvia Pace


 


Ladies and Gentlemen:


 


MxEnergy Inc., a Delaware corporation, and MxEnergy Electric Inc., a
Delaware corporation (each individually, a “Borrower” and collectively,
the “Borrowers”), MxEnergy Holdings Inc. and certain subsidiaries
thereof, the lenders from time to time party thereto (the “Lenders”),
and Société Générale, as administrative agent for the Lenders (the “Administrative
Agent”), are parties to that certain Third Amended and Restated Credit
Agreement dated as of November 17, 2008 (as the same may be amended,
modified, or supplemented from time-to-time, the “Credit Agreement”, the
defined terms of which are used in this Notice of Conversion or Continuation
unless otherwise defined in this Notice of Conversion or Continuation).  The undersigned hereby gives you irrevocable
notice pursuant to Section 2.02(b) of the Credit Agreement that the
undersigned hereby requests a [Conversion] [Continuation] of outstanding
Revolving Advances, and in connection with that request sets forth below the
information relating to such Borrowing (the “Proposed Borrowing”) as
required by Section 2.02(b) of the Credit Agreement:


 


(a)           The Business Day of the Proposed Borrowing
is
                        , 
        .


 


(b)           The aggregate amount of the existing
Revolving Advance to be Converted or Continued is $
              
and is a [Base Rate Advance][Eurodollar Advance] (“Existing Advance”).


 


(c)           The Proposed Borrowing consists of [a
Conversion of the Existing Advance to a [Base Rate Advance] [Eurodollar
Advance]] [a Continuation of the Existing Advance].


 


[(d)          The Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is one month.]


 


The undersigned Borrower hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:


 


(i)            the representations and warranties
contained in Article IV of the Credit Agreement, and each of the other
Loan Documents are true and correct in 


 

















 


all material respects on and as of the date
of the Proposed Borrowing, before and after giving effect to such Proposed
Borrowing and to the application of the proceeds therefrom, as though made on and
as of the date of the Proposed Borrowing (unless such representations and
warranties are stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date);


 


(ii)           no Default or Event of Default has occurred
and is continuing or would result from such Proposed Borrowing or from the
application of the proceeds therefrom;


 


(iv)          after giving effect to such Proposed
Borrowing, the sum of the aggregate outstanding principal amount of all
Revolving Advances plus the Letter of Credit Exposure will not exceed the
lesser of (1) the aggregate amount of the Revolving Commitments and (2) the
Borrowing Base;


 


(v)           after giving effect to such Proposed
Revolving Borrowing, the aggregate outstanding principal amount of the sum of
all Revolving Advances will not exceed $20,000,000; and


 


(vi)          no material adverse change has occurred and
is continuing with respect to the Collateral taken as a whole detailed in the
Borrowing Base Report most recently delivered to the Administrative Agent.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [MXENERGY INC.]

  
	
   

  	
  [MXENERGY ELECTRIC INC.]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT K


 


RISK MANAGEMENT POLICY CERTIFICATION


 


This certificate dated as of
                            ,
              
is prepared pursuant to Section 5.06(f) of the Third Amended and
Restated Credit Agreement dated as of November 17, 2008 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”)
among MxEnergy Inc., a Delaware corporation, and MxEnergy Electric Inc., a
Delaware corporation (each individually, a “Borrower” and collectively,
the “Borrowers”), MxEnergy Holdings Inc. and certain subsidiaries
thereof, the lenders from time to time party thereto (the “Lenders”),
and Société Générale, as administrative agent for the Lenders (the “Administrative
Agent”).  Unless otherwise defined in
this certificate, capitalized terms that are defined in the Credit Agreement
shall have the meanings assigned to them by the Credit Agreement.


 


Each of the Borrowers hereby certifies [(a)]
that such Borrower is in compliance with such Borrower’s Risk Management Policy
delivered on the Closing Date, as it may have been amended by any amendments
thereto approved by the Majority Lenders after the Closing Date [and (b) attached
hereto as Exhibit A is a true and complete copy of a monthly
comprehensive risk management report, setting forth the Borrowers’ overall
hedging positions, forward book, inventory positions, and transportation and
storage capacities] [and (c) attached is (i) a description of a
modification of the Risk Management Policy and (ii) a copy of such
modification [as approved by the Majority Lenders after the Closing Date] [
which does not materially change the Risk Management Policy]].


 


EXECUTED and DELIVERED as of the date first
above written.


 


 


	
   

  	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT A


To Risk Management Policy Certification


 


MONTHLY RISK MANAGEMENT REPORT


 


See attached.


 
















 


Schedule 1.01(a) – Tier II
Eligible Exchange Accounts


 


Eligible accounts whose balances may be greater than $500,000 in a
reporting period:


 


	
  Name

  	
   

  	
  Address

  	
   

  	
  Limit Requested

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Defense Energy Support Center DESC-AWP



  *This is a US government contract.

  	
   

  	
  8725 John Kingman Road

  Fort Belvoir, VA 22060-6222

  	
   

  	
  $

  	
  5,200,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UBS AG

  	
   

  	
  677 Washington Blvd.

  Stamford, CT 60901

  	
   

  	
  $

  	
  4,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New York Organic Fertilizer Co.



  *Parent
  company is Synagro (Nasdaq – SYGR)

  	
   

  	
  1108 Pak Point Avenue

  Bronx, NY 10474

  	
   

  	
  $

  	
  1,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UCMT U.S. Postal Service



  *This
  is a US government contract

  	
   

  	
  Deborah Wilcox-Loos,

  CEP, C.P.M.

  Utilities Team Lead

  United States Postal Service

  8 Griffin Road North Windsor,

  CT 06095-1572

  	
   

  	
  $

  	
  1,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  State of Georgia

  	
   

  	
  1180 E. Broad St.

  Chicopee Bldg Athens,

  GA 30602

  	
   

  	
  $

  	
  1,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SUNY Brooklyn



  *Contract
  is with the State of New York.

  	
   

  	
  450 Clarkson Avenue

  PO Box 13

  Brooklyn, NY 11203

  	
   

  	
  $

  	
  1,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SUNY Stony Brook



  *Contract
  is with the State of New York.

  	
   

  	
  SUNY at Stony Brook Service Building

  Stony Brook, NY 11794

  	
   

  	
  $

  	
  1,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pepsi Co Inc Quaker Oats Plant

  	
   

  	
  P.O. Box 2420 Mailstop#

  MS-1514 Spokane, WA 99210

  	
   

  	
  $

  	
  1,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Grady Memorial Hospital/Fulton Dekalb

  	
   

  	
  P.O. Box 11586 Atlanta,

  GA 30355

  	
   

  	
  $

  	
  1,000,000

  	
   

  



 

















 


Tier II Account Party where the aggregate of all Eligible Accounts are
greater than $500,000 in a reporting period (all
Non-Guaranteed):


 


	
  Nicor Gas

  	
   

  
	
   

  	
   

  
	
  Keyspan (LI and NYC)

  	
   

  
	
   

  	
   

  
	
  Baltimore Gas & Electric

  	
   

  
	
   

  	
   

  
	
  Columbia Gas of Maryland

  	
   

  
	
   

  	
   

  
	
  Elizabethtown Gas

  	
   

  
	
   

  	
   

  
	
  Atlanta Gas & Light

  	
   

  
	
   

  	
   

  
	
  ERCOT

  	
   

  
	
   

  	
   

  
	
  Mass Electric (MECO)

  	
   

  



 

















 


Schedule 1.01(b) – Guarantors


 


MXenergy Holdings Inc.


 


MXenergy Capital Holdings Corp.


 


MXenergy Capital Corp.


 


MXenergy Gas Capital Corp.


 


MXenergy Gas Capital Holdings Corp.


 


MXenergy Electric Capital Corp.


 


MXenergy Electric Capital Holdings Corp.


 


MXenergy Services Inc.


 


Online Choice Inc.


 


Infometer.com Inc.


 

















 


Schedule 1.01(c) – LDCs


 


	
  Terasen Gas (British Columbia)

  	
  Gas

  	
   

  
	
  Enbridge Inc. (Ontario)

  	
  Gas

  	
   

  
	
  Florida City Gas

  	
  Gas

  	
   

  
	
  Peoples Gas/Tampa Electric Co.

  	
  Gas

  	
   

  
	
  Atlanta Gas Light Company

  	
  Gas

  	
   

  
	
  Nicor, Inc.

  	
  Gas

  	
   

  
	
  Northern Indiana Public Service Co.

  	
  Gas

  	
   

  
	
  Columbia Gas of Kentucky

  	
  Gas

  	
   

  
	
  Baltimore Gas & Electric Company

  	
  Gas

  	
   

  
	
  Columbia Gas of Maryland

  	
  Gas

  	
   

  
	
  Michigan Consolidated Gas Co.

  	
  Gas

  	
   

  
	
  Consumer’s Energy Company

  	
  Gas

  	
   

  
	
  Elizabeth Town NUI

  	
  Gas

  	
   

  
	
  South Jersey Gas

  	
  Gas

  	
   

  
	
  New Jersey Natural Gas

  	
  Gas

  	
   

  
	
  Public Service Electric and Gas

  	
  Gas

  	
   

  
	
  Central Hudson Gas & Electric Corporation

  	
  Gas

  	
   

  
	
  Consolidated Edison Company of New York, Inc.

  	
  Gas

  	
   

  
	
  Keyspan Energy Long Island

  	
  Gas

  	
   

  
	
  Keyspan Energy New York

  	
  Gas

  	
   

  
	
  National Fuel Gas Company

  	
  Gas

  	
   

  
	
  Orange and Rockland

  	
  Gas

  	
   

  
	
  Rochester Gas and Electric

  	
  Gas

  	
   

  
	
  Columbia Gas of Ohio

  	
  Gas

  	
   

  
	
  Dominion East Ohio

  	
  Gas

  	
   

  
	
  Dominion East Ohio—West

  	
  Gas

  	
   

  
	
  Vectren Energy/Delivery of Ohio

  	
  Gas

  	
   

  
	
  Columbia Gas of Pennsylvania

  	
  Gas

  	
   

  
	
  Chattanooga Gas Company

  	
  Gas

  	
   

  
	
  Connecticut Light & Power

  	
  Electric

  	
   

  
	
  United Illuminating

  	
  Electric

  	
   

  
	
  Western Massachusetts Electric Company

  	
  Electric

  	
   

  
	
  National Grid/Massachusetts Electric Company

  	
  Electric

  	
   

  
	
  Central Hudson Gas & Electric Corporation

  	
  Electric

  	
   

  
	
  Consolidated Edison Company of New York Inc.

  	
  Electric

  	
   

  
	
  National Grid/Niagara Mohawk

  	
  Electric

  	
   

  
	
  Orange and Rockland

  	
  Electric

  	
   

  
	
  Rochester Gas and Electric

  	
  Electric

  	
   

  
	
  AEP Texas Central Company

  	
  Electric

  	
   

  
	
  AEP Texas North Company

  	
  Electric

  	
   

  
	
  Centerpoint Energy Houston Electric

  	
  Electric

  	
   

  
	
  Nueces Electric Coop Inc. Pilot TDSP

  	
  Electric

  	
   

  
	
  Oncor Electric Delivery Company

  	
  Electric

  	
   

  
	
  Texas-New Mexico Power Co. (TDSP)

  	
  Electric

  	
   

  



 

















 


Schedule 1.01(d) – Fees and Expenses Associated with Letters
of Credit of Debt


 


Bank
Syndicate Upfront Fee (75bps)


SG
Administrative Fee


Associated
Legal Fees


Fairness
Opinion Professional Fee


Incremental
Hedge Provider Costs (Puts)


Bridge
Loan Upfront Fee (200bps)


Financial
Advisory Professional Fee


 

















 


Schedule 1.01(e) – Material Contracts


 


Amended and Restated Loan Agreement between Denham
Commodity Partners Fund LP (f/k/a Sowood Commodity Partners Fund LP f/k/a
Lathi, LLC) and MXenergy Inc. dated November 14, 2003, as amended by
Amendment No. 1 dated March 25, 2004, Amendment No. 2 to Amended
and Restated Security Agreement dated July 25, 2006, Amendment No. 3
to Amended and Restated Loan Agreement dated July 25, 2006, Amendment No. 4
to Amended and Restated Loan Agreement dated January 9, 2008, and
Amendment No. 5 to Amended and Restated Loan Agreement dated as of November 17,
2008.


 


Form of Service Agreement for Small Volume
Aggregation Service Rate Schedule between Columbia Gas of Kentucky, Inc.
and MXenergy Inc. dated April 1, 2005.


 


Accounts Receivable Purchase Agreement between
Columbia Gas of Kentucky, Inc. and MXenergy Inc. dated November 1,
2005.


 


Billing Agent Agreement between Baltimore Gas and
Electric Company and MXenergy Inc., dated as of October 26, 1999.


 


Service Agreement between The East Ohio Gas Company
d/b/a Dominion East Ohio and MXenergy Inc., dated as of December 22, 2003.


 


Billing Agreement (Option 2) between The East Ohio
Gas Company d/b/a Dominion East Ohio and MXenergy Inc. dated December 22,
2003.


 


Customer Information Agreement between The East Ohio
Gas Company d/b/a Dominion East Ohio and MXenergy Inc. dated October 06,
2004.


 


Accounts Receivable Purchase Agreement between
Columbia Gas of Pennsylvania, Inc. and MXenergy Inc. dated October 1,
2001.


 


Requirements Aggregation Service Agreement between
Columbia Gas of Ohio, Inc. and MXenergy Inc. dated August 8, 2005.


 


Accounts Receivable Purchase Agreement between
Columbia Gas of Ohio, Inc. and MXenergy Inc. dated August 8, 2005.


 


Authorized Gas Supplier Agreement between Consumers
Energy Company and MXenergy Inc. dated January 15, 2002, as amended by
Amendment No. 1 dated April 1, 2003, Amendment No. 2 dated as of
March 31, 2005, and Amendment No. 3 dated March 32, 2007.


 


MXenergy Authorized Gas Supplier Agreement between
Michigan Consolidated Gas Company and MXenergy Inc. dated April 1, 2008.


 


Supplier Aggregation Service Agreement between
Northern Indiana Public Service Company and MXenergy Inc. dated December 1,
2006.


 


Accounts Receivable Purchase Agreement between
Northern Indiana Public Service Company and MXenergy Inc. dated October 7,
2002.


 

















 


Service Agreement Gas Distribution Access Rule between
Union Gas and MXenergy Inc., dated as of January 10, 2008.


 


Service Agreement Gas Distribution Access Rule between
Enbridge Gas Distribution Inc. and MXenergy Inc. dated February 7, 2007,
as amended by the parties on December 11, 2007.


 


Firm Delivery and Operational Balancing Agreement
between Peoples Gas System, a division of Tampa Electric Company, and MXenergy
Inc. (successor to Total Gas & Electric, Inc.), dated as of November 1,
2000.


 


Master Capacity Release Agreement between Peoples
Gas System, a division of Tampa Electric Company, and MXenergy Inc. (parent of
Total Gas & Electric, Inc.), dated as of November 1, 2000.


 


Agreement for Billing Services and for the Purchase
of Accounts Receivable between Niagara Mohawk Power Corporation and MXenergy
Inc. dated as of May 16, 2006.


 


Agreement for Billing Services and for the Purchase
of Accounts Receivable between Niagara Mohawk Power Corporation and MXenergy
Electric Inc. dated as of May 31, 2006.


 


Third Party Supplier Agreement between Public
Service Electric and Gas Company and MXenergy Inc. dated April 07, 2005.


 


Marketer and Broker Service Agreement between New
Jersey Natural Gas Company and MXenergy Inc., dated October 03, 2005.


 


Agreement for Billing and Collection Services
between New Jersey Natural Gas Company and MXenergy Inc. dated October 03,
2005.


 


Services Agreement between South Jersey Gas Company
and MXenergy Inc. dated as of July 28, 2008.


 


Supplier Aggregation Agreement between Northern
Illinois Gas Company d/b/a Nicor Gas Company and MXenergy Inc. dated January 24,
2002.


 


Nicor Gas Consolidated Billing Services Agreement
between Northern Illinois Gas Company, d/b/a Nicor Gas Company, and MXenergy
Inc., dated as of March 1, 2002.


 


Base Contract for Short-Term
Sale and Purchase of Natural Gas between The Brooklyn Union Gas Company d/b/a
Keyspan Energy Delivery New York and MXenergy Inc. (parent of Total Gas &
Electric, Inc.) dated October 15, 2002.


 


Service Agreement for
Supplier Transportation, Balancing and Aggregation, Under Service
Classification No. 19 between National Fuel Gas and MXenergy Inc. dated April 1,
2005.


 


Billing Services Agreement
for Consolidated Billing Service Under Service Classification No. 19
between National Fuel Gas and MXenergy Inc. dated November 29, 2005.


 


Core Gas Aggregation Service
Agreement between Pacific Gas and Electric Company and MXenergy Inc. dated as
of October 1, 2008 (pending fully executed Agreement from LDC).


 


Consolidated Billing
Authorization Form between Pacific Gas and Electric Company and MXenergy
Inc. dated as of October 1, 2008 (pending fully executed Agreement from
LDC).


 

















 


Master Power Purchase and
Sale Agreement between DTE Energy Trading, Inc. and MXenergy Electric Inc.
dated March 8, 2005.


 


Operating Agreement between
DTE Energy Trading, Inc. and MXenergy Electric Inc., dated as of March 8,
2005.


 


Security Agreement dated March 8,
2005 between MXenergy Electric Inc. and DTE Energy Trading, Inc. dated March 8,
2005.


 


ESCO Operating Agreement
dated July 14, 2006 between Orange and Rockland Utilities, Inc. and
MXenergy Electric Inc.


 


Consolidated Billing and
Assignment Agreement dated July 12, 2007 between Orange and Rockland
Utilities, Inc. and MXenergy Electric Inc.


 


Consolidated Billing and
Assignment Agreement dated July 12, 2007 between Orange and Rockland
Utilities, Inc. and MXenergy Inc.


 


Application Form for
Qualified Seller Service, Service Classification No. 11 between Orange and
Rockland Utilities, Inc. and MXenergy Inc. dated April 4, 2005.


 


Letter Agreement between
Greenhill & Co., LLC and MXenergy, Inc. dated October 30,
2007 regarding the provision of strategic and financial advisory services to
MXenergy Inc. in connection with potential acquisitions.


 


Letter Agreement between
Greenhill & Co., LLC and MXenergy, Inc. dated May 1, 2007
regarding the provision of financial advisory services to MXenergy Inc. in
connection with potential transactions.


 


Letter Agreement between RBC
Capital Markets Corporation and MXenergy, Inc. dated June 30, 2008
regarding the provision to act as a placement agent to MXenergy in with respect
to a Private Placement.


 


Third Party Supplier Service
Agreement between NUI/Elizabethtown Gas Company and MXenergy Inc. dated May 17,
2002.


 


Competitive Electric
Supplier Service Agreement between Massachusetts Electric Company and MXenergy
Electric Inc. dated September 3, 2004.


 


Competitive Electric
Supplier Service Agreement between Western Massachusetts Electric Company and
MXenergy Electric Inc. dated September 21, 2007.


 


Electric Supplier Service
Agreement between Connecticut Light and Power Company and MXenergy Electric
Inc. dated as of September 21, 2007.


 


Electric Supplier Service
Agreement between The United Illuminating Company, a specially chartered
Connecticut corporation and MXenergy Electric Inc. dated as of March 27,
2007.


 


Operating Agreement between
Rochester Gas and Electric and MXenergy Inc. dated April 4, 2005.


 


Billing Services Agreement
between Rochester Gas and Electric and MXenergy Inc. dated May 17, 2005.


 

















 


Operating Agreement between
Rochester Gas and Electric and MXenergy Electric Inc. dated April 1, 2005.


 


Billing Services Agreement
between Rochester Gas and Electric and MXenergy Electric Inc. dated April 1,
2005.


 


Operating Agreement between
New York State Electric and Gas Corporation and MXenergy Inc. dated March 30,
2005.


 


Billing Services Agreement
between New York State Electric and Gas Corporation and MXenergy Inc. dated March 30,
2005.


 


Billing Services Agreement
between New York State Electric and Gas Corporation and MXenergy Electric Inc.
dated March 30, 2005.


 


Gas Pooling Agreement
between New York State Electric and Gas Corporation and MXenergy Inc. dated July 27,
2005.


 


Retail Supplier Operating
Agreement between Central Hudson Gas & Electric Corporation and
MXenergy Inc. dated August 02, 2005.


 


Billing Services Agreement
between Central Hudson Gas & Electric Corporation and MXenergy Inc.
dated February 2, 2006.


 


Retail Supplier Operating
Agreement between Central Hudson Gas & Electric Corporation and
MXenergy Electric Inc. dated August 02, 2005.


 


Billing Services Agreement
between Central Hudson Gas & Electric Corporation and MXenergy Electric
Inc. dated February 2, 2006.


 


Operating Agreement between
Consolidated Edison Company of New York, Inc. and MXenergy Electric Inc.
dated December 07, 2005.


 


Consolidated Utility Billing
Service and Assignment Agreement between Consolidated Edison Company of New
York, Inc. and MXenergy Inc. dated April 1, 2008.


 


Consolidated Utility Billing
Service and Assignment Agreement between Consolidated Edison Company of New
York, Inc. and MXenergy Electric Inc. dated April 1, 2008.


 


Customer Aggregation Agreement
between Columbia Gas of Maryland, Inc. and MXenergy Inc. dated November 1,
1998.


 


Third Party Supplier Service
Agreement between City Gas Company of Florida and Total Gas & Electric
dated December 16, 1998.


 


Services Agreement between
South Jersey Gas and MXenergy Inc. (Schedule 1.0) dated as of July 31,
2008.


 


Pooler Agreement between
Atlanta Gas Light Company and MXenergy Inc. dated April 6, 2006


 


Vectren Choice Supplier
Pooling Agreement between Vectren Energy Delivery of Ohio, Inc. and
MXenergy Inc. dated as of September 8th, 2008.


 

















 


Indenture dated as of August 4,
2006 by and among MXenergy Holdings Inc., Law Debenture trust Company of New
York, as trustee, and Deutsche Bank Trust Company Americas, as registrar and
paying agent, related to MXenergy Floating Rate Senior Notes due 2011.


 


Third Amended and Restated
Stockholders Agreement among MXenergy Inc., Charter Mx LLC, Various Investors,
Laithi LLC, Jeffrey A. Mayer, Carol R. Artman-Hodge, Daniel P. Burke and Other
Stockholders, dated as of June 25, 2004, as amended by the First Amendment
to the Third Amended and Restated Stockholders Agreement dated as of June 9,
2008.


 


Certificate of Designation
of Series A Convertible Preferred Stock dated as of June 30, 2005,
and Amendment No. 1 to Certificate of Designation of Series A
Convertible Preferred Stock dated as of November 17, 2008.


 


Certificate of Designation
of Series B Convertible Preferred Stock dated as of November 17,
2008.


 


Master Transaction Agreement
among Société Générale and MXenergy Inc., MXenergy Holdings Inc. and certain of
is Subsidiaries, dated as of August 1, 2006, as amended by Amendment No. 1
dated April 6, 2007, Amendment No. 2 dated December 17, 2007,
Amendment No. 3 dated May 12, 2008, 
Amendment No. 4 dated July 31, 2008, Amendment No. 5
dated as of September 30, 2008, Amendment No. 6 dated as of November 5th,
2008 and Amendment No. 7 dated as of November 7th, 2008.


 


Electronic Commerce System
User Agreement between Pacific Gas and Electric Company and MXenergy Inc. dated
as of June 25, 2008.


 


Gas Transmission Service
Agreement between Pacific Gas and Electric Company and MXenergy Inc. dated as
of July 1, 2008.


 


Rate Schedule 36 Services
Agreement between Marketer (MXenergy (Canada) Ltd.) and Terasen Gas Inc. dated
as of January 11, 2007.


 


The Brooklyn Union Gas
Company d/b/a National Grid NY and KeySpan Gas East Corporation d/b/a National
Grid Billing Services, Purchase of Accounts Receivables and Assignment
Agreement partially executed as of October 10th, 2008.


 
















 


SCHEDULE 2.01                    


 


REVOLVING COMMITMENTS AND PRO RATA SHARES OF THE REVOLVING LENDERS


 


	
   

  	
   

  	
  Revolving

  Commitment

  	
   

  	
   

  	
   

  
	
  Lender

  	
   

  	
  On the Closing

  Date

  	
   

  	
  March 31, 2009

  	
   

  	
  April 30, 2009

  	
   

  	
  May 31, 2009

  	
   

  	
  June 30, 2009

  	
   

  	
  Pro Rata

  Share

  	
   

  
	
  Société Générale

  	
   

  	
  $

  	
  65,517,857.14

  	
   

  	
  $

  	
  60,267,857.14

  	
   

  	
  $

  	
  53,571,428.57

  	
   

  	
  $

  	
  46,875,000.00

  	
   

  	
  $

  	
  33,482,142.86

  	
   

  	
  26.78571

  	
  %

  
	
  Wachovia Bank, N.A.

  	
   

  	
  $

  	
  65,517,857.14

  	
   

  	
  $

  	
  60,267,857.14

  	
   

  	
  $

  	
  53,571,428.57

  	
   

  	
  $

  	
  46,875,000.00

  	
   

  	
  $

  	
  33,482,142.86

  	
   

  	
  26.78571

  	
  %

  
	
  CoBank, ACB

  	
   

  	
  $

  	
  43,678,571.43

  	
   

  	
  $

  	
  40,178,571.43

  	
   

  	
  $

  	
  35,714,285.71

  	
   

  	
  $

  	
  31,250,000.00

  	
   

  	
  $

  	
  22,321,428.57

  	
   

  	
  17.85714

  	
  %

  
	
  Allied Irish Banks p.l.c.

  	
   

  	
  $

  	
  21,839,285.71

  	
   

  	
  $

  	
  20,089,285.71

  	
   

  	
  $

  	
  17,857,142.86

  	
   

  	
  $

  	
  15,625,000.00

  	
   

  	
  $

  	
  11,160,714.29

  	
   

  	
  8.92857

  	
  %

  
	
  LaSalle Bank National Association

  	
   

  	
  $

  	
  21,839,285.71

  	
   

  	
  $

  	
  20,089,285.71

  	
   

  	
  $

  	
  17,857,142.86

  	
   

  	
  $

  	
  15,625,000.00

  	
   

  	
  $

  	
  11,160,714.29

  	
   

  	
  8.92857

  	
  %

  
	
  Morgan Stanley Bank

  	
   

  	
  $

  	
  17,471,428.57

  	
   

  	
  $

  	
  16,071,428.57

  	
   

  	
  $

  	
  14,285,714.29

  	
   

  	
  $

  	
  12,500,000.00

  	
   

  	
  $

  	
  8,928,571.43

  	
   

  	
  7.14286

  	
  %

  
	
  RZB Finance LLC

  	
   

  	
  $

  	
  8,735,714.29

  	
   

  	
  $

  	
  8,035,714.29

  	
   

  	
  $

  	
  7,142,857.14

  	
   

  	
  $

  	
  6,250,000.00

  	
   

  	
  $

  	
  4,464,285.71

  	
   

  	
  3.57143

  	
  %

  
	
  TOTAL:

  	
   

  	
  $

  	
  244,600,000.00

  	
   

  	
  $

  	
  225,000,000.00

  	
   

  	
  $

  	
  200,000,000.00

  	
   

  	
  $

  	
  175,000,000.00

  	
   

  	
  $

  	
  125,000,000.00

  	
   

  	
  100.00000

  	
  %

  



 

















 


Schedule 3.01(j) – 
Material Adverse Changes


 


The NYMEX contract price of natural gas has fallen from $13.10/MMBtu in
July 2008 to a low of approximately $6.12/MMBtu in October 2008 (for
the November contract).  The significant decline in the price of
natural gas has eroded the borrowing base availability prior to the winter
season when the gas is delivered to our customers at higher hedged
prices.  The decline has reduced overall inventory value per the borrowing
base by approximately $40MM.  In addition, the Company is required to
record a write-down in the value of inventory as of September 30, 2008 of
approximately $7.3MM and has incurred a further charge of $6.8MM from the
application of weighted average cost of gas.  The impact on the Company
has been two-fold:  the inventory write-down will impact the covenants
without an amendment to the definition and the Company projected that it would
not have enough availability to meet its obligations over the winter months
without an over-advance in the borrowing base.


 

















 


Schedule 4.01 – Licensed Jurisdictions


 


MXenergy Inc. – DE
Incorporated


 


Each state in which MXenergy Inc. is licensed by the applicable state
utility commission to supply natural gas or related products: *


 


FL, GA, IL, IN, KY, MD, MI, NJ, NY, OH, PA,


 






*MXenergy Inc. is authorized to do business
in the state of California, but the state utility commission in California does
not require natural gas marketers to obtain a license in order to supply
natural gas or related products. 
MXenergy Inc. is authorized to do business in the states of Tennessee
and West Virginia, but does not possess a license in order to supply natural
gas or related products in those states.


 


MXenergy Electric Inc.
– DE Incorporated


 


Each state in which MXenergy Electric Inc. is licensed by the
applicable state utility commission to supply electricity or related products:*


 


CT, MA, NY,
PA, TX


 






*MXenergy Electric Inc. is authorized to do
business in the states of Michigan, New Jersey and Rhode Island, but does not
possess a license in order to supply electricity or related products in those
states.


 

















 


Schedule 4.10 – Subsidiaries


 





 

















 


Schedule 4.13 – Insurance Policies


 


Serviced
by Marsh USA Inc.


Statement
as of:  October 15, 2008


Notice:
This statement is not intended in any way to describe the coverage granted by
any of the policies mentioned, but is solely for the use in identifying the
policies for audit purposes.


 


	
  Line
  of Coverage

  	
   

  	
  Carrier

  	
   

  	
  Policy No.

  	
   

  	
  Retention/Deductibles

  	
   

  	
  Limits

  	
   

  	
  Attach

  	
   

  	
  Expire

  	
   

  	
  Current

  Premium

  	
   

  
	
  Casualty

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  General
  Liability

  	
   

  	
  Chubb - Federal
  Insurance 

  	
   

  	
  000037112430

  	
   

  	
  N/A

  	
   

  	
  General Aggregate:

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  10,600

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  	
  BI/PD Each Occurrence:

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,000

  	
   

  	
  Employee Benefits
  E&O:

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Property

  	
   

  	
  Chubb - Federal
  Insurance 

  	
   

  	
  000037112430

  	
   

  	
   

  	
   

  	
  Property

  	
   

  	
   

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  16,935

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Personal Property:

  	
   

  	
  $

  	
  1,350,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  EDP:

  	
   

  	
  $

  	
  1,920,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Various per summary

  	
   

  	
  Business Income Blanket:

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Blanket Limit:

  	
   

  	
  $

  	
  100,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Various sublimits per
  summary

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Crime

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,000

  	
   

  	
  Employee Theft:

  	
   

  	
  $

  	
  250,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,000

  	
   

  	
  Depositor’s Forgery:

  	
   

  	
  $

  	
  100,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Automobile
  Liability

  	
   

  	
  Chubb - Federal
  Insurance

  	
   

  	
  000073543598

  	
   

  	
  N/A

  	
   

  	
  Hired &
  Non-Owned:

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  205

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Workers
  Compensation

  	
   

  	
  Chubb - Federal
  Insurance

  	
   

  	
  000078390827

  	
   

  	
  N/A

  	
   

  	
  Workers Compensation:

  	
   

  	
  Statutory

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  62,393

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Employers Liability:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Each Accident:

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Policy Limit:

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Each Employee:

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Umbrella
  Liability

  	
   

  	
  Chubb - Federal
  Insurance

  	
   

  	
  000079833667

  	
   

  	
  N/A

  	
   

  	
  Umbrella Liability:

  	
   

  	
  $10,000,000 Excess

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  19,341

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  of Primary

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Excess
  Liability:

  	
   

  	
  ACE Property &
  Casualty

  	
   

  	
  XCP G24650625

  	
   

  	
  N/A

  	
   

  	
  Excess Liability:

  	
   

  	
  $15,000,000 Excess

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  25,000

  	
   

  
	
   

  	
   

  	
  Insurance Company

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  of Underlying

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Line
  of Coverage

  	
   

  	
  Carrier

  	
   

  	
  Policy No.

  	
   

  	
  Retention/Deductibles

  	
   

  	
  Limits

  	
   

  	
  Attach

  	
   

  	
  Expire

  	
   

  	
  Current

  Premium

  	
   

  
	
  FINPRO
  (Financial & Professional)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Directors &
  Officers Liability (“D&O”)/

  	
   

  	
  U.S. Specialty

  	
   

  	
  14-MGU-08-A17899

  	
   

  	
  $50,000 per
  Indemnifiable

  	
   

  	
  Aggregate Limit of
  Liability for D&O:

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  11/8/08

  	
   

  	
  11/8/09

  	
   

  	
  $

  	
  53,176

  	
   

  
	
  Employment
  Practices Liability (“EPL”)/

  	
   

  	
  Insurance Co. (“HCC”)

  	
   

  	
   

  	
   

  	
  D&O/EPL Claim

  	
   

  	
  Aggregate Limit of
  Liability for EPL:

  	
   

  	
  $

  	
  4,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fiduciary
  Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $0 per Fiduciary
  Liability

  	
   

  	
  Aggregate Limit of
  Liability for Fiduciary:

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Claim

  	
   

  	
  (including Defense
  Costs)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Excess
  D&O

  	
   

  	
  Arch Insurance Co.

  	
   

  	
  DOX0023743-01

  	
   

  	
  N/A

  	
   

  	
  Aggregate Limit of
  Liability:

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  11/8/08

  	
   

  	
  11/8/09

  	
   

  	
  $

  	
  12,000

  	
   

  
	
   

  	
   

  	
  excess of:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  excess of

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (including Defense
  Costs)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commercial
  Crime

  	
   

  	
  Hartford Fire Insurance

  	
   

  	
  00FA025127008

  	
   

  	
  $50,000 ($1,000 for Credit

  	
   

  	
  Employee Theft:

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  7/1/08

  	
   

  	
  11/8/09

  	
   

  	
  $

  	
  13,249

  	
   

  
	
   

  	
   

  	
  Company (“The Hartford”)

  	
   

  	
   

  	
   

  	
  Card Forgery and Personal

  	
   

  	
  Depositors
  Forgery & Alteration:

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (prepaid)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Accounts of Officers. No

  	
   

  	
  Theft,
  Disappearance & Destruction:

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  deductible for Money &
  

  	
   

  	
  Computer &
  Funds Transfer Fraud:

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Orders & Counterfeit
  Currency

  	
   

  	
  Money Orders &
  Counterfeit Currency:

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  or ERISA Compliance)

  	
   

  	
  Credit Card Forgery:

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Third Party
  Liability/Client Coverage:

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Investigative Expense:

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Personal Accounts of
  Officers:

  	
   

  	
  $

  	
  100,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
																						



 
















 


Schedule 4.17 – Bank Accounts


 


	
  SUBSIDIARIES

  	
   

  	
  BANK
  ACCOUNT

  
	
   

  	
   

  	
   

  
	
  MXenergy Electric Inc.

  	
   

  	
  Wachovia Acct #2000008695525

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Huntington National Bank Account # 0189-2476728

  
	
   

  	
   

  	
   

  
	
  MXenergy Inc.

  	
   

  	
  Societe
  Generale DDA 00193852

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia # 2000030372793 (AGL Security Deposits)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia # 2000030372683 (Texas Customer Deposits)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia LB VPEM 2000001122095

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Citibank Checking 22416285

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia # 2000018007530 (Legacy SESCo receipts)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Amegy Bank #51044923 (Legacy Vantage receipts)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LaSalle Bank #5800334715 Box # 1069 (Legacy GasKey receipts)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia # 2079961065281 (A/P)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia Concentration/Checking Acct # 2000008695512

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia (Houston) Acct # 2000018007530

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Huntington National Bank Acct # 0189-2398262

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMorgan Chase Acct # 304690295

  
	
   

  	
   

  	
   

  
	
  Online Choice, Inc.

  	
   

  	
  Wachovia # 2000011662367

  



 

















 


Schedule 4.24


Locations


 


(a)           Names under which Loan Parties have conducted business
in last five (5) years:


 


MXenergy


MXenergy Electric


MXenergy Electric (PA)


Total Gas & Electric


Total Gas & Electricity (PA)


GasKey


 


(b)           Entities and Loan Party has acquired or from whom any
Loan Party has acquired a significant amount of assets within the past five (5) years:


 


MXenergy Inc. acquired the assets of Total Gas & Electric, Inc.
and Total Gas & Electricity (PA) Inc. in March, 2004.  On August 31, 2006, Total Gas &
Electric, Inc. merged with and into MXenergy Inc.  On May 17, 2007, Total Gas &
Electricity (PA) Inc. merged with and into MXenergy Electric Inc.


 


MXenergy Inc. acquired the assets of Castle Power LLC in November,
2005.


 


MXenergy Inc. acquired the assets of Shell Energy Services Company, LLC
in August, 2006.


 


MXenergy Electric Inc. acquired the assets of Vantage Power Services,
L.P. and certain partners and individuals in May, 2007.


 


MXenergy Inc. acquired the GasKey division of PS Energy Group, Inc.
in January, 2008.


 


MXenergy Inc. acquired the natural gas customers and inventory of
Catalyst Natural Gas, LLC in October, 2008.


 


(c)           Jurisdiction of organization for each Loan Party with
organizational identification number:*


 


	
  MXenergy Inc.

  	
   

  	
  Federal ID – 06-1543530

  
	
  MXenergy Electric Inc.

  	
   

  	
  Federal ID – 05-0572938

  
	
  MXenergy Holdings Inc.

  	
   

  	
  Federal ID – 20-2930908

  
	
  OnlineChoice Inc.

  	
   

  	
  Federal ID – 30-0146844

  
	
  MXenergy Gas Capital Holdings Corp.

  	
   

  	
  Federal ID – 20-3288871

  
	
  MXenergy Electric Capital Holdings Corp.

  	
   

  	
  Federal ID – 20-3288943

  
	
  MXenergy Gas Capital Corp.

  	
   

  	
  Federal ID – 20-3288904

  
	
  MXenergy Electric Capital Corp.

  	
   

  	
  Federal ID – 20-3289101

  
	
  MXenergy Capital Holdings Corp.

  	
   

  	
  Federal ID – 20-3288717

  
	
  MXenergy Capital Corp.

  	
   

  	
  Federal ID – 20-3288797

  
	
  MXenergy Services Inc.

  	
   

  	
  Federal ID – 20-2931858

  
	
  Infometer.com Inc.

  	
   

  	
  Federal ID – 06-1559733

  



 






*All Loan Parties are incorporated in Delaware.


 

















 


(d)           Office Locations of Loan Parties:


 


	
  Connecticut Office:

  	
   

  	
  Maryland Office:

  
	
  595
  Summer Street

  	
   

  	
  10010
  Junction Drive

  
	
  Suite 300

  	
   

  	
  Suite 104-S

  
	
  Stamford,
  CT 06901

  	
   

  	
  Annapolis
  Junction, MD 20701

  
	
   

  	
   

  	
   

  
	
  New Jersey Office:

  	
   

  	
  Texas Office:

  
	
  510
  Thornall Street

  	
   

  	
  711
  Louisiana Street

  
	
  Suite 270

  	
   

  	
  Suite 1000

  
	
  Edison,
  NJ 08837

  	
   

  	
  Houston,
  TX 77002

  
	
   

  	
   

  	
   

  
	
  Ohio Office:

  	
   

  	
  Michigan Office:

  
	
  12991
  Clifton Blvd.

  	
   

  	
  39555
  Orchard Hill Place, Suite 600

  
	
  Lakewood,
  OH 44107

  	
   

  	
  Novi,
  MI 48375

  
	
   

  	
   

  	
   

  
	
  Georgia Office:

  	
   

  	
   

  
	
  2987
  Clairmont Road, Suite 500

  	
   

  	
   

  
	
  Atlanta,
  GA 30329

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Inventory Locations of Borrowers and their
  Subsidiaries:

  
	
   

  	
   

  	
   

  
	
  Baltimore
  Gas & Electric

  	
   

  	
  National
  Fuel Gas

  
	
  39
  West Lexington Street

  	
   

  	
  6363
  Main Street

  
	
  Baltimore,
  MD 21203

  	
   

  	
  Williamsville,
  NY 14221

  
	
   

  	
   

  	
   

  
	
  Dominion
  East Ohio

  	
   

  	
  Nicor, Inc.

  
	
  625
  Liberty Avenue

  	
   

  	
  1844
  W. Ferry Road

  
	
  Pittsburgh,
  PA 15222

  	
   

  	
  Naperville,
  IL 60563

  
	
   

  	
   

  	
   

  
	
  TCO
  (Columbia Gas Transmission Co.)

  	
   

  	
  Northern
  Indiana Public Service Co.

  
	
  12801
  Fair Lakes Parkway

  	
   

  	
  801
  E. 86th Avenue

  
	
  Fairfax,
  VA 22030

  	
   

  	
  Merrillville,
  IN 46410

  
	
   

  	
   

  	
   

  
	
  DTI
  (Dominion Transmission)

  	
   

  	
  Southern
  Natural Gas Company

  
	
  120
  Tredegar Street

  	
   

  	
  1900
  5th Avenue North

  
	
  Richmond,
  VA 23251

  	
   

  	
  Birmingham,
  AL 35203

  
	
   

  	
   

  	
   

  
	
  BP
  Canada Energy Company

  	
   

  	
  Transcontinental
  Gas Pipeline

  
	
  PO
  Box 200

  	
   

  	
  2800
  Post Oak Boulevard

  
	
  Calgary,
  AB T2P 2H8

  	
   

  	
  Houston,
  TX 77056

  
	
   

  	
   

  	
   

  
	
  Panhandle
  Eastern Pipe Line

  	
   

  	
  Atlanta
  Gas Light

  
	
  5440
  Westheimer Road

  	
   

  	
  P.
  O. Box 4569

  
	
  Houston,
  TX 77056-5306

  	
   

  	
  Atlanta,
  GA 30302-4569

  
	
   

  	
   

  	
   

  
	
  Petal
  Gas Storage, L.L.C.

  	
   

  	
   

  
	
  1100
  Louisiana, Suite 14.184

  	
   

  	
   

  
	
  Houston,
  TX 77002

  	
   

  	
   

  
					



 

















 


Schedule 6.01 – Existing Liens


 


·      Liens of Societe Generale and the Lenders
permitted by the Intercreditor Agreement


·      Liens of
Denham Commodity Partners Fund LP permitted by the Intercreditor Agreement


·      The following additional Liens:


 


	
  Debtor

  	
   

  	
  Secured Party

  	
   

  	
  Jurisdiction/Type

  	
   

  	
  File No.

  	
   

  	
  File Date

  	
   

  	
  Type of Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MXenergy Electric Inc.

  	
   

  	
  Niagara Mohawk Power Corporation (“NMPC”)

  	
   

  	
  Delaware  UCC-1

  	
   

  	
  619004809

  	
   

  	
  6/05/06

  	
   

  	
  Security interest in all Accounts Receivable, the Deposit and Unbilled
  Accounts Receivable (as such terms are defined in the Agreement for Billing
  Services and for the Purchase of Accounts Receivable dated as of
  June 02, 2005 (the “Agreement”) between NMPC and MXenergy Electric Inc.,
  and the accompanying security agreement).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MXenergy Inc.

  	
   

  	
  National Fuel Gas Distribution Corporation

  	
   

  	
  Delaware  UCC-1

  	
   

  	
  60453704

  	
   

  	
  2/07/06

  	
   

  	
  Security interest in all accounts, general intangibles and chattel
  paper now or hereafter owed to or acquired by MXenergy Inc. which constitute
  “Purchased Customer Accounts” as defined in the Billing Services Agreement
  for Consolidated Billing Service under Service Classification No. 19
  between MXenergy Inc. and National Fuel Gas Distribution Corporation dated
  November 29, 2005, as the same may be amended or supplemented from time
  to time, and all proceeds thereof in any form.

  



 

















 


Schedule 6.02 – Existing Debt


 


	
  1

  	
  Contractual obligations (not in the ordinary course of
  business)

  
	
   

  	
   

  
	
   

  	
  MXenergy
  has an obligation to pay a trailing volumetric fee for all accounts purchased
  in the Castle acquisition that are on a variable rate contract. The fee is
  payable quarterly in arrears when the accounts have paid their commodity
  bills in full and is due at a rate of $0.07/Mmbu. In addition, any new
  accounts that are introduced to MXenergy through Castle sales team will also
  be subject to the $0.07/Mmbtu fee.

  
	
   

  	
   

  
	
   

  	
  MXenergy
  has $0.5 million in escrow associated with the Vantage acquisition. 
  This amount is security for additional payments that may be due
  Vantage.  The earn-out obligations include an established percentage of
  the realized net margin associated with the purchased contracts for the
  original contract term up to a maximum of two years after the closing of the
  Vantage Acquisition. MXenergy also has protection against abnormal levels of
  bad debt and customer attrition under the acquisition contract.

  
	
   

  	
   

  
	
   

  	
  MXenergy
  has an obligation to pay a trailing volumetric fee based on billed
  volume for all customer accounts purchased in the PS Energy
  acquisition. The fee is due every three months in
  arrears at a rate of $0.15  per MMBTU and includes volumes
  associated with renewal customer contracts.  In addition, any new
  accounts that are secured by MXenergy through the GasKey brand are also
  be subject to an earn-out fee of $0.05 per MMBTU.  All such
  earn-out payments apply through a period of three years after the acquisition
  date and are subject to a discount rate of 1%.

  
	
   

  	
   

  
	
   

  	
  MXenergy
  has an obligation to pay $150,000 to Catalyst Natural Gas, LLC on each of
  December 10, 2008 and January 10, 2009, pursuant to a transition
  services agreement in connection with the Catalyst acquisition.

  



 


	
  2

  	
  Letters
  of Credit:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Guaranteed Party

  	
   

  	
  LC
  Amount

  	
   

  	
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AGL

  	
   

  	
  36,247,000

  	
   

  	
  7/18/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SONAT

  	
   

  	
  4,100,000

  	
   

  	
  7/20/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COLUMBIA GAS
  TRANSMISSION

  	
   

  	
  2,100,000

  	
   

  	
  7/21/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NJ NATURAL
  GAS CO.

  	
   

  	
  400,000

  	
   

  	
  7/21/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NY ISO

  	
   

  	
  3,550,000

  	
   

  	
  7/21/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COLUMBIA
  GROUP OF LDC’s (COH, CPA, CKY and CMD)

  	
   

  	
  250,000

  	
   

  	
  5/8/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  IS0 NEW
  ENGLAND INC.

  	
   

  	
  3,250,000

  	
   

  	
  3/16/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MICHIGAN
  CONSOLIDATED GAS

  	
   

  	
  1,200,000

  	
   

  	
  1/30/2006

  	
   

  



 

















 


	
   

  	
  NIPSCO

  	
   

  	
  700,000

  	
   

  	
  1/23/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PSEG

  	
   

  	
  1,300,000

  	
   

  	
  2/15/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  STATE OF
  MICHIGAN (PUC)

  	
   

  	
  100,000

  	
   

  	
  10/2/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CORAL ENERGY
  RESOURCES (f/k/a SHELL ENERGY NORTH AMERICA)

  	
   

  	
  10,300,000

  	
   

  	
  7/31/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  VPEM

  	
   

  	
  3,600,000

  	
   

  	
  6/26/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SEQUENT
  ENERGY

  	
   

  	
  9,000,000

  	
   

  	
  7/3/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TEXAS
  EASTERN (TETCO)

  	
   

  	
  370,000

  	
   

  	
  10/18/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PEOPLES GAS

  	
   

  	
  60,000

  	
   

  	
  10/24/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BG&E

  	
   

  	
  253,717

  	
   

  	
  10/31/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NICOR GAS

  	
   

  	
  400,000

  	
   

  	
  10/30/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  USPS

  	
   

  	
  581,950

  	
   

  	
  2/7/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  USPS

  	
   

  	
  1,078,070

  	
   

  	
  2/16/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EMPIRE STATE
  PIPELINE

  	
   

  	
  40,000

  	
   

  	
  4/2/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NATIONAL
  FUEL PIPELINE

  	
   

  	
  70,000

  	
   

  	
  4/2/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BRITISH
  COLUMBIA UTILITIES (CAD 250k)

  	
   

  	
  250,000

  	
   

  	
  12/6/2006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ERCOT

  	
   

  	
  600,000

  	
   

  	
  3/21/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CIMA ENERGY

  	
   

  	
  4,500,000

  	
   

  	
  11/1/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EAGLE ENERGY

  	
   

  	
  700,000

  	
   

  	
  9/6/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BG ENERGY

  	
   

  	
  6,400,000

  	
   

  	
  11/5/2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MACQUARIE
  COOK ENERGY

  	
   

  	
  2,200,000

  	
   

  	
  11/28/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SHELL ENERGY
  NA (f/k/a CORAL POWER)

  	
   

  	
  6,400,000

  	
   

  	
  1/4/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CONSTELLATION
  ENERGY

  	
   

  	
  700,000

  	
   

  	
  1/24/2008

  	
   

  



 

















 


	
   

  	
  TEXLA ENERGY

  	
   

  	
  2,500,000

  	
   

  	
  4/30/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CONSTELLATION
  ENERGY (power)

  	
   

  	
  3,300,000

  	
   

  	
  6/2/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SOCIETE
  GENERALE

  	
   

  	
  35,000,000

  	
   

  	
  6/23/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  UBS ENERGY

  	
   

  	
  600,000

  	
   

  	
  9/2/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BP ENERGY
  CO. (power)

  	
   

  	
  1,500,000

  	
   

  	
  6/25/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BP ENERGY
  CO.

  	
   

  	
  1,600,000

  	
   

  	
  8/19/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BP CORP NA
  (power)

  	
   

  	
  900,000

  	
   

  	
  7/28/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CARGILL,
  INC.

  	
   

  	
  100,000

  	
   

  	
  11/13/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SEMPRA
  ENERGY TRADING

  	
   

  	
  600,000

  	
   

  	
  10/28/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SEMPRA
  ENERGY TRADING (power)

  	
   

  	
  1,150,000

  	
   

  	
  10/28/2008

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TOTAL

  	
   

  	
  $

  	
  147,950,737

  	
   

  	
   

  	
   

  
								



 


	
  3

  	
  Surety
  Bonds:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Bonds
  issued through Marsh:

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  STATE
  OF NJ, BPU (power)

  	
   

  	
  250,000

  	
   

  	
  2/17/2005

  	
   

  	
  200,000
  Bond # K0704334A – Secured by cash at 80% of the face amount. Broker: Ace

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STATE
  OF NJ, BPU (gas)

  	
   

  	
  250,000

  	
   

  	
  2/17/2005

  	
   

  	
  200,
  000 Bond # K07043351– Secured by cash at 80% of the face amount Broker: Ace

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PENNSYLVANIA
  PUC

  	
   

  	
  250,000

  	
   

  	
  3/13/06

  	
   

  	
  250,000
  Bond # K07304997 Broker: Westchester Fire Insurance (MXenergy Electric Inc.)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bonds issued by International Fidelity:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ICC
  (Illinois Residential Customers)

  	
   

  	
  150,000

  	
   

  	
  7/24/2002

  	
   

  	
  150,000
  Bond # 972502

  



 


	
  4

  	
  Outstanding
  Loans

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  $12
  million outstanding under the Denham credit facility as of Closing Date.

  



 
















 


Schedule 6.05 – Investments


 


None other than Investments in Subsidiaries in the form of the
guaranties set forth below.  Subsidiaries
benefit from all MXenergy Holdings Inc. financial and credit transactions
either directly or indirectly.


 


MXenergy
Holdings Inc.


Financial
Guaranties


 


	
  Guaranteed Party

  	
   

  	
  Date of Gty

  	
   

  	
  Amount of Gty

  	
   

  	
  Guarantor

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US $ Guaranties:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ANR Pipeline

  	
   

  	
  2/20/2007

  	
   

  	
  $

  	
   100,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  BP Energy Company

  	
   

  	
  1/30/2006

  	
   

  	
  $

  	
   5,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  BP Corporation North America

  	
   

  	
  1/30/2006

  	
   

  	
  $

  	
   5,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Columbia Gas/Gulf Transmission

  	
   

  	
  11/30/2005

  	
   

  	
  $

  	
   1,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Constellation Energy Commodities

  	
   

  	
  8/14/2008

  	
   

  	
  $

  	
   500,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  CEC Consolidated Energy Co.

  	
   

  	
  1/25/2006

  	
   

  	
  $

  	
   1,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  CMS Energy (Consumers)

  	
   

  	
  1/30/2006

  	
   

  	
  $

  	
   1,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Shell Energy / formerly Coral Energy

  	
   

  	
  12/7/2005

  	
   

  	
  $

  	
   2,500,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Dominion East Ohio

  	
   

  	
  5/27/2008

  	
   

  	
  $

  	
   500,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Dominion Transmission Inc.

  	
   

  	
  8/2/2006

  	
   

  	
  $

  	
   1,820,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  DTE Energy Trading

  	
   

  	
  1/29/2007

  	
   

  	
  $

  	
   250,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  ERCOT

  	
   

  	
  5/14/2008

  	
   

  	
  $

  	
   133,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Florida Gas Transmission Co.

  	
   

  	
  11/30/2006

  	
   

  	
  $

  	
   500,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Hess Corporation

  	
   

  	
  11/30/2007

  	
   

  	
  $

  	
   250,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Macquarie Cook Energy

  	
   

  	
  8/21/2007

  	
   

  	
  $

  	
   3,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  NJNG

  	
   

  	
  8/23/2005

  	
   

  	
  $

  	
   2,700,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Panhandle Eastern Pipe Line Co

  	
   

  	
  3/14/2008

  	
   

  	
  $

  	
   100,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  PEPCO Energy Company

  	
   

  	
  1/30/2006

  	
   

  	
  $

  	
   1,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  PJM Interconnection LLC

  	
   

  	
  3/17/2005

  	
   

  	
  $

  	
   250,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Sempra

  	
   

  	
  1/30/2006

  	
   

  	
  $

  	
   2,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Sprague Energy

  	
   

  	
  5/21/2006

  	
   

  	
  $

  	
   1,500,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Texas Gas Transmission

  	
   

  	
  2/21/2007

  	
   

  	
  $

  	
   25,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  TRANS. CO.

  	
   

  	
  2/9/2006

  	
   

  	
  $

  	
   2,800,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  TXU

  	
   

  	
  1/16/2006

  	
   

  	
  $

  	
   2,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Vectren Energy

  	
   

  	
  2/24/2006

  	
   

  	
  $

  	
   500,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
  Virginia Power Energy

  	
   

  	
  2/24/2006

  	
   

  	
  $

  	
   1,000,000

  	
   

  	
  MXenergy Holdings Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total of all Guarantees Issued:

  	
   

  	
   

  	
   

  	
  $

  	
  36,428,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Canadian $ Guaranties:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ontario Energy Board

  	
   

  	
  10/29/2003

  	
   

  	
  $

  	
  250,000

  	
   

  	
  MXenergy Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
   

  	
   

  	
  $

  	
  250,000 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exchange rate

  	
   

  	
   

  	
   

  	
  0.8234

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total in US $

  	
   

  	
   

  	
   

  	
  $

  	
  205,850

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Grand total of outstanding guaranties in US
  $

  	
   

  	
   

  	
   

  	
  $

  	
  36,6633,850

  	
   

  	
   

  	
   

  



 

















 


Schedule 6.08 – Affiliate
Transactions


 


1.             Greenhill Capital


 


MXenergy has entered into an agreement with Greenhill & Co.
(an Affiliate of Greenhill Capital Partners, which is an Affiliate of MXenergy
Holdings Inc.) for advisory services. 
MXenergy pays a quarterly retainer of $75,000 to Greenhill and is
subject to additional fees in the event a successful transaction is
consummated.  The total fees payable are
based on the size of the completed transaction and retainer fees paid will be
net against the total success fee.


 


2.             Paul Hastings Janofsky &
Walker


 


A partner at Paul Hastings is director and significant shareholder of
MXenergy Holdings Inc.  MXenergy uses
Paul Hastings as primary legal counsel for securities, financing and corporate
matters.  MXenergy pays the standard
billing rates less a 10% courtesy discount for work performed by Paul Hastings.


 


3.             Jeffrey A. Mayer/Steven
Murray/Carole R. Artman-Hodge


 


Mr. Mayer is the Chairman of the Board of Directors and
CEO/President of MXenergy Holdings Inc.  Mr. Murray
is on the Board of Directors and is COO of MXenergy Holdings Inc.  Ms. Artman-Hodge is on the Board of
Directors and is Executive Vice President of MXenergy Holdings Inc.  These individuals are paid a salary and
receive other compensation and benefits as an employee.


 


4.             Management Fees


 


Effective for the three months ended September 30, 2007, the
Company agreed to pay Denham Commodity Partners Fund LP, Daniel Bergstein and
Charter Mx LLC (a significant stockholder of MXenergy Holdings Inc.), an
aggregate annual fee of $0.9 million, payable in equal quarterly amounts, for
management consulting services provided to MXenergy.


 


5.             Credit Agreement with Denham
Commodity Partners Fund LP


 


Denham Commodity Partners Fund LP (“Denham”) is a significant
stockholder of the Company.  Denham has
extended a $12.0 million line of credit to MXenergy, which bears interest at 9%
per annum (the “Denham Credit Facility”). 
The termination date for the Denham Credit Facility is May 19,
2010, at which time any outstanding principal balance becomes due.


 


6.             Bridge Loan from Denham,
Charter Mx LLC and Certain Members of Management


 


Denham, Charter Mx LLC, Jeffrey Mayer, Chaitu Parikh, Carole R.
Artman-Hodge and Steven Murray are Bridge Lenders under the Credit Agreement.


 

















 


Schedule 6.09 – Restrictive
Agreements


 


1.             Amended and Restated Loan Agreement between
Denham Commodity Partners Fund LP (f/k/a Sowood Commodity Partners Fund LP
f/k/a Lathi, LLC) and MXenergy Inc. dated November 14, 2003, as amended by
Amendment No. 1 dated March 25, 2004, Amendment No. 2 to Amended
and Restated Security Agreement dated July 25, 2006, Amendment No. 3
to Amended and Restated Loan Agreement dated July 25, 2006, and Amendment No. 4
to Amended and Restated Loan Agreement dated January 9, 2008


 


2.             Billing Agent Agreement between Baltimore Gas
and Electric Company and MXenergy Inc. (formerly MXenergy.com Inc.), dated as
of October 26, 1999


 


3.             Billing Agreement (Option 2) between The East
Ohio Gas Company d/b/a Dominion East Ohio and MXenergy Inc. dated December 22,
2003


 


4.             Accounts Receivable Purchase Agreement
between Columbia Gas of Pennsylvania, Inc. and MXenergy.com Inc. dated October 1,
2001


 


5.             Accounts Receivable Purchase Agreement
between Columbia Gas of Kentucky, Inc. and MXenergy Inc. dated November 1,
2005


 


6.             Accounts Receivable Purchase Agreement
between Columbia Gas of Ohio, Inc. and MXenergy Inc. dated August 8,
2005


 


7.             Authorized Gas Supplier Agreement between
Consumers Energy Company and MXenergy Inc. dated January 15, 2002, as
amended by Amendment No. 1 dated April 1, 2003, Amendment No. 2 dated
as of March 31, 2005, and Amendment No. 3 dated March 32, 2007


 


8.             Authorized Gas Supplier Agreement between
Michigan Consolidated Gas Company and MXenergy Inc. dated April 1, 2008


 


9.             Consolidated Utility Billing Service and
Assignment Agreement between Consolidated Edison Company of New York, Inc. and
MXenergy Inc. dated April 1, 2008


 


10.           Consolidated Utility Billing Service and Assignment Agreement between Consolidated
Edison Company of New York, Inc. and MXenergy Electric Inc. dated April 1,
2008


 


11.           Accounts Receivable Purchase Agreement between Northern Indiana Public
Service Company and MXenergy Inc. dated December 1, 2006


 


12.           Service Agreement Gas Distribution Access Rule between Union Gas
and MXenergy (Canada) Ltd., dated as of January 10, 2008


 


13.           Agreement for Billing Services and for the Purchase of Accounts
Receivable between Niagara Mohawk Power Corporation and MXenergy Electric Inc.
dated as of May 31, 2006


 


14.           Agreement for Billing Services and for the Purchase of Accounts
Receivable between Niagara Mohawk Power Corporation and MXenergy Inc. dated as
of May 16, 2006


 

















 


15.           Third Party Supplier
Agreement between Public Service Electric and Gas Company and MXenergy Inc.
dated April 07, 2005


 


16.           Agreement for Billing
and Collection Services between New Jersey Natural Gas Company and MXenergy
Inc. dated October 03, 2005


 


17.           Nicor Gas Consolidated Billing Services Agreement between Northern
Illinois Gas Company, d/b/a Nicor Gas Company, and MXenergy Inc., dated as of March 1,
2002


 


18.           Master Power Purchase
and Sale Agreement between DTE Energy Trading, Inc. and MXenergy Electric
Inc. dated March 8, 2005


 


19.           Operating Agreement
between DTE Energy Trading, Inc. and MXenergy Electric Inc., dated as of March 8,
2005


 


20.           Security Agreement
dated March 8, 2005 between MXenergy Electric Inc. and DTE Energy Trading, Inc. dated March 8, 2005


 


21.           Consolidated Billing and Assignment Agreement dated July 12, 2007
between Orange and Rockland Utilities, Inc. and MXenergy Electric, Inc.


 


22.           Consolidated Billing and Assignment Agreement dated July 12, 2007
between Orange and Rockland Utilities, Inc. and MXenergy Inc.


 


23.           Consolidated Billing and Assignment Agreement between Orange and
Rockland Utilities, Inc. and MXenergy Inc.


 


24.           Billing Services Agreement between Rochester Gas and Electric and
MXenergy Inc. dated May 17, 2005


 


25.           Billing Services Agreement between Rochester Gas and Electric and
MXenergy Electric Inc. dated April 14, 2005


 


26.           Billing Services Agreement between New York State Electric and Gas
Corporation and MXenergy Electric Inc. dated March 30, 2005


 


27.           Billing Services Agreement between New York State Electric and Gas
Corporation and MXenergy Inc. dated March 30, 2005


 


28.           Billing Services Agreement between Central Hudson Gas &
Electric Corporation and MXenergy Inc. dated February 2, 2006


 


29.           Billing Services Agreement between Central Hudson Gas &
Electric Corporation and MXenergy Electric Inc. dated February 2, 2006


 


30.           Services Agreement between South Jersey Gas and MXenergy Inc. dated July 31,
2008


 


31.           Billing Services Agreement for Consolidated Billing Service Under
Service Classification No. 19 between National Fuel Gas and MXenergy Inc.
dated November 29, 2005


 

















 


32.           Quick Collect Agreement between Western Union Financial Services, Inc.
and Shell Energy Services Company, L.L.C. dated August 21, 2002 as amended
by Addendum dated September 20, 2002


 


33.           Competitive Electric Supplier Service Agreement between Massachusetts
Electric Company and MXenergy Electric Inc. dated September 3, 2004


 


34.           Customer Aggregation Agreement between Columbia Gas of Maryland, Inc.
and MXenergy Inc. dated November 1, 1998


 


35.           Vectren Choice Supplier Pooling Agreement between Vectren Energy
Delivery of Ohio, Inc. and MXenergy Inc. dated as of September 8th,
2008


 


36.           Electronic Commerce System User Agreement between Pacific Gas and
Electric Company and MXenergy Inc. dated as of June 25, 2008


 


37.           Core Gas Aggregation Service Agreement between Pacific Gas and Electric
Company and MXenergy Inc. dated as of October 1, 2008


 


38.           Consolidated Billing Authorization Form between Pacific Gas and
Electric Company and MXenergy Inc. dated as of October 1, 2008


 


39.           Service Agreement between The East Ohio Gas
Company d/b/a Dominion East Ohio and MXenergy Inc., dated as of December 22,
2003


 


40.           Supplier Aggregation Service Agreement
between Northern Indiana Public Service Company and MXenergy Inc. dated December 1,
2006


 


41.           Supplier Aggregation Agreement between
Northern Illinois Gas Company d/b/a Nicor Gas Company and MXenergy Inc. dated January 24,
2002


 


42.           The Brooklyn Union Gas Company d/b/a National
Grid NY and KeySpan Gas East Corporation d/b/a National Grid Billing Services,
Purchase of Accounts Receivables
and Assignment Agreement partially executed as of October 10th,
2008


 

















 


Schedule 10.02 – Addresses for Notice


 


	
  MXENERGY INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Credit Contact

  	
  Administrative Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Chaitu Parikh

  	
  Kristin A. Kreuder, Esq.

  	
   

  
	
  Address:

  	
  595 Summer Street, Suite 300

  	
  595 Summer Street, Suite 300

  	
   

  
	
   

  	
  Stamford, Connecticut 06901

  	
  Stamford, Connecticut 06901

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
  203.356.1318 ext. 7712

  	
  203.356.1318 ext. 7735

  	
   

  
	
  Facsimile:

  	
  203.975.9659

  	
  203.316.0417

  	
   

  
	
  Email:

  	
  cparikh@mxenergy.com

  	
  kkreuder@mxenergy.com

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SOCIÉTÉ GÉNÉRALE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Credit Contact

  	
  Administrative Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Barbara Paulsen

  	
  Sylvia Pace

  	
   

  
	
  Title:

  	
  Relationship Manager

  	
  Analyst/Loans Servicing

  	
   

  
	
  Address:

  	
  1221 Avenue of the Americas

  	
  1221 Avenue of the Americas, 12th Floor

  	
   

  
	
   

  	
  New York, New York 10020

  	
  New York, New York 10020

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
  212.278.6496

  	
  212.278.7598

  	
   

  
	
  Facsimile:

  	
  212.278.7417

  	
  212.278.7343

  	
   

  
	
  Email:

  	
  barbara.paulsen@sgcib.com

  	
  silvia.pace@sgcib.com

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WACHOVIA BANK, N.A.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Credit Contact

  	
  Administrative Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  John Puckhaber

  	
  Wendolyn London

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
  Assistant Vice President

  	
   

  
	
  Address:

  	
  190 River Road, NJ3181

  	
  190 River Road, NJ3181

  	
   

  
	
   

  	
  Summit, NJ 07901

  	
  Summit, NJ 07901

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
  908.598.3208

  	
  908.598.3216

  	
   

  
	
  Facsimile:

  	
  908.598.3281

  	
  908.598.3233

  	
   

  
	
  Email:

  	
  john.puckhaber@wachovia.com

  	
  wendolyn.london@wachovia.com

  	
   

  



 

















 


	
  CoBANK, ACB

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Credit Contact

  	
  Administrative Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Dale Keyes

  	
  Laura Bender

  	
   

  
	
  Title:

  	
  Vice President

  	
  Syndications / Closing

  	
   

  
	
  Address:

  	
  5500 South Quebec Street

  	
  5500 South Quebec Street

  	
   

  
	
   

  	
  Greenwood Village, Colorado 80111

  	
  Greenwood Village, Colorado 80111

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
  303.694.5850

  	
  303.740.6454

  	
   

  
	
  Facsimile:

  	
  303.796.1437

  	
  303.694.5851

  	
   

  
	
  Email:

  	
  dkeyes@cobank.com

  	
  closing@cobank.com

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  MORGAN STANLEY BANK

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Credit Contact

  	
  Administrative Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Scott Taylor

  	
  Carrie D Johnson

  	
   

  
	
  Title:

  	
  Executive Director

  	
   

  	
   

  
	
  Address:

  	
  750 Seventh Avenue, Floor 11

  	
  201 South Main Street, 5th Floor

  	
   

  
	
   

  	
  New York, NY 10019

  	
  Salt Lake City, UT 84111-2215

  	
   

  
	
  Telephone:

  	
  212.762.0681

  	
  801.236.3655

  	
   

  
	
  Facsimile:

  	
  212.507.6574

  	
  718.233.0967

  	
   

  
	
  Email:

  	
  Scott.T.Taylor@morganstanley.com

  	
  Carrie.D.Johnson@morganstanley.com

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LASALLE BANK NATIONAL ASSOCIATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Credit Contact

  	
  Administrative Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David Maiorella

  	
  Debbie Hollins

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
  Portfolio Management Administrator

  	
   

  
	
  Address:

  	
  AZ1-200-19-11

  201 E Washington St., 19th Floor

  	
  AZ1-200-19-11

  201 E Washington St., 19th Floor

  	
   

  
	
   

  	
  Phoenix, AZ 85004

  	
  Phoenix, AZ 85004

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
  602.523.2339

  	
  602.523.2009

  	
   

  
	
  Facsimile:

  	
  602.523.2750

  	
  602.523.2750

  	
   

  
	
  Email:

  	
  david.p.maiorella@bankofamerica.com

  	
  deborah.e.hollins@bankofamerica.com

  	
   

  



 

















 


	
  ALLIED IRISH BANKS p.l.c.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Credit Contact

  	
  Administrative Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Mark K. Connelly, CFA

  	
  Eimear O’Meara/Bernice Ruane

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  	
   

  
	
  Address:

  	
  Allied Irish Bank

  	
  Allied Irish Banks – Corporate Operations

  	
   

  
	
   

  	
  1111 Bagby Street, Suite 2245

  	
  2nd Floor, Iona House, Shelbourne Road

  	
   

  
	
   

  	
  Houston, TX 77002

  	
  Ballsbridge, Dublin 4, Ireland

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
  713 292-1025

  	
  +353 1 641 6642

  	
   

  
	
  Facsimile:

  	
   

  	
  +353 1 608 9795

  	
   

  
	
  Email:

  	
  mark.k.connelly@aibny.com

  	
  aib.capmkts.ny@aib.ie

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  RZB FINANCE LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Credit Contact

  	
  Administrative Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Astrid Wilke

  	
  Irma Soto

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  
	
  Address:

  	
  1133 Avenue of the Americas

  	
  1133 Avenue of the Americas

  	
   

  
	
   

  	
  16th Floor

  	
  16th Floor

  	
   

  
	
   

  	
  New York, New York 10036

  	
  New York, New York 10036

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
  212.845.4131

  	
  212.845.4104

  	
   

  
	
  Facsimile:

  	
  212.944.6389

  	
  212.944.6389

  	
   

  
	
  Email:

  	
  awilke@rzbfinance.com

  	
  irma.soto@rzbfinance.com

  	
   

  
	
   

  	
   

  
	
  DENHAM COMMODITY PARTNERS FUND LP

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Patty Danier

  	
   

  
	
  Title:

  	
  Account Manager

  	
   

  
	
  Address:

  	
  200 Clarendon Street

  	
   

  
	
   

  	
  25th Floor

  	
   

  
	
   

  	
  Boston, Massachusetts 02116

  	
   

  
	
   

  	
   

  	
   

  
	
  Telephone:

  	
  617.531.4854

  	
   

  
	
  Facsimile:

  	
  617.236.8919

  	
   

  
	
  Email:

  	
  dcm.fundaccounting @denhamcapital.com

  
					



 

















 


	 
	
  CHARTER MX LLC

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
  Name:

  	
  William Laduyt

  	
   

  	 

	 
	
  Title:

  	
  Senior Partner

  	
   

  	 

	 
	
  Address:

  	
  535 Madison Avenue

  	
   

  	 

	 
	
   

  	
  New York, NY 10022

  	
   

  	 

	 
	
   

  	
   

  	
   

  	 

	 
	
  Telephone:

  	
  212.584.3216

  	
   

  	 

	 
	
  Facsimile:

  	
  212.750.9704

  	
   

  	 

	 
	
  Email:

  	
  wlanduyt@charterhousegroup.com

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
  MANAGERS – BRIDGE LOAN LENDERS

  	
   

  	 

	 
	
   

  	
   

  	 

	
  Name:

  	
  Jeffrey Mayer

  	
  Steven Murray

  
	
  Address:

  	
  595 Summer Street

  	
  711 Louisiana Street

  
	
   

  	
  Suite 300

  	
  Suite 100

  
	
   

  	
  Stamford, CT 06901-1407

  	
  Houston, TX 77002

  
	
   

  	
   

  	
   

  
	
  Telephone:

  	
  203.975.9659 Ext. 7715

  	
  713.357.2639

  
	
  Facsimile:

  	
  203.975.9659

  	
  713.357.2990

  
	
  Email:

  	
  jmayer@mxenergy.com

  	
  smurray@mxenergy.com

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Chaitu Parikh

  	
  Carole R. Artman-Hodge

  
	
  Address:

  	
  595 Summer Street

  	
  595 Summer Street

  
	
   

  	
  Suite 300

  	
  Suite 300

  
	
   

  	
  Stamford, CT 06901-1407

  	
  Stamford, CT 06901-1407

  
	
   

  	
   

  	
   

  
	
  Telephone:

  	
  203.356.1318 Ext. 7712

  	
  203.975.9659 Ext. 7711

  
	
  Facsimile:

  	
  203.975.9659

  	
  203.975.9659

  
	
  Email:

  	
  cparikh@mxenergy.com

  	
  chodge@mxenergy.com