Exhibit 10.6


 


EXECUTION COPY


 




 





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 of Revolving Advances and Bridge Loans; Convertibility of
  Bridge Loans

  	
  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 Sections 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

  
				



 

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.03

  	
  Authorization and Approvals

  	
  63

  
	
   

  	
   

  	
   

  
	
  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

  	
  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

  
				



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.07

  	
  Other Notices

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 5.08

  	
  Books and Records; Inspection

  	
  77

  
	
   

  	
   

  	
   

  
	
  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

  
				



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.18

  	
  Minimum Consolidated Working Capital

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section 6.19

  	
  Maximum Aggregate Negative EBITDA

  	
  87

  
	
   

  	
   

  	
   

  
	
  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 Support 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

  	
  THE 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

  
				



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 8.12

  	
  Benefit of Guaranty

  	
  99

  
	
   

  	
   

  	
   

  
	
  Section 8.13

  	
  Reinstatement

  	
  100

  
	
   

  	
   

  	
   

  
	
  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

  
				



 


v

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.10

  	
  Severability

  	
  117

  
	
   

  	
   

  	
   

  
	
  Section 10.11

  	
  Interest Rate Limitation

  	
  117

  
	
   

  	
   

  	
   

  
	
  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 $244,600,000.00 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.


 


27

















 


“Secured Counterparty Event” means:


 


(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.


 


28
















 


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


 


“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 


 


29

















 


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).


 


“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.


 


51

















 


(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 


 


53

















 


Bank’s failure to exercise care when
determining whether 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 


 


54

















 


presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such 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 


 


55

















 


resignation to be effective
upon the appointment of a successor Issuing Bank, or, if no successor 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 


 


56

















 


Lender and the
Administrative Agent, require such Lender to promptly assign and delegate,
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 


 


61

















 


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 


 


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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.


 


66
















 


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 


 


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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 


 


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$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 (iii) 


 


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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.


 


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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;


 


113

















 


(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 


 


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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: Chairman/CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Mayer

  
	
   

  	
  Name: Jeffrey Mayer

  
	
   

  	
  Title: Chairman/CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Mayer

  
	
   

  	
  Name: Jeffrey Mayer

  
	
   

  	
  Title: Chairman/CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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: Chairman/CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Mayer

  
	
   

  	
  Name: Jeffrey Mayer

  
	
   

  	
  Title: Chairman/CEO

  



 


S-1

















 


	
   

  	
  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: /s/ Dale Keyes

  
	
   

  	
  Title: Vice President

  



 


S-2

















 


	
   

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel Twenge

  
	
   

  	
  Name: Daniel Twenge

  
	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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

  



 


S-3

















 


	
   

  	
  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 Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Jeffrey Mayer

  
	
   

  	
  Jeffrey Mayer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Chaitu Parikh

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Steven Murray

  
	
   

  	
  Steven Murray

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Carole R. Artman-Hodge

  
				



 


S-4
















 


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.


 


1

















 


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.


 


2

















 


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

  
							



 


3

















 


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”.


 


4

















 


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

  	
  %

  	
  $

  	
   

  



 


1

















 


	
  (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

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  



 


2

















 


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:

  



 


3
















 


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](1), (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.]


 






(1) Use second
option if certificate is dated on or afer April 30, 2009.


 


1

















 


1.             Section 6.17 –
Minimum Consolidated Tangible Net Worth(2)


 


	
   

  	
  (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 

  	
   

  	
  $

  	
   

  	
   

  



 






(2) For
month end and annual certificates.


 


2

















 


	
   

  	
  (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)(3)

  	
   

  	
  $

  	
   

  



 


	
  Minimum Consolidated Tangible Net Worth permitted
  under Section 6.17 of the Credit Agreement: 

  	
   

  	
  $ 

  	
  (4) 

  
	
   

  	
   

  	
   

  	
   

  
	
  Compliance

  	
   

  	
  Yes o  No o

  	
   

  



 






(3) 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.


(4) 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.


 


3

















 


2.             Section 6.18 –
Minimum Consolidated Working Capital(5)


 


	
   

  	
  (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 o           No o

  	
   

  



 






(5) For
month end and annual certificates.


 


4

















 


3.             Section 6.19 –
Maximum Aggregate Negative EBITDA.(6)


 


	
  (a) 

  	
   

  	
  Consolidated EBITDA for the three-month period ending the date hereof
  (from Attachment 1) 

  	
   

  	
  $

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
  [Month 1]

  	
   

  	
  [Month 2]

  	
   

  	
  [Month 3]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Borrowing Base Availability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (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  o       No 
  o

  	
   

  



 






(6) For month end and annual certificates.


 


5

















 


4.             Section 6.20 –
Interest Coverage Ratio.(7)


 


	
   

  	
   

  	
  (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  o      No 
  o  

  	
   

  



 






(7) For
month end and annual certificates.


 


6

















 


5.             Section 6.21 –
Average Leverage Ratio.(8)


 


	
   

  	
   

  	
  (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  o      No 
  o

  	
   

  



 






(8) For
month end and annual certificates.


 


7

















 


6.             Section 6.22 –
Monthly Leverage Ratio.(9)


 


	
   

  	
   

  	
  (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  o      No 
  o

  	
   

  



 






(9) For
all certificates.


 


8

















 


7.             [Section 6.24 –
Minimum Cash Requirement](10)


 


	
   

  	
  (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  o      No 
  o

  	
   

  
						



 






(10) For certificates dated on or after April 30, 2009.


 


9

















 


IN WITNESS
WHEREOF, I have hereto signed my name to this Compliance Certificate as of                       ,
              .


 


	
   

  	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


10

















 


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:

  	
   

  	
   

  	
   

  	
  $

  	
   

  



 


11
















 


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].


 


1

















 


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:

  



 


2

















 


EXHIBIT A


TO LETTER OF
CREDIT REQUEST


 


Form of Proposed Letter of Credit


 


See attached.


 


3

















 


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:

  	
   

  
						



 


2

















 


EXHIBIT E-2


 


FORM OF BRIDGE 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
                                        ,
or          assigns (“Payee”), the
aggregate principal amount of
                              
Dollars ($                      )
or, if less, the aggregate outstanding principal amount of the Bridge Loans (as
defined in the Credit Agreement referred to below) made by the Payee to the
Borrowers on the Closing Date, together with interest on the unpaid principal
amount of the Bridge Loans from the date of such Bridge Loans 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
Bridge Note in accordance with the terms of the Credit Agreement.


 


This Bridge Note is one of the Bridge 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. (“Holdings”) 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 Bridge Note that are defined in the Credit Agreement and not
otherwise defined in this Bridge 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 Bridge
Loans by the Payee to the Borrowers in the aggregate original principal amount
first above mentioned, the indebtedness of the Borrowers resulting from the
Bridge Loans being evidenced by this Bridge Note, and (b) contains
provisions for acceleration of the maturity of this Bridge Note upon the
happening of certain events stated in the Credit Agreement prior to the
maturity of this Bridge 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 Bridge Note, but no failure of the Payee to make such
recordings shall affect the Borrowers’ repayment obligations under this Bridge
Note.


 


This Bridge Note is secured by the Security Documents and guaranteed
pursuant to the terms of Article VIII of the Credit Agreement.


 

















 


Notwithstanding anything in this Bridge Note or the Credit Agreement to
the contrary, if this Bridge Note has not been paid in full in cash in
accordance with the terms hereof and the Credit Agreement by April 15,
2009, the Payee shall be entitled, at the sole option of the Payee, on any date
thereafter on which this Bridge Note has not been so paid, to convert all, but
not less than all of the then outstanding entire indebtedness of the Borrowers
resulting from the Bridge Loans evidenced by this Bridge Note (inclusive of
principal and interest) (hereinafter referred to as the “Total Value”) into a
number of fully paid and nonassessable shares of Series B Preferred Stock,
par value $.01 per share (the “Series B Stock”), of Parent equal to the
ratio of Total Value as of the date of conversion to the Original Series B
Stock Issue Price (as that term is defined in the Certificate of Designation of
the Series B Stock), except that no fractional shares of Series B
Stock shall be issued upon conversion. 
If a fractional share of Series B Stock would be issuable to the
Payee upon conversion but for the immediately preceding sentence, the number of
shares of Series B Stock to be received by the Payee shall be rounded up
to the nearest whole number. Upon exercise of the option to convert as herein
provided, the Borrowers shall pay to the Payee in cash a conversion fee equal
to the product of (i) the Total Value and (ii) 2.0% (the “Conversion
Fee”).


 


To surrender this Bridge Note for conversion, the Payee must (1) complete
and sign the conversion notice attached hereto and deliver such notice to
Borrowers, acting as agent for Holdings, in accordance with the notice
provisions set forth in the Credit Agreement, (2) surrender this Bridge
Note to the Borrowers and (3) furnish any reasonably appropriate
endorsements and transfer documents (in each case, at the sole cost and expense
of the Borrowers).  Upon such surrender,
the Borrowers shall deliver to the Payee one or more certificates representing
the number of shares of Series B Stock to which the Payee shall be
entitled as provided herein and pay the Conversion Fee to Payee via wire
transfer of immediately available funds.


 


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 Bridge Note shall
operate as a waiver of such rights.


 


[SIGNATURE PAGE FOLLOWS]


 


2

















 


THIS BRIDGE 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:

  	
   

  
					



 


 


For purposes of confirming its obligations
upon conversion of this Bridge Note into Series B Stock as provided above,
the undersigned has signed this Bridge Note where indicated below.


 


	
  ACCEPTED AND AGREED:

  	
   

  
	
   

  	
   

  
	
  MXENERGY HOLDINGS INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
					



 


 


[SIGNATURE PAGE TO BRIDGE NOTE.]


 

















 


CONVERSION NOTICE


 


To convert this Bridge Note into Series B
Stock, check the Box [    ]


 


If you want the stock certificate(s) made
out in another Person’s name fill in the form below:


 


 


(Print or type other Person’s name, address
and zip code)


 


Insert the other Person’s social security/tax
ID no.:


 


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Sign exactly as your name appears in the
  Bridge Note.)

  	
   

  
				



 


4

















 


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 


 


1

















 


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:

  



 


2
















 


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 


 


1

















 


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:

  



 


2

















 


EXHIBIT H


 


FORM OF FIRST AMENDED AND RESTATED
PLEDGE AGREEMENT


 


This First Amended and Restated Pledge Agreement dated as of August 1,
2006 (this “Pledge Agreement”) is made by and among MxEnergy Inc., a
Delaware corporation, and MxEnergy Electric Inc., a Delaware corporation (each
individually, a “Borrower” and collectively, the “Borrowers”),
MxEnergy Holdings Inc. (the “Parent”) and the undersigned subsidiaries
thereof (together with the Borrowers and the Parent, each individually, a “Pledgor”
and collectively, the “Pledgors”) and Société Générale, as
Administrative Agent (the “Administrative Agent”) for the ratable
benefit of itself and the other Secured Parties (as defined in the Credit
Agreement described below).


 


INTRODUCTION


 


A.            The Borrowers, each
of the other Pledgors, certain other Subsidiaries of the Parent, the lenders
from time to time party thereto (the “Lenders”) and the Administrative
Agent have entered into the First Amended and Restated Credit Agreement dated
as of August 1, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”);


 


B.            Each of the Pledgors
previously executed the Pledge Agreement dated December 19, 2005 (the
“Existing Pledge Agreement”) in favor of the Administrative Agent for the
ratable benefit of the Secured Parties, and it is a condition to the making of
the Revolving Advances and the Swingline Advances and the issuance of the
Letters of Credit that the Existing Pledge Agreement be amended and restated in
its entirety as set forth herein;


 


NOW, THEREFORE, each Pledgor hereby agrees with the Administrative
Agent for its benefit and the ratable benefit of the Secured Parties as
follows:


 


Section 1.               Definitions.


 


(a)           All
capitalized terms used herein but not otherwise defined herein that are defined
in the Credit Agreement shall have the meaning assigned to such terms in the
Credit Agreement.  Any terms defined in
Articles 8 or 9 of the Uniform Commercial Code as in effect in the State of New
York as of the date hereof (“UCC”) and not otherwise defined herein or
in the Credit Agreement shall have the meanings assigned to such terms in the
UCC.


 


(b)           All
meanings to defined terms, unless otherwise indicated, are to be equally
applicable to both the singular and plural forms of the terms defined.  Article, Section, Schedule, and Exhibit references
are to Articles and Sections of, and Schedules and Exhibits to, this Pledge
Agreement, unless otherwise specified. 
All references to instruments, documents, contracts, and agreements are
references to such instruments, documents, contracts, and agreements as the
same may be amended, supplemented, and otherwise modified from time to time,
unless otherwise specified.  The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this Pledge
Agreement shall refer to this Pledge Agreement as a whole and not to any
particular provision of this Pledge Agreement. 
As used herein, the term “including” means “including, without
limitation,”.  Paragraph headings have
been inserted in this Pledge 


 


1

















 


Agreement
as a matter of convenience for reference only and it is agreed that such
paragraph headings are not a part of this Pledge Agreement and shall not be
used in the interpretation of any provision of this Pledge Agreement.


 


Section 2.               Pledge.


 


(a)           Grant
of Pledge.  Each Pledgor hereby
pledges to the Administrative Agent, and grants to the Administrative Agent,
for its benefit and the ratable benefit of the Secured Parties, a continuing
lien on and security interest in the Pledged Collateral, as defined in Section 2(b) below.  This Pledge Agreement shall secure the prompt
performance and payment of all Obligations now or hereafter existing under the
Loan Documents or any Swap Contract to which a Lender or its Affiliate is a
party, including any extensions, modifications, substitutions, amendments and
renewals thereof (the “Secured Obligations”).


 


(b)           Pledged
Collateral.  “Pledged Collateral”
shall mean all of each Pledgor’s right, title, and interest in the following,
whether now owned or hereafter acquired by such Pledgor:


 


(i)            all
of the membership interests listed in the attached Schedule I issued to
such Pledgor (the “Membership Interests”), all such additional
membership interests of any issuer of such interests hereafter acquired by such
Pledgor, the certificates (if any) representing the Membership Interests and
all such additional membership interests, all of such Pledgor’s rights,
privileges, authority, and powers as a member of the issuer of such Membership
Interests under the applicable limited liability company operating agreement or
similar constitutive document of such issuer or under any applicable Legal
Requirement, and all rights to money or Property which such Pledgor now has or
hereafter acquires in respect of the Membership Interests, including, without
limitation, (A) any Proceeds from a sale by or on behalf of such Pledgor
of any of the Membership Interests, and (B) any distributions, dividends,
cash, instruments and other Property from time to time received or otherwise
distributed in respect of the Membership Interests, whether regular, special or
made in connection with the partial or total liquidation of the issuer and
whether attributable to profits, the return of any contribution or investment
or otherwise attributable to the Membership Interests or the ownership thereof
other than distributions received by such Pledgor in compliance with the Loan
Documents (collectively, the “Membership Interest distributions”);


 


(ii)           all
of the general and limited partnership interests listed in the attached Schedule
I issued to such Pledgor (the “Partnership Interests”), all such
additional limited or general partnership interests of any issuer of such
Partnership Interests hereafter acquired by such Pledgor, the certificates (if
any) representing the Partnership Interests and all such additional partnership
interests, all of such Pledgor’s rights, privileges, authority, and powers as a
limited or general partner of the issuer of such Partnership Interests under
the applicable partnership agreement or limited partnership agreement or
similar constitutive document of such issuer or under any applicable Legal
Requirement, and all rights to money or Property which such Pledgor now has or
hereafter acquires in 


 


2

















 


respect of the Partnership Interests, 
including, without limitation, (A) any Proceeds from a sale by or
on behalf of such Pledgor of any of the Partnership Interests, and (B) any
distributions, dividends, cash, instruments and other Property from time to
time received or otherwise distributed in respect of the Partnership Interests,
whether regular, special or made in connection with the partial or total
liquidation of the issuer and whether attributable to profits, the return of
any contribution or investment or otherwise attributable to the Partnership
Interests or the ownership thereof other than distributions received by such
Pledgor in compliance with the Loan Documents (collectively, the “Partnership
Interest distributions”);


 


(iii)          all
of the shares of stock listed in the attached Schedule I issued to such
Pledgor (the “Pledged Shares”), all such additional shares of stock of
any issuer of such Pledged Shares hereafter issued to such Pledgor, the
certificates representing the Pledged Shares and all such additional shares,
all of such Pledgor’s rights, privileges, authority, and powers as a
shareholder of the issuer of such Pledged Shares under the applicable articles
of incorporation, certificate of incorporation, bylaws or similar constitutive
document of such issuer or under any applicable Legal Requirements, and all
rights to money or Property which such Pledgor now has or hereafter acquires in
respect of the Pledged Shares, including, without limitation, (A) any
Proceeds from a sale by or on behalf of such Pledgor of any of the Pledged
Shares, and (B) any distributions, dividends, cash, instruments and other
Property from time to time received or otherwise distributed in respect of the
Pledged Shares, whether regular, special or made in connection with the partial
or total liquidation of the issuer and whether attributable to profits, the
return of any contribution or investment or otherwise attributable to the
Pledged Shares or the ownership thereof other than distributions received by
such Pledgor in compliance with the Loan Documents (collectively, the “Pledged
Shares distributions”);


 


(iv)          all
indebtedness listed in the attached Schedule I, owing to such Pledgor
from an Affiliate or Subsidiary of such Pledgor (collectively, the “Pledged
Debt”), all such additional indebtedness hereinafter owing to such Pledgor
from an Affiliate or Subsidiary of the Pledgor, any and all instruments
evidencing such indebtedness, including promissory notes, bonds, debentures and
other debt securities, and all interest, cash, instruments and other Property
from time to time received, receivable or otherwise distributed in respect of,
or in exchange for, any or all of the foregoing (collectively, the “Pledged
Debt distributions”);


 


(v)           all
of the equity interests in joint venture companies listed in the attached Schedule
I issued to such Pledgor (the “JV Interests”), all such additional
Equity Interests of any issuer of such JV Interests hereafter issued to such
Pledgor, the certificates representing the JV Interests and all such additional
Equity Interests, all of such Pledgor’s rights, privileges, authority, and
powers as an Equity Interest holder of such joint venture company under the
applicable constitutive documents of such joint venture company or under any
applicable 


 


3

















 


Legal Requirement, and all rights to money or Property of such Pledgor
of any of the JV Interests which such Pledgor now has or hereafter acquires
with respect of the JV Interests, including, without limitation, (A) any
Proceeds from a sale by or on behalf of such Pledgor of any of the JV
Interests, and (B) any distributions, dividends, cash, instruments and
other Property from time to time received or otherwise distributed in respect
of the JV Interests, whether regular, special or made in connection with the
partial or total liquidation of the issuer and whether attributable to profits,
the return of any contribution or investments or otherwise attributable to the
JV Interests or the ownership thereof other than distributions received by such
Pledgor in compliance with the Loan Documents (collectively the “JV Interest
distributions”; together with the Membership Interest distributions, the
Partnership Interest distributions, the Pledged Shares distributions, and the
Pledged Debt distributions, the “distributions”); and


 


(vi)          all
additions and accessions to, substitutions and replacements of, and all
products and proceeds from, the Pledged Collateral described in paragraphs (i),
(ii), (iii), (iv) and (v) of this Section 2(b).


 


Notwithstanding any of the other provisions
set forth in this Section 2(b), this Agreement shall not constitute a
grant of a security interest in any property to the extent that such grant of a
security interest is prohibited by any Legal Requirement of a Governmental
Authority, requires a consent not obtained pursuant to such Legal Requirement
or is prohibited by, or constitutes a breach or default under or results in the
termination of or requires any consent not obtained under, any contract,
license, agreement, instrument or other document evidencing or giving rise to
such property or, in the case of any Membership Interests, Partnership
Interests, Pledged Shares or JV Interests, any applicable shareholder or
similar agreement, except to the extent that such Legal Requirement or the term
in such contract, license, agreement, instrument or other document or
shareholder or similar agreement providing for such prohibition, breach,
default or termination or requiring such consent is ineffective under
applicable law.


 


(c)           Delivery
of Pledged Collateral.  All
certificates or instruments, if any, representing the Pledged Collateral shall
be delivered to the Administrative Agent and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance reasonably
satisfactory to the Administrative Agent. 
After the occurrence and during the continuance of an Event of Default,
the Administrative Agent shall have the right, upon prior written notice to the
Borrowers, to transfer to or to register in the name of the Administrative
Agent or any of its nominees any of the Pledged Collateral, subject to the
rights specified in Section 2(d). 
In addition, after the occurrence and during the continuance of an Event
of Default, the Administrative Agent shall have the right at any time to
exchange the certificates or instruments representing the Pledged Collateral
for certificates or instruments of smaller or larger denominations.


 


(d)           Rights
Retained by Pledgor.  Notwithstanding
the pledge in Section 2(a), so long as no Event of Default shall have
occurred and remain uncured:


 


(i)            or, if an Event of
Default shall have occurred and remain uncured, until such time thereafter as
such voting and other consensual rights have been 


 


4

















 


terminated
pursuant to Section 5(b) hereof, each Pledgor shall be entitled to
exercise any voting and other consensual rights pertaining to the Pledged
Collateral for any purpose that does not violate the terms of this Pledge
Agreement or the Credit Agreement; provided, however, that such Pledgor shall
not exercise or shall refrain from exercising any such right if such action
would have a materially adverse effect on the value of the Pledged Collateral;


 


(ii)           except as otherwise
provided in the Credit Agreement, each Pledgor shall be entitled to receive and
retain any dividends and other distributions paid on or in respect of the
Pledged Collateral and the Proceeds of any sale of the Pledged Collateral and
all payments of principal and interest on loans and advances made by such
Pledgor to the issuer of the Pledged Collateral; and


 


(iii)          at and after such
time as voting and other consensual rights have been terminated pursuant to Section 5
hereof, each Pledgor shall execute and deliver (or cause to be executed and
delivered) to the Administrative Agent all proxies and other instruments as the
Administrative Agent may reasonably request to (A) enable the
Administrative Agent to exercise the voting and other rights which such Pledgor
is entitled to exercise pursuant to subsection (i) of this Section 2(d),
and (B) to receive the dividends or other distributions and Proceeds of
sale of the Pledged Collateral and payments of principal and interest which
such Pledgor is authorized to receive and retain pursuant to subsection (ii) of
this Section 2(d).


 


(e)           Limitation
on Amount of Secured Obligations. 
Notwithstanding anything contained herein to the contrary, it is the
intention of each Pledgor, the Administrative Agent and the other Secured
Parties that the amount of the Secured Obligations secured by each Pledgor’s
interests in any of its Property shall be in, but not in excess of, the maximum
amount permitted by fraudulent conveyance, fraudulent transfer and other
similar law, rule or regulation of any Governmental Authority applicable
to such Pledgor.  Accordingly,
notwithstanding anything to the contrary contained in this Pledge Agreement or
in any other agreement or instrument executed in connection with the payment of
any of the Secured Obligations, the amount of the Secured Obligations secured
by each Pledgor’s interests in any of its Property pursuant to this Pledge
Agreement shall be limited to an aggregate amount equal to the largest amount
that would not render such Pledgor’s obligations hereunder or the liens and
security interest granted to the Administrative Agent hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provision of any other applicable law.


 


Section 3.               Pledgor’s Representations and
Warranties.  Each Pledgor represents
and warrants to the Administrative Agent and the Secured Parties, insofar as
the same relate to such Pledgor’s assets, actions, statements and business, as
follows:


 


(a)           The
Pledged Shares listed on the attached Schedule I have been duly authorized and
validly issued and is fully paid and nonassessable.


 


5

















 


(b)           Each
Pledgor is the legal and beneficial owner of the Pledged Collateral indicated
on Schedule I, free and clear of any Lien or option except for the security
interest created by this Pledge Agreement and Permitted Liens except for
restrictions on transfer under applicable federal and state securities laws.


 


(c)           No
authorization, authentication, approval, or other action by, and no notice to
or filing with, any Governmental Authority or regulatory body is required
either (i) for the pledge by such Pledgor of the Pledged Collateral
pursuant to this Pledge Agreement or for the execution, delivery, or
performance of this Pledge Agreement by such Pledgor (except to the extent that
financing statements are required under the UCC to be filed in order to
maintain a perfected security interest) or (ii) for the exercise by the
Administrative Agent or any Secured Party of the voting or other rights in this
Pledge Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Pledge Agreement (except as may be required in connection with such
disposition by laws affecting the offering and sale of securities generally).


 


(d)           Such
Pledgor has the corporate power and authority to deliver, pledge, assign and
transfer the Pledged Collateral to the Administrative Agent.


 


(e)           The
Membership Interests listed on Schedule I constitute 100% of the issued and
outstanding membership interests of each respective issuer thereof and all
Membership Interests in which any Pledgor has any ownership interest, provided
that if such issuer is a controlled foreign corporation under Section 957
of the Code, such Membership Interests constitute 65% of the issued and
outstanding membership interests of such issuer.  The Partnership Interests listed on the
attached Schedule I constitute 100% of the issued and outstanding partnership
interests of the respective issuer thereof and all Partnership Interests in
which any Pledgor has any ownership interest, provided that if such
issuer is a controlled foreign corporation under Section 957 of the Code,
such Partnership Interests constitute 65% of the issued and outstanding partnership
interests of such issuer.  The Pledged
Shares listed on the attached Schedule I constitute 100% of the issued and
outstanding shares of capital stock of the respective issuer thereof and all
Pledged Shares in which Pledgor has any ownership interest, provided that
if such issuer is a controlled foreign corporation under Section 957 of
the Code, such Pledged Shares constitute 65% of the issued and outstanding
capital stock of such issuer.  The JV
Interests listed on Schedule I constitute 100% of the JV Interests in which any
Pledgor has any ownership interest.


 


(f)            The
name of each Pledgor set forth on the signature pages to this Pledge
Agreement is the exact legal name of such Pledgor.


 


Section 4.               Pledgors’ Covenants.  During the term of this Pledge Agreement and
until the termination of the Revolving Commitments, the payment in full of the
Secured Obligations (other than contingent indemnification obligations), and
the expiration or termination of all Letters of Credit , each Pledgor covenants
and agrees with the Administrative Agent that:


 


(a)           Protect
Collateral.  Each Pledgor will
warrant and defend the rights and title herein granted unto the Administrative
Agent in and to the Pledged Collateral (and all right, title, and interest
represented by the Pledged Collateral) against the claims and demands of all
Persons whomsoever (other than Permitted Liens).


 


6

















 


(b)           Transfer,
Other Liens, and Additional Shares. 
Each Pledgor will not (i) sell or otherwise dispose of, or grant
any option with respect to, any of the Pledged Collateral or (ii) create
or permit to exist any Lien upon or with respect to any of the Pledged
Collateral, except for the Liens and security interests under this Pledge
Agreement and Permitted Liens.  Each
Pledgor further agrees that it will (A) cause each issuer of the Pledged
Collateral not to issue any other membership interests, partnership interests,
capital stock, or other securities in addition to or in substitution for the
Pledged Collateral issued by such issuer, except to such Pledgor and (B) pledge
hereunder, promptly upon its acquisition (directly or indirectly) thereof, any
additional membership interests, partnership interests, capital stock, joint
venture interests or other securities of an issuer of the Pledged
Collateral.  Such Pledgor shall not
approve any amendment or modification of any of the Pledged Collateral unless
it shall have given at least ten Business Days’ prior written notice (or such
lesser period as may be agreed by the Administrative Agent in writing) to the
Administrative Agent and such amendment or modification would not be materially
adverse to the interests of the Secured Parties.


 


(c)           Jurisdiction
of Formation.  Such Pledgor shall not
amend, supplement, modify or restate its articles or certificate of
incorporation, bylaws, limited liability company agreements, or other
equivalent constitutive documents if such amendment, supplement, modification
or restatement would be materially adverse to the interests of the Secured
Parties.


 


(d)           Further
Assurances.  Each Pledgor agrees
that, at its sole cost and expense, such Pledgor will promptly execute and
deliver all further instruments and documents, and take all further action,
that may be reasonably necessary and that the Administrative Agent or any
Secured Party may reasonably request, in order to perfect, maintain and protect
any security interest granted or purported to be granted hereby or to enable
the Administrative Agent or any Secured Party to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral.


 


Section 5.               Remedies upon Default.  If any Event of Default shall have occurred
and be continuing:


 


(a)           UCC
Remedies.  To the extent permitted by
law, the Administrative Agent may (and at the request of the Majority Lenders
shall) exercise in respect of the Pledged Collateral, in addition to other
rights and remedies provided for in this Pledge Agreement or otherwise
available to it, all the rights and remedies of a secured party under the UCC
(whether or not the UCC applies to the affected Pledged Collateral).  This Pledge Agreement shall not be construed
to authorize the Administrative Agent to take any action prohibited by the UCC
or to constitute a waiver by any Pledgor of any right that the UCC does not
permit such Pledgor to waive.


 


(b)           Dividends
and Other Rights.


 


(i)            All
rights of each Pledgor to exercise the voting and other consensual rights which
it would otherwise be entitled to exercise pursuant to Section 2(d)(i) may
be exercised by the Administrative Agent if the Administrative Agent so elects
and gives written notice of such election to such Pledgor, all rights of each
Pledgor to receive the dividends and other distributions on or in respect of
the Pledged Collateral and the proceeds of sale of the Pledged 


 


7

















 


Collateral which it would otherwise be authorized to receive and retain
pursuant to Section 2(d)(ii) shall cease at such time as such written
notice is deemed effective pursuant to the provisions of the Credit Agreement
related to effectiveness of notices.


 


(ii)           All
dividends and other distributions on or in respect of the Pledged Collateral
and the proceeds of sale of the Pledged Collateral that are thereafter received
by any Pledgor shall be received in trust for the benefit of the Administrative
Agent, shall be segregated from other funds of such Pledgor, and shall be
promptly paid over to the Administrative Agent as Pledged Collateral in the
same form as so received (with any necessary endorsement).


 


(c)           Sale
of Pledged Collateral. The Administrative Agent may sell all or part of the
Pledged Collateral at public or private sale, at any of the Administrative
Agent’s offices or elsewhere, for cash, on credit, or for future delivery, and
upon such other terms as the Administrative Agent may deem commercially
reasonable in accordance with applicable laws. 
Each Pledgor agrees that to the extent permitted by law such sales may
be made without notice.  If notice is
required by law, each Pledgor hereby deems 10 days’ advance notice of the time
and place of any public sale or the time after which any private sale is to be
made reasonable notification, recognizing that if the Pledged Collateral
threatens to decline speedily in value or is of a type customarily sold on a
recognized market shorter notice may be reasonable.  The Administrative Agent shall not be
obligated to make any sale of the Pledged Collateral regardless of notice of
sale having been given.  The Administrative
Agent may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.  Each Pledgor shall cooperate fully with the
Administrative Agent in all respects in selling or realizing upon all or any
part of the Pledged Collateral.  In
addition, each Pledgor shall fully comply with federal and state securities
laws and take such actions as may be necessary to permit the Administrative
Agent to sell or otherwise dispose of any securities representing the Pledged
Collateral in compliance with such laws; provided, however, that this provision
shall not be construed to require any Pledgor to register any of the Pledged
Collateral pursuant to federal or any state securities laws.


 


(d)           Exempt
Sale.  If, in the opinion of the
Administrative Agent, there is any question that a public or semipublic sale or
distribution of any Pledged Collateral will violate any state or federal
securities law, the Administrative Agent in its discretion (i) may offer
and sell securities privately to purchasers who will agree to take them for
investment purposes and not with a view to distribution and who will agree to
imposition of restrictive legends on the certificates representing the
security, or (ii) may sell such securities in an intrastate offering under
Section 3(a)(11) of the Securities Act of 1933, as amended, and no sale so
made in good faith by the Administrative Agent shall be deemed to be not “commercially
reasonable” solely because so made.  Each
Pledgor shall cooperate fully with the Administrative Agent in all reasonable
respects in selling or realizing upon all or any part of the Pledged
Collateral; provided, however, that this provision shall not be construed to
require any Pledgor to register any of the Pledged Collateral pursuant to
federal or any state securities laws.


 


8
















 


(e)           Application
of Collateral. The proceeds of any sale or other realization upon all or
any part of the Pledged Collateral shall be applied by the Administrative Agent
as set forth in Section 7.06 of the Credit Agreement.


 


(f)            Cumulative
Remedies.  Each right, power and
remedy herein specifically granted to the Administrative Agent or otherwise
available to it shall be cumulative, and shall be in addition to every other
right, power and remedy herein specifically given or now or hereafter existing
at law, in equity, or otherwise, and each such right, power and remedy, whether
specifically granted herein or otherwise existing, may be exercised at any time
and from time to time as often and in such order as may be deemed expedient by
the Administrative Agent in its sole discretion.  No failure on the part of the Administrative
Agent to exercise, and no delay in exercising, and no course of dealing with
respect to, any such right, power or remedy, shall operate as a waiver thereof,
nor shall any single or partial exercise of any such rights, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right.


 


Section 6.               Administrative Agent as
Attorney-in-Fact for Pledgors.


 


(a)           Administrative
Agent Appointed Attorney-in-Fact.  Each
Pledgor hereby irrevocably appoints the Administrative Agent as such Pledgor’s
attorney-in-fact, with full authority after the occurrence and during the
continuance of an Event of Default to act for such Pledgor and in the name of
such Pledgor, and, in the Administrative Agent’s discretion, subject to such
Pledgor’s revocable rights specified in Section 2(d), to take any action
and to execute any instrument which the Administrative Agent may deem necessary
or advisable to accomplish the purposes of this Pledge Agreement, including,
without limitation, to receive, indorse, and collect all instruments made
payable to the Pledgor representing the proceeds of the sale of the Pledged
Collateral, or any distribution in respect of the Pledged Collateral and to give
full discharge for the same.  Each
Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an
interest.


 


(b)           Administrative
Agent May Perform. The Administrative Agent may from time to time
perform any act which any Pledgor agrees hereunder to perform and which such
Pledgor shall fail to perform after being requested in writing so to perform
(it being understood that no such request need be given after the occurrence and
during the continuance of any Event of Default and after notice thereof by the
Administrative Agent to such Pledgor) and the Administrative Agent may from
time to time take any other action which the Administrative Agent reasonably
deems necessary for the maintenance, preservation or protection of any of the
Pledged Collateral or of its security interest therein.  The Administrative Agent shall be obligated
to provide notice to such Pledgor of any action taken hereunder by telecopy or
by registered mail.


 


(c)           Administrative
Agent Has No Duty.  The powers
conferred on the Administrative Agent hereunder are solely to protect its
interest in the Pledged Collateral and shall not impose any duty on it to
exercise any such powers.  Except for
reasonable care of any Pledged Collateral in its possession and the accounting
for moneys actually received by it hereunder, the Administrative Agent shall
have no duty as to any Pledged Collateral or responsibility for taking any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Pledged Collateral.


 


9

















 


(d)           Reasonable
Care.  The Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
the Pledged Collateral in its possession if the Pledged Collateral is accorded
treatment substantially equal to that which the Administrative Agent accords
its own property, it being understood that the Administrative Agent shall have
no responsibility for (i) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders, or other matters relative
to any Pledged Collateral, whether or not the Administrative Agent has or is
deemed to have knowledge of such matters, or (ii) taking any necessary
steps to preserve rights against any parties with respect to any Pledged
Collateral.


 


Section 7.               Miscellaneous.


 


(a)           Expenses.  Each Pledgor will upon demand pay to the
Administrative Agent for its benefit and the benefit of the Secured Parties the
amount of any reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of its counsel and of any experts, which the Administrative
Agent and the Secured Parties may incur in connection with (i) the
custody, preservation, use, or operation of, or the sale, collection, or other
realization of, any of the Pledged Collateral, (ii) the exercise or
enforcement of any of the rights of the Administrative Agent or any Secured
Party hereunder, and (iii) the failure by any Pledgor to perform or
observe any of the provisions hereof.


 


(b)           Amendments,
Etc.  No amendment or waiver of any
provision of this Pledge Agreement nor any consent to any departure by any
Pledgor herefrom shall be effective unless made in writing and authenticated by
each affected Pledgor and the Administrative Agent.  In addition, no such amendment, waiver or
consent shall be effective unless given or entered into with the necessary
approvals of either the Majority Lenders or all Lenders as required under the
terms of the Credit Agreement.  Any such
amendment, waiver or consent, whether by the Administrative Agent or the
Administrative Agent and the Lenders shall be effective only in the specific
instance and for the specific purpose for which given.


 


(c)           Addresses
for Notices.  All notices and other
communications provided for hereunder shall be in the manner and to the
addresses set forth in the Credit Agreement.


 


(d)           Continuing
Security Interest; Transfer of Interest. 
This Pledge Agreement shall create a continuing security interest in the
Pledged Collateral and, unless expressly released by the Administrative Agent,
shall (i) remain in full force and effect until payment in full of the
Secured Obligations (including all Letter of Credit Obligations), the termination
or expiration of all Letters of Credit and the termination of all obligations
of the Issuing Bank and the Lenders in respect of Letters of Credit, and the
termination or expiration of the Revolving Commitments, (ii) be binding
upon the Pledgors, the Administrative Agent, the Secured Parties and their
successors, and assigns, and (iii) inure, together with the rights and
remedies of the Administrative Agent hereunder, to the benefit of and be
binding upon, the Administrative Agent, the Secured Parties and their
respective successors, transferees, and assigns.  Upon the payment in full and termination of
the Secured Obligations, the security interest granted hereby shall terminate
and all rights to the Pledged Collateral shall revert to the Pledgors to the
extent such Pledged Collateral shall not have been sold or otherwise applied
pursuant to the terms hereof.  Without
limiting the generality of the foregoing clause, when any Lender assigns or
otherwise transfers any interest held by it under the Credit Agreement or other
Loan Document


 


10

















 


to any
other Person pursuant to the terms of the Credit Agreement or other Loan
Document, that other Person shall thereupon become vested with all the benefits
held by such Lender under this Pledge Agreement.  Upon any such termination, the Administrative
Agent will, at the Borrowers’ expense, deliver all Pledged Collateral to the
Borrowers, execute and deliver to the Borrowers such documents as the Borrowers
shall reasonably request and take any other actions reasonably requested to
evidence or effect such termination.


 


(e)           Waivers.  Each Pledgor hereby waives:


 


(i)            promptness,
diligence, notice of acceptance, and any other notice with respect to any of
the Secured Obligations and this Pledge Agreement;


 


(ii)           any
requirement that the Administrative Agent or any Secured Party protect, secure,
perfect, or insure any Lien or any Property subject thereto or exhaust any
right or take any action against any Pledgor or any other Person or any
collateral; and


 


(iii)          any
duty on the part of the Administrative Agent to disclose to any Pledgor any
matter, fact, or thing relating to the business, operation, or condition of
such Pledgor and its respective assets now known or hereafter known by such
Person.


 


(f)            Severability.  Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.


 


(g)           Choice
of Law.  This Pledge Agreement shall
be governed by and construed and enforced in accordance with the laws of the
state of New York, except to the extent that the validity or perfection of the
security interests hereunder, or remedies hereunder, in respect of any
particular Collateral are governed by the laws of a jurisdiction other than the
state of New York.


 


(h)           Counterparts.  For the convenience of the parties, this
Pledge Agreement may be executed in multiple counterparts and by different
parties hereto in separate counterparts (including by facsimile), each of which
for all purposes shall be deemed to be an original, and all such counterparts
shall together constitute but one and the same Pledge Agreement.


 


(i)            Reinstatement.  If, at any time after payment in full by the
Pledgors of all Secured Obligations and termination of the Administrative Agent’s
security interest, any payments on the Secured Obligations previously made by
any Pledgor or any other person must be disgorged by the Administrative Agent
for any reason whatsoever, including, without limitation, the insolvency,
bankruptcy or reorganization of such Pledgor or such Person, this Pledge
Agreement and the Administrative Agent’s security interests herein shall be
reinstated as to all disgorged payments as though such payments had not been
made, and such Pledgor shall sign and deliver to the Administrative Agent all
documents, and shall do such other acts and things, as may be necessary to
reinstate and perfect the Administrative Agent’s security interest.


 


11

















 


(j)            Additional
Pledgors.  Pursuant to Section 5.12
of the Credit Agreement, each Subsidiary of the Parent that was not a
Subsidiary of the Parent on the date of the Credit Agreement is required to
enter into this Pledge Agreement as a Pledgor upon becoming a Subsidiary of the
Parent.  Upon execution and delivery
after the date hereof by the Administrative Agent and such Subsidiary of an
instrument in the form of Annex 1, such Subsidiary shall become a
Pledgor hereunder with the same force and effect as if originally named as a
Pledgor herein.  The execution and
delivery of any instrument adding an additional Pledgor as a party to this
Pledge Agreement shall not require the consent of any other Pledgor
hereunder.  The rights and obligations of
each Pledgor hereunder shall remain in full force and effect notwithstanding
the addition of any new Pledgor as a party to this Pledge Agreement.


 


(k)           Intercreditor Agreement.  To the fullest extent possible, the terms and
provisions of the Intercreditor Agreement shall be read together with the terms
and provisions of this Pledge Agreement so that the terms and provisions of
this Pledge Agreement do not conflict with the terms and provisions of the
Intercreditor Agreement; provided, however, notwithstanding the foregoing, in
the event that any of the terms or provisions of this Pledge Agreement conflict
with any terms or provisions of the Intercreditor Agreement, the terms or
provisions of the Intercreditor Agreement shall govern and control for all
purposes.


 


Section 8.               Acknowledgment
and Restatement.


 


(a)           Acknowledgment of
Security Interests.


 


(i)            Each
Pledgor hereby acknowledges, confirms and agrees that the Administrative Agent
for the ratable benefit of the Secured Parties shall continue to have a
security interest in and lien upon the Pledged Collateral heretofore granted to
the Administrative Agent for the ratable benefit of the Secured Parties
pursuant to the Loan Documents to secure the Secured Obligations, as well as
any Pledged Collateral granted under this Pledge Agreement or under any of the
other Loan Documents or otherwise granted to or held by the Administrative
Agent or any Secured Party.


 


(ii)           The liens
and security interests of the Administrative Agent for the benefit of the
Secured Parties in the Pledged Collateral shall be deemed to be continuously
granted and perfected from the earliest date of the granting and perfection of
such liens and security interests to the Administrative Agent for the ratable
benefit of the Secured Parties, whether under this Pledge Agreement or any of
the other Loan Documents.


 


(b)           Loan
Documents.  Each Pledgor hereby
acknowledges, confirms and agrees that: (i) the Loan Documents have been
duly executed and delivered by such Pledgor, the Borrowers and the Guarantors
and are in full force and effect as of the date hereof and (ii) the
agreements and obligations of such Pledgor contained in the Loan Documents
constitute the legal, valid and binding obligations of such Pledgor enforceable
against it in accordance with its terms and such Pledgor has no valid defense
to the enforcement of such obligations and (iii) the Administrative Agent
on behalf of the Secured Parties is entitled to all of the rights and remedies
provided for in


 


12

















 


favor
of the Administrative Agent for the benefit of the Secured Parties in the Loan
Documents, as amended and restated by this Pledge Agreement.


 


(c)           Restatement.  The amendment and restatement contained
herein shall not, in any manner, be construed to constitute payment of, or
impair, limit, cancel or extinguish, or constitute a novation in respect of,
the indebtedness and other obligations and liabilities of any Pledgor evidenced
by or arising under the Loan Documents, and the liens and security interests in
the Pledged Collateral (as such term is defined herein) of the Administrative
Agent for the ratable benefit of the Secured Parties securing such indebtedness
and other obligations and liabilities, which shall not in any manner be
impaired, limited, terminated, waived or released, but shall continue in full
force and effect in favor of Administrative Agent for the ratable benefit of
Secured Parties.


 


[Remainder of Page Intentionally
Left Blank]


 


13

















 


The parties hereto have caused this Pledge Agreement to be duly
executed as of the date first above written.


 


	
   

  	
  PLEDGORS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Executive Vice President and Chief

  Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Executive Vice President and Chief

  Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ONLINE CHOICE INC.

  
	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
  INFOMETER.COM INC.

  
	
   

  	
  MXENERGY CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY CAPITAL CORP.

  
	
   

  	
  MXENERGY GAS CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL HOLDINGS

  CORP.

  
	
   

  	
  MXENERGY GAS CAPITAL CORP.

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL CORP.

  
	
   

  	
  TOTAL GAS & ELECTRIC INC.

  
	
   

  	
  TOTAL GAS & ELECTRICITY (PA) INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Carole R.
  Artman-Hodge

  
	
   

  	
   

  	
  Vice
  President

  
				



 


Signature Page to First Amended
and Restated Pledge Agreement


 

















 


	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ GÉNÉRALE,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature Page
to First Amended and Restated Pledge Agreement


 

















 


SCHEDULE I



PLEDGED COLLATERAL


 


I.              Membership
Interests


 


[to be provided by Pledgors]


 


II.            Partnership
Interests


 


[to be provided by Pledgors]


 


III.           Pledged
Shares


 


[to be provided by Pledgors]


 


IV.           Intercompany Indebtedness


 


[to be provided by Pledgors]


 


V.            Joint Venture Interests


 


[to be provided by Pledgors]


 
















 


Annex 1 to the


First Amended
and Restated Pledge Agreement


 


SUPPLEMENT NO.  [           ]  dated as of [                ]
(the “Supplement”), to the First Amended and Restated Pledge Agreement
dated as of August 1, 2006 (as amended, supplemented or otherwise modified
from time to time, the “Pledge Agreement”), among MxEnergy Inc., a
Delaware corporation, MxEnergy Electric Inc., a Delaware corporation (each
individually, a “Borrower” and collectively, the “Borrowers”),
MxEnergy Holdings Inc. (the “Parent”) and certain Subsidiaries thereof
(together with the Parent, each individually, a “Guarantor” and
collectively, the “Guarantors”, and together with the Parent and the
Borrowers, each individually a “Pledgor” and collectively, the “Pledgors”)
and Société Générale, as Administrative Agent (the “Administrative Agent”)
for the ratable benefit of itself and the other Secured Parties (as defined in
the Credit Agreement described below).


 


A.            Reference
is made to that certain First Amended and Restated Credit Agreement dated as of
August 1, 2006 (as it may be amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among the
Borrowers, the Guarantors, the lenders from time to time party thereto
(individually, a “Lender” and collectively, the “Lenders”), and
Administrative Agent.


 


B.            Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Pledge Agreement and the Credit Agreement.


 


C.            The
Pledgors have entered into the Pledge Agreement in order to induce the Lenders
to make Revolving Advances, the Swing Line Lender to make Swing Line Advances,
and the Issuing Bank to issue Letters of Credit.  Pursuant to Section 5.12 of the Credit
Agreement, each Subsidiary of the Parent that was not a Subsidiary of the
Parent on the date of the Credit Agreement is required to enter into the Pledge
Agreement as a Pledgor upon becoming a Subsidiary of the Parent.  Section 7(j) of the Pledge
Agreement provides that additional Subsidiaries of the Parent may become
Pledgors under the Pledge Agreement by execution and delivery of an instrument
in the form of this Supplement.  The
undersigned Subsidiary of the Parent (the “New Pledgor”) is executing
this Supplement in accordance with the requirements of the Credit Agreement to
become a Pledgor under the Pledge Agreement in order to induce the Lenders to
make additional Revolving Advances, the Swing Line Lender to make additional
Swing Line Advances, and the Issuing Bank to issue additional Letters of Credit
and as consideration for Revolving Advances and Swing Line Advances previously
made and Letters of Credit previously issued..


 


Accordingly, the Administrative Agent and the New Pledgor hereby agree
as follows:


 


Section 1.               In accordance with Section 7(j) of
the Pledge Agreement, the New Pledgor by its signature below hereby becomes a
party to the Pledge Agreement as a Pledgor thereunder with the same force and
effect as if originally named therein as a Pledgor and, without limiting the
generality of the foregoing, the New Pledgor hereby agrees (a) to all the
terms and provisions of the Pledge Agreement applicable to it as a Pledgor
thereunder and (b) represents and warrants that each of the
representations and warranties made by it as a Pledgor thereunder are true and
correct on and as of the date hereof (after giving effect to this Supplement)
in all material 


 

















 


respects.  In
furtherance of and without limiting the generality of the foregoing, the New
Pledgor, as security for the prompt and complete payment and performance in
full of all of the Secured Obligations (as defined in the Pledge Agreement),
does hereby pledge and grant to the Secured Party, and its successors and
assigns, a continuing security interest in and lien on all of the New Pledgor’s
right, title and interest in and to the Pledged Collateral (as defined in the
Pledge Agreement) of the New Pledgor, whether now existing or owned or
hereafter arising or acquired.  Each
reference to a “Pledgor” in the Pledge Agreement shall be deemed to include the
New Pledgor.  The Pledge Agreement is
hereby incorporated herein by reference.


 


Section 2.               The New Pledgor represents and warrants
to the Secured Party that this Supplement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors’ rights generally and subject, as to enforceability, to equitable
principles of general application (regardless of whether enforcement is sought
in a proceeding in equity or at law)).


 


Section 3.               This Supplement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract.  This Supplement shall become effective when
the Administrative Agent shall have received counterparts of this Supplement
that, when taken together, bear the signatures of the New Pledgor and the
Administrative Agent.  Delivery of an
executed signature page to this Supplement by facsimile transmission shall
be as effective as delivery of a manually signed counterpart of this
Supplement.


 


Section 4.               The New Pledgor hereby represents and
warrants that set forth on Schedule 1 attached hereto are (a) its sole
jurisdiction of formation and type of organization, (b) the location of
all records concerning its Pledged Collateral, (c) its federal tax
identification number and the organizational number, (d) all names used by
it during the last five years prior to the date of this Supplement, and (e) all
of the Pledged Collateral issued to or owned by such Pledgor on the date
hereof.


 


Section 5.               Except as expressly supplemented hereby,
the Pledge Agreement shall remain in full force and effect.


 


Section 6.               THIS SUPPLEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
PLEDGED COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK.


 


Section 7.               In case any one or more of the
provisions contained in this Supplement should be held invalid, illegal or unenforceable
in any respect, neither party hereto shall be required to comply with such
provision for so long as such provision is held to be invalid, illegal or
unenforceable, but the validity, legality and enforceability of the remaining
provisions contained herein and in the Pledge Agreement shall not in any way be
affected or impaired.  The 


 

















 


parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.


 


Section 8.               All communications and notices hereunder
shall be in writing and given as provided in the Pledge Agreement.  All communications and notices hereunder to
the New Pledgor shall be given to it at the address set forth under its
signature hereto.


 


Section 9.               The New Pledgor agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees, other charges and
disbursements of counsel for the Administrative Agent.


 


THIS SUPPLEMENT, THE PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
DEFINED IN THE CREDIT AGREEMENT, 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 HERETO.


 


IN WITNESS WHEREOF, the New Pledgor and the Secured Party have duly
executed this Supplement to the Pledge Agreement as of the day and year first
above written.


 


	
   

  	
  [Name of New
  Pledgor],

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Secured Party

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


Schedule 1


Supplement No.          


to the First
Amended and Restated Pledge Agreement


 


	
  New Pledgor:

  	
   

  	
  [PLEDGOR]

  
	
   

  	
   

  	
   

  
	
  Jurisdiction
  of Formation / Filing:

  	
   

  	
  [STATE]

  
	
   

  	
   

  	
   

  
	
  Type of
  Organization:

  	
   

  	
  [ENTITY
  TYPE]

  
	
   

  	
   

  	
   

  
	
  Address
  where records for

  	
   

  	
   

  
	
  Pledged
  Collateral are kept:

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
   

  
	
  Organizational
  Number:

  	
   

  	
                                          

  
	
   

  	
   

  	
   

  
	
  Federal Tax
  Identification Number:

  	
   

  	
                                          

  
	
   

  	
   

  	
   

  
	
  Trade Names:

  	
   

  	
                                          

  
	
   

  	
   

  	
   

  
	
  Prior Names:

  	
   

  	
                                          

  
	
   

  	
   

  	
   

  
	
  Pledged
  Collateral:

  	
   

  	
                                          

  



 

















 


EXHIBIT I


 


FORM OF FIRST AMENDED AND RESTATED
SECURITY AGREEMENT


 


This First Amended and Restated Security Agreement dated as of August 1,
2006 (this “Agreement”) is by and among MxEnergy Inc., a Delaware
corporation, MxEnergy Electric Inc., a Delaware corporation (each individually,
a “Borrower” and collectively, the “Borrowers”), MxEnergy
Holdings Inc. (the “Parent”) and certain Subsidiaries thereof (together
with the Parent, each individually, a “Guarantor” and collectively, the “Guarantors”,
and together with the Parent and the Borrowers, each individually a “Grantor”
and collectively, the “Grantors”) and Société Générale, as
Administrative Agent (the “Administrative Agent”) for the ratable
benefit of itself and the other Secured Parties (as defined in the Credit
Agreement described below).


 


INTRODUCTION


 


A.            This
Agreement is entered into in connection with the First Amended and Restated
Credit Agreement dated as of August 1, 2006 (as it may be amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Borrowers, the Guarantors, the lenders from time to time party
thereto (individually, a “Lender” and collectively, the “Lenders”),
and Administrative Agent.


 


B.            Each
Grantor (other than the Borrowers) is a Subsidiary or Affiliate of the
Borrowers and will derive substantial direct and indirect benefit from (i) the
transactions contemplated by the Credit Agreement and the other Loan Documents
and (ii) the Swap Contracts entered into by any Loan Party with a Lender
or an Affiliate of a Lender.


 


C.            Each
of the Grantors previously executed the Security Agreement dated December 19,
2005 (the “Existing Security Agreement”) in favor of the Administrative Agent
for the ratable benefit of the Secured Parties, and it is a condition to the
making of the Revolving Advances and the Swingline Advances and the issuance of
the Letters of Credit that the Existing Security Agreement be amended and
restated in its entirety as set forth herein.


 


NOW, THEREFORE, each Grantor hereby agrees
with the Administrative Agent for the benefit of the Secured Parties as
follows:


 


Section 1.               Definitions; Interpretation.  (a) All capitalized terms not otherwise
defined in this Agreement that are defined in the Credit Agreement shall have
the meanings assigned to such terms by the Credit Agreement.  Any terms used in this Agreement that are
defined in the UCC (as defined below) and not otherwise defined herein or in
the Credit Agreement, shall have the meanings assigned to those terms by the
UCC.  All meanings to defined terms,
unless otherwise indicated, are to be equally applicable to both the singular
and plural forms of the terms defined. 
The following terms shall have the meanings specified below:


 


“Accounts” means
an “account” as defined in the UCC, including, without limitation, all of any
Grantor’s rights to payment for goods or electricity sold or leased, services
performed, or otherwise, whether now in existence or arising from time to time
hereafter,


 


1

















 


including, without
limitation, all rights arising under any of the Contracts or evidenced by an
account, note, contract, security agreement, Chattel Paper (including, without
limitation, tangible Chattel Paper and electronic Chattel Paper), or other
evidence of indebtedness or security, together with all of the right, title and
interest of any Grantor in and to (i) all security pledged, assigned,
hypothecated or granted to or held by any Grantor to secure the foregoing, (ii) all
of any Grantor’s right, title and interest in and to any goods or services, the
sale of which gave rise thereto, (iii) all guarantees, endorsements and
indemnifications on, or of, any of the foregoing, (iv) all powers of
attorney granted to any Grantor for the execution of any evidence of
indebtedness or security or other writing in connection therewith, (v) all
books, correspondence, credit files, records, ledger cards, invoices, and other
papers relating thereto, including without limitation all similar information
stored on a magnetic medium or other similar storage device and other papers
and documents in the possession or under the control of any Grantor or any
computer bureau from time to time acting for any Grantor, (vi) all
evidences of the filing of financing statements and other statements granted to
any Grantor and the registration of other instruments in connection therewith
and amendments thereto, notices to other creditors or secured parties, and
certificates from filing or other registration officers, (vii) all credit
information, reports and memoranda relating thereto, and (viii) all other
writings related in any way to the foregoing.


 


“Agreement” means
this First Amended and Restated Security Agreement, as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.


 


“Cash Collateral”
means all amounts from time to time held in any checking, savings, deposit or
other account of such Grantor, including, if applicable, the Administrative
Agent’s Account and the LC Cash Collateral Account, all monies, proceeds or
sums due or to become due therefrom or thereon and all documents (including,
but not limited to passbooks, certificates and receipts) evidencing all funds
and investments held in such accounts.


 


“Collateral” has
the meaning set forth in Section 2 of this Agreement.


 


“Contracts” means
all contracts to which any Grantor now is, or hereafter will be bound, or to
which such Grantor is or hereafter will be a party, beneficiary or assignee,
all Insurance Contracts, and all exhibits, schedules and other attachments to
such contracts, as the same may be amended, supplemented or otherwise modified
or replaced from time to time.


 


“Contract Documents”
means all Instruments, Chattel Paper, letters of credit, bonds, guarantees or
similar documents evidencing, representing, arising from or existing in respect
of, relating to, securing or otherwise supporting the payment of, the Contract
Rights.


 


“Contract Rights”
means (i) all (A) of any Grantor’s rights to payment under any
Contract or Contract Document and (B) payments due and to become due to
any Grantor under any Contract or Contract Document, in each case whether as
contractual obligations,


 


2

















 


damages or otherwise; (ii) all
of any Grantor’s claims, rights, powers, or privileges and remedies under any
Contract or Contract Document; and (iii) all of any Grantor’s rights under
any Contract or Contract Document to make determinations, to exercise any
election (including, but not limited to, election of remedies) or option or to
give or receive any notice, consent, waiver or approval together with full
power and authority with respect to any Contract or Contract Document to
demand, receive, enforce or collect any of the foregoing rights or any property
which is the subject of any Contract or Contract Document, to enforce or
execute any checks, or other instruments or orders, to file any claims and to
take any action which, in the opinion of the Administrative Agent, may be
necessary or advisable in connection with any of the foregoing.


 


“Document” means a
bill of lading, dock warrant, dock receipt, warehouse receipt or order for the
delivery of goods, and also any other document which in the regular course of
business or financing is treated as adequately evidencing that the person in
possession of it is entitled to receive, hold and dispose of the document and
the goods it covers.


 


“General Intangibles”
means all general intangibles now or hereafter owned by any Grantor, or in
which any Grantor holds or acquires any other right, title or interest,
constituting “general intangibles” or “payment intangibles” under the UCC,
including, but not limited to, all trademarks, trademark applications,
trademark registrations, tradenames, fictitious business names, business names,
company names, business identifiers, prints, labels, trade styles and service
marks (whether or not registered), trade dress, including logos and/or designs,
copyrights, patents, patent applications, goodwill of any Grantor’s business
symbolized by any of the foregoing, trade secrets, license rights, license
agreements, permits, franchises, and any rights to tax refunds to which any
Grantor is now or hereafter may be entitled.


 


“Insurance Contracts”
means all contracts and policies of insurance and re-insurance maintained or
required to be maintained by or on behalf of any Grantor under the Loan
Documents.


 


“Inventory” means
all inventory of any Grantor, or in which any Grantor holds or acquires any
right, title or interest, of every type or description, now owned or hereafter
acquired and wherever located, whether raw, in process or finished, and all
materials usable in processing the same and all documents of title covering any
inventory, including, without limitation, work in process, materials used or
consumed in any Grantor’s business, now owned or hereafter acquired or
manufactured by any Grantor and held for sale in the ordinary course of its
business, all present and future substitutions therefor, parts and accessories
thereof and all additions thereto, all Proceeds thereof and products of such
inventory in any form whatsoever, and any other item constituting “inventory”
under the UCC.


 


“Inventory Records”
means all books, records, other similar property, and General Intangibles at
any time relating to Inventory.


 


“Proceeds” means
all proceeds (as defined in the UCC) of any or all of the Collateral, including
without limitation (i) any and all proceeds of, all claims for, and all
rights of


 


3

















 


any Grantor to receive
the return of any premiums for, any insurance, indemnity, warranty or guaranty
payable from time to time with respect to any of the Collateral, (ii) any
and all payments (in any form whatsoever) made or due and payable from time to
time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any Governmental Authority
(or any Person acting under color of any Governmental Authority), (iii) all
proceeds received or receivable when any or all of the Collateral is sold,
exchanged or otherwise disposed, whether voluntarily, involuntarily, in
foreclosure or otherwise, (iv) all claims of any Grantor for damages
arising out of, or for breach of or default under, any Collateral, (v) all
rights of any Grantor to terminate, amend, supplement, modify or waive
performance under any Contracts, to perform thereunder and to compel
performance and otherwise exercise all remedies thereunder, and (vi) any
and all other amounts from time to time paid or payable under or in connection
with any of the Collateral.


 


“Secured Obligations”
means all Obligations now or hereafter existing under the Loan Documents or any
Swap Contract to which a Lender or its Affiliate is a party, including any
extensions, modifications, substitutions, amendments and renewals thereof,
whether for principal, interest, fees, expenses, indemnification, or otherwise.


 


“Swap Contract”
has the meaning set forth in the Credit Agreement.


 


“UCC” shall mean
the Uniform Commercial Code as the same may, from time to time, be in effect in
the State of New York; provided, however, in the event that, by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of the security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New
York, the term “UCC” shall mean the Uniform Commercial Code as in effect in
such other jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions related to
such provisions.


 


(b)           All
meanings to defined terms, unless otherwise indicated, are to be equally
applicable to both the singular and plural forms of the terms defined.  Article, Section, Schedule, and Exhibit references
are to Articles and Sections of and Schedules and Exhibits to this Agreement,
unless otherwise specified.  All
references to instruments, documents, contracts, and agreements are references
to such instruments, documents, contracts, and agreements as the same may be
amended, supplemented, and otherwise modified from time to time, unless
otherwise specified.  The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.  As used
herein, the term “including” means “including, without limitation,”. Paragraph
headings have been inserted in this Agreement as a matter of convenience for
reference only and it is agreed that such paragraph headings are not a part of
this Agreement and shall not be used in the interpretation of any provision of
this Agreement.


 


Section 2.               Grant of
Security Interest.


 


(a)           As
collateral security for the prompt and complete payment and performance when
due of all Secured Obligations, each Grantor hereby grants to the
Administrative Agent for


 


4

















 


the
benefit of the Secured Parties a security interest in all of such Grantor’s
right, title and interest in, to and under, all items described in this Section 2,
whether now owned or hereafter acquired by such Grantor and wherever located
and whether now owned or hereafter existing or arising (collectively, the “Collateral”):


 




	
  (i)

  	
   

  	
  all
  Contracts, all Contract Rights, Contract Documents and Accounts associated
  with such Contracts and each and every document granting security to such
  Grantor under any such Contract;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  all
  Accounts;

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  all
  Inventory;

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  all
  Equipment;

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  all
  General Intangibles;

  
	
   

  	
   

  	
   

  
	
  (vi)

  	
   

  	
  all
  Investment Property;

  
	
   

  	
   

  	
   

  
	
  (vii)

  	
   

  	
  all
  Fixtures;

  
	
   

  	
   

  	
   

  
	
  (viii)

  	
   

  	
  all
  Cash Collateral;

  
	
   

  	
   

  	
   

  
	
  (ix)

  	
   

  	
  any
  right to receive a payment under any Swap Contract in connection with a
  termination thereof;

  
	
   

  	
   

  	
   

  
	
  (x)

  	
   

  	
  (A) all
  policies of insurance and Insurance Contracts, now or hereafter held by or on
  behalf of such Grantor, including casualty and liability, business
  interruption, and any title insurance, (B) all Proceeds of insurance,
  and (C) all rights, now or hereafter held by such Grantor to any
  warranties of any manufacturer or contractor of any other Person;

  
	
   

  	
   

  	
   

  
	
  (xi)

  	
   

  	
  any
  and all liens and security interests (together with the documents evidencing
  such security interests) granted to such Grantor by an obligor to secure such
  obligor’s obligations owing under any Instrument, Chattel Paper, or Contract
  which is pledged hereunder or with respect to which a security interest in
  such Grantor’s rights in such Instrument, Chattel Paper, or Contract is
  granted hereunder;

  
	
   

  	
   

  	
   

  
	
  (xii)

  	
   

  	
  any
  and all guaranties given by any Person for the benefit of such Grantor which
  guarantees the obligations of an obligor under any Instrument, Chattel Paper
  or Contract, which are pledged hereunder;

  
	
   

  	
   

  	
   

  
	
  (xiii)

  	
   

  	
  without
  limiting the generality of the foregoing, all other personal property, goods,
  Instruments, Chattel Paper, Documents, Fixtures, credits, claims, demands and
  assets of such Grantor whether now existing or hereafter acquired from time
  to time; and

  






 


5

















 




	
  (xiv)

  	
   

  	
  any
  and all additions, accessions and improvements to, all substitutions and
  replacements for and all products and Proceeds of or derived from all of the
  items described above in this Section 2.

  






 


Notwithstanding any of the other provisions set
forth in this Section 2(a), this Agreement shall not constitute a grant of
a security interest in any property to the extent that such grant of a security
interest is prohibited by any Legal Requirement of a Governmental Authority,
requires a consent not obtained pursuant to such Legal Requirement or is
prohibited by, or constitutes a breach or default under or results in the
termination of or requires any consent not obtained under, any contract,
license, agreement, instrument or other document evidencing or giving rise to
such property except to the extent that such Legal Requirement or the term in
such contract, license, agreement, instrument or other document or shareholder
or similar agreement providing for such prohibition, breach, default or
termination or requiring such consent is ineffective under applicable law.


 


(b)           Notwithstanding
anything contained herein to the contrary, it is the intention of each Grantor,
the Administrative Agent and the other Secured Parties that the amount of the
Secured Obligations secured by each Grantor’s interests in any of its Property
shall be in, but not in excess of, the maximum amount permitted by fraudulent
conveyance, fraudulent transfer and other similar law, rule or regulation
of any Governmental Authority applicable to such Grantor. Accordingly,
notwithstanding anything to the contrary contained in this Agreement in any
other agreement or instrument executed in connection with the payment of any of
the Secured Obligations, the amount of the Secured Obligations secured by each
Grantor’s interests in any of its Property pursuant to this Agreement shall be
limited to an aggregate amount equal to the largest amount that would not
render such Grantor’s obligations hereunder or the liens and security interest
granted to the Administrative Agent hereunder subject to avoidance under Section 548
of the United States Bankruptcy Code or any comparable provision of any other
applicable law.


 


Section 3.               Representations and Warranties.  Each Grantor hereby represents and warrants
to the Administrative Agent and the other Secured Parties as follows:


 


(a)           Records.  Such Grantor’s sole jurisdiction of formation
and type of organization are as set forth in Schedule 1 attached
hereto.  All records concerning the
Accounts, General Intangibles, or any other Collateral applicable to such
Grantor are located at the address for such Grantor on such Schedule 1.  None of the Accounts is evidenced by a
promissory note or other instrument.


 


(b)           Other
Liens.  Such Grantor is, and will be
the record, legal, and beneficial owner of all of the Collateral pledged by
such Grantor free and clear of any Lien, except for the Permitted Liens and
Liens contemplated or permitted by the Intercreditor Agreement.  No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral is, or
will be, on file in any recording office, except such as may be filed in
connection with this Agreement or in connection with other Permitted Liens,
Liens contemplated by the Intercreditor Agreement or for which satisfactory
releases have been received by the Administrative Agent.


 


6
















 


(c)                                  Lien
Priority and Perfection.


 


(i)                                     Subject
only to Permitted Liens and Liens contemplated by the Intercreditor Agreement,
this Agreement creates valid and continuing security interests in the
Collateral, securing the payment and performance of all the Secured
Obligations.  Upon the filing of
financing statements with the jurisdictions listed in Schedule 1, the
security interests granted to the Administrative Agent hereunder will
constitute valid first-priority perfected security interests in all Collateral
with respect to which a security interest can be perfected by the filing of a
financing statement, subject only to Permitted Liens and Liens contemplated by
the Intercreditor Agreement.


 


(ii)                                  No
consent of any other Person and no authorization, approval, or other action by,
and no notice to or filing with any Governmental Authority is required (A) for
the grant by such Grantor of the pledge, assignment, and security interest
granted hereby or for the execution, delivery, or performance of this Agreement
by such Grantor, (B) for the validity, perfection, or maintenance of the
pledge, assignment, lien, and security interest created hereby (including the
first-priority (subject to Permitted Liens) nature thereof), except for
security interests that cannot be perfected by filing under the UCC, or (C) for
the exercise by the Administrative Agent of the rights provided for in this
Agreement or the remedies in respect of the Collateral pursuant to this
Agreement, except (1) those consents to assignment of licenses, permits,
approvals, and other rights that are as a matter of law not assignable, (2) those
consents, approvals, authorizations, actions, notices or filings which have
been duly obtained or made and, in the case of the maintenance of perfection,
the filing of continuation statements under the UCC, and (3) those filings
and actions described in Section 3(c)(i).


 


(d)           Tax
Identification Number and Organizational Number.  The federal tax identification number of such
Grantor and the organizational number of such Grantor are as set forth in Schedule
1.


 


(e)           Tradenames;
Prior Names.  Except as set forth on Schedule
1, such Grantor has not conducted business under any name other than its
current name during the last five years prior to the date of this Agreement.


 


Section 4.                                            Covenants.


 


(a)           Further
Assurances.


 


(i)                                     Each
Grantor agrees that from time to time, at its expense, such Grantor shall
promptly execute and deliver all instruments and documents, and take all
action, that may be reasonably necessary or desirable, or that the
Administrative Agent may reasonably request, in order to perfect and protect
any pledge, assignment, or security interest granted or intended to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral.  Without limiting the generality of the
foregoing, each Grantor (A) at the request of Administrative Agent, shall
execute such instruments, endorsements or notices, as may be reasonably
necessary or as the Administrative Agent may reasonably request, in order to
perfect and preserve the assignments and security interests granted or
purported to be granted hereby, (B) shall, at the reasonable request of
the 


 


7

















 


Administrative
Agent, mark conspicuously each material document included in the Collateral,
each Chattel Paper included in the Accounts, and each of its records pertaining
to the Collateral with a legend, in form and substance satisfactory to the Administrative
Agent, including that such document, Chattel Paper, or record is subject to the
pledge, assignment, and security interest granted hereby, (C) shall, if
any Collateral shall be evidenced by a promissory note or other instrument or
chattel paper, deliver and pledge to the Administrative Agent hereunder such
note or instrument or chattel paper duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the Administrative Agent, and (D) authorizes the
Administrative Agent to file any financing statements, amendments or
continuations without the signature of such Grantor to the extent permitted by
applicable law in order to perfect or maintain the perfection of any security
interest granted under this Agreement (including, without limitation, financing
statements using an “all assets” or “all personal property” collateral
description).


 


(ii)                                  Each
Grantor shall pay all filing, registration and recording fees and all refiling,
re-registration and re-recording fees, and all other reasonable expenses
incident to the execution and acknowledgment of this Agreement, any assurance,
and all federal, state, county and municipal stamp taxes and other taxes,
duties, imports, assessments and charges arising out of or in connection with
the execution and delivery of this Agreement, any agreement supplemental
hereto, any financing statements, and any instruments of further assurance.


 


(iii)                               Each
Grantor shall promptly provide to the Administrative Agent all information and
evidence the Administrative Agent may reasonably request concerning the
Collateral to enable the Administrative Agent to enforce the provisions of this
Agreement.


 


(b)                                 Change
of Name; State of Formation.  Each
Grantor shall give the Administrative Agent at least 30 days’ prior written
notice before it (i) in the case of any Grantor that is not a “registered
organization” (as such term is defined in Section 9-102 of the UCC),
changes the location of its principal place of business and chief executive
office, (ii) changes the location of its jurisdiction of formation or
organization, (iii) changes the location of the Equipment, Inventory, or
original copies of any Chattel Paper evidencing Accounts, or (iv) uses a
trade name other than its current name used on the date hereof.


 


(c)                                  Right
of Inspection.  Subject to the
limitations set forth in Section 5.08 of the Credit Agreement, each
Grantor shall hold and preserve, at its own cost and expense satisfactory and
complete records of the Collateral, including, but not limited to, Instruments,
Chattel Paper, Contracts, and records with respect to the Accounts, and will
permit representatives of the Administrative Agent, upon reasonable advance
notice, at any time during normal business hours to inspect and copy them.  Upon the occurrence and during the
continuation of any Event of Default, at the Administrative Agent’s request,
each Grantor shall promptly deliver copies of any and all such records to the
Administrative Agent.


 


(d)                                 Liability
Under Contracts and Accounts. 
Notwithstanding anything in this Agreement to the contrary, (i) the
execution of this Agreement shall not release any Grantor from its obligations
and duties under any of the Contract Documents, or any other Contract or
Instrument which are part of the Collateral and Accounts included in the
Collateral, (ii) the exercise by the Administrative Agent of any of its
rights hereunder shall not release any Grantor 


 


8

















 


from
any of its duties or obligations under any Contract Documents, or any other
Contract or Instrument which are part of the Collateral and Accounts included
in the Collateral, and (iii) the Administrative Agent shall not have any
obligation or liability under any Contract Documents, or any other Contract or
Instrument which are part of the Collateral and Accounts included in the
Collateral by reason of the execution and delivery of this Agreement, nor shall
the Administrative Agent be obligated to perform any of the obligations or
duties of any Grantor thereunder or to take any action to collect or enforce
any claim for payment assigned hereunder.


 


(e)                                  Transfer
of Certain Collateral; Release of Certain Security Interest.  Each Grantor agrees that it shall not sell,
assign, or otherwise dispose of any Collateral, except as otherwise permitted
under the Credit Agreement.  The
Administrative Agent shall promptly, at the Grantors’ expense, execute and
deliver all further instruments and documents, and take all further action that
such Grantor may reasonably request to release its security interest in any
Collateral which is disposed of in compliance with the terms of the Credit
Agreement.


 


(f)                                    Accounts.  Except as could not reasonably be expected to
have a Material Adverse Effect, each Grantor agrees that it will use
commercially reasonable efforts to ensure that each Account (i) is and
will be, in all material respects, the genuine, legal, valid, and binding
obligations of the account debtor in respect thereof, representing an unsatisfied
obligation of such account debtor, (ii) is and will be, in all material
respects, enforceable in accordance with its terms, is not and will not be
subject to any setoffs, defenses, taxes, counterclaims, except in the ordinary
course of business, (iii) is and will be, in all material respects, in
compliance with all applicable laws, whether federal, state, local or foreign,
and (iv) which if evidenced by Chattel Paper, will not require the consent
of the account debtor in respect thereof in connection with its assignment
hereunder.


 


(g)                                 Negotiable
Instrument.  If any Grantor shall at
any time hold or acquire any Negotiable Instruments, including promissory
notes, such Grantor shall forthwith endorse, assign and deliver the same to the
Administrative Agent, accompanied by such instruments of transfer or assignment
duly executed in blank as the Administrative Agent may from time to time
reasonably request.


 


(h)                                 Other
Covenants of Grantor.  Each Grantor
agrees that (i) any action or proceeding to enforce this Agreement may be
taken by the Administrative Agent either in such Grantor’s name or in the
Administrative Agent’s name, as the Administrative Agent may deem necessary,
and  (ii) such Grantor will, until
the payment in full of the Secured Obligations (including all Letter of Credit
Obligations), the termination of all obligations of the Issuing Bank and the
Lenders in respect of Letters of Credit, and the termination or expiration of
the Revolving Commitments, warrant and defend its title to the Collateral and
the interest of the Administrative Agent in the Collateral against any claim or
demand of any Persons (subject to Permitted Liens and the terms of the
Intercreditor Agreement) which could reasonably be expected to materially
adversely affect such Grantor’s title to, or the Administrative Agent’s right
or interest in, such Collateral.


 


Section 5.                                            Termination
of Security Interest.  Upon the
payment in full of the Secured Obligations (including all Letter of Credit
Obligations), the termination or expiration of all Letters of Credit and the
termination of all obligations of the Issuing Bank and the Lenders in 


 


9

















 


respect of Letters of Credit, and the termination or
expiration of the Revolving Commitments, the security interest granted hereby
shall terminate and all rights to the Collateral shall revert to the applicable
Grantor to the extent such Collateral shall not have been sold or otherwise
applied pursuant to the terms hereof. 
Upon any such termination, the Administrative Agent will, at the
Grantors’ expense, execute and deliver to the applicable Grantor such documents
(including, without limitation, UCC-3 termination statements) as such Grantor
shall reasonably request to evidence such termination.


 


Section 6.                                            Reinstatement.
If, at any time after payment in full of all Secured Obligations (including all
Letter of Credit Obligations), the termination or expiration of all Letters of
Credit and the termination of all obligations of the Issuing Bank and the
Lenders in respect of Letters of Credit, and the termination or expiration of
the Revolving Commitments, any payments on the Secured Obligations previously
made must be disgorged by the Administrative Agent for any reason whatsoever,
including, without limitation, the insolvency, bankruptcy or reorganization of
any Grantor or any other Person, this Agreement and the Administrative Agent’s
security interests herein shall be reinstated as to all disgorged payments as
though such payments had not been made, and each Grantor shall sign and deliver
to the Administrative Agent all documents, and shall do such other acts and
things, as may be necessary to reinstate and perfect the Administrative Agent’s
security interest.  EACH GRANTOR SHALL DEFEND AND INDEMNIFY EACH SECURED
PARTY FROM AND AGAINST ANY CLAIM, DAMAGE, LOSS, LIABILITY, COST OR EXPENSE
UNDER THIS SECTION 6 (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES)
IN THE DEFENSE OF ANY SUCH ACTION OR SUIT INCLUDING SUCH CLAIM, DAMAGE, LOSS,
LIABILITY, COST, OR EXPENSE ARISING AS A RESULT OF THE INDEMNIFIED SECURED
PARTY’S OWN NEGLIGENCE BUT EXCLUDING SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST,
OR EXPENSE THAT IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED SECURED PARTY’S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.


 


Section 7.                                            Remedies
upon Event of Default.


 


(a)                                  If
any Event of Default has occurred and is continuing, the Administrative Agent
may (and shall at the written request of the Majority Lenders), subject to the
terms of the Intercreditor Agreement, (i) proceed to protect and enforce
the rights vested in it by this Agreement or otherwise available to it,
including but not limited to, the right to cause all revenues and other moneys
pledged hereby as Collateral to be paid directly to it, and to enforce its
rights hereunder to such payments and all other rights hereunder by such
appropriate judicial proceedings as it shall deem most effective to protect and
enforce any of such rights, either at law or in equity or otherwise, whether
for specific enforcement of any covenant or agreement contained in any of the
Contract Documents, or in aid of the exercise of any power therein or herein
granted, or for any foreclosure hereunder and sale under a judgment or decree
in any judicial proceeding, or to enforce any other legal or equitable right
vested in it by this Agreement or by law; (ii) cause any action at law or
suit in equity or other proceeding to be instituted and prosecuted and enforce
any rights hereunder or included in the Collateral, subject to the provisions
and requirements thereof; (iii) sell or otherwise dispose of any or all of
the Collateral or cause the Collateral to be sold or otherwise disposed of in
one or more sales or transactions, at 


 


10

















 


such
prices and in such manner as may be commercially reasonable, and for cash or on
credit or for future delivery, without assumption of any credit risk, at public
or private sale, without demand of performance or notice of intention to sell
or of time or place of sale (except such notice as is required by applicable
statute and cannot be waived), it being agreed that the Administrative Agent
may be a purchaser on behalf of the Secured Parties or on its own behalf at any
such sale and that the Administrative Agent, any other Secured Party, or any
other Person who may be a bona fide purchaser for value and without notice of
any claims of any or all of the Collateral so sold shall thereafter hold the
same absolutely free from any claim or right of whatsoever kind, including any
equity of redemption of any Grantor, any such demand, notice or right and
equity being hereby expressly waived and released to the extent permitted by
law; (iv) incur reasonable expenses, including reasonable attorneys’ fees,
reasonable consultants’ fees, and other costs appropriate to the exercise of
any right or power under this Agreement; (v) perform any obligation of any
Grantor hereunder and make payments, purchase, contest or compromise any
encumbrance, charge or lien, and pay taxes and expenses, without, however, any
obligation to do so; (vi) in connection with any acceleration and
foreclosure, take possession of the Collateral and render it usable and repair
and renovate the same, without, however, any obligation to do so, and enter
upon any location where the Collateral may be located for that purpose,
control, manage, operate, rent and lease the Collateral, collect all rents and
income from the Collateral and apply the same to reimburse the Secured Parties
for any cost or expenses incurred hereunder or under any of the Loan Documents
and to the payment or performance of any Grantor’s obligations hereunder or
under any of the Loan Documents, and apply the balance to the other Secured
Obligations and any remaining excess balance to whomsoever is legally entitled
thereto; (vii) secure the appointment of a receiver for the Collateral or
any part thereof; (viii) require any Grantor to, and each Grantor hereby
agrees that it will at its expense and upon request of the Administrative Agent
forthwith, assemble all or part of the Collateral as directed by the
Administrative Agent and make it available to the Administrative Agent at a
place to be designated by the Administrative Agent which is reasonably
convenient to both parties; (ix) exercise any other or additional rights
or remedies of a secured party under the UCC; or (x) occupy any premises
owned or leased by any Grantor where the Collateral or any part thereof is
assembled for a reasonable period in order to effectuate its rights and
remedies hereunder or under law, without obligation to any Grantor in respect
of such occupation.  If, pursuant to
applicable law, prior notice of sale of the Collateral under this Section is
required to be given to any Grantor, each Grantor hereby acknowledges that the
minimum time required by such applicable law, or if no minimum time is
specified, 10 days, shall be deemed a reasonable notice period.   The Administrative Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been
given.  The Administrative Agent may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.


 


(b)                                 All
reasonable costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by the Administrative Agent in connection with any suit or
proceeding in connection with the performance by the Administrative Agent of
any of the agreements contained in any of the Contract Documents, or in
connection with any exercise of its rights or remedies hereunder, pursuant to
the terms of this Agreement, shall constitute additional Secured Obligations
secured by this Agreement and shall be paid on demand by the Grantors to the
Administrative Agent on behalf of the Secured Parties.


 


11

















 


Section 8.                                            Remedies
Cumulative; Delay Not Waiver.


 


(a)                                  No
right, power or remedy herein conferred upon or reserved to the Administrative
Agent is intended to be exclusive of any other right, power or remedy, and
every such right, power and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder or otherwise shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.  Resort to any or all security now or
hereafter held by the Administrative Agent may be taken concurrently or
successively and in one or several consolidated or independent judicial actions
or lawfully taken nonjudicial proceedings, or both.


 


(b)                                 No
delay or omission of the Administrative Agent to exercise any right or power
accruing upon the occurrence and during the continuance of any Event of Default
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and every power
and remedy given by this Agreement may be exercised from time to time, and as
often as shall be deemed expedient, by the Administrative Agent.


 


Section 9.                                            Contract
Rights.  Subject to the terms of the
Intercreditor Agreement, the Administrative Agent may exercise any of the
Contract Rights and remedies of any Grantor under or in connection with the
Instruments, Chattel Paper, or Contracts which represent Accounts, the General
Intangibles, or which otherwise relate to the Collateral, including, without
limitation, any rights of any Grantor to demand or otherwise require payment of
any amount under, or performance of any provisions of, the Instruments, Chattel
Paper, or Contracts which represent Accounts, or the General Intangibles.


 


Section 10.                                      Accounts.


 


(a)                                  Subject
to the terms of the Intercreditor Agreement, the Administrative Agent may, or
may direct any Grantor to, take any action the Administrative Agent deems
necessary or advisable to enforce collection of the Accounts, including,
without limitation, notifying the account debtors or obligors under any
Accounts of the assignment of such Accounts to the Administrative Agent and,
upon the occurrence and continuation of an Event of Default, directing such
account debtors or obligors to make payment of all amounts due or to become due
directly to the Administrative Agent. 
Upon such notification and direction, and at the expense of the
Grantors, the Administrative Agent may enforce collection of any such Accounts,
and adjust, settle, or compromise the amount or payment thereof in the same
manner and to the same extent as any Grantor might have done.


 


(b)                                 After
receipt by any Grantor of the notice referred to in Section 10(a) above
that an Event of Default has occurred and is continuing, all amounts and
proceeds (including instruments) received by such Grantor in respect of the
Accounts shall be received in trust for the benefit of the Administrative Agent
hereunder, shall be segregated from other funds of such Grantor, and shall
promptly be paid over to the Administrative Agent in the same form as so
received (with any necessary endorsement) to be held as Collateral.  No Grantor shall adjust, 


 


12

















 


settle, or compromise the amount or payment
of any Account, nor release wholly or partly any account debtor or obligor
thereof, nor allow any credit or discount thereon.


 


Section 11.                                      Application
of Collateral.  Subject to the terms
of the Intercreditor Agreement, the proceeds of any sale of, or other
realization (other than that received from a sale or other realization
permitted by the Credit Agreement) upon all or any part of the Collateral
pledged by any Grantor shall be applied by the Administrative Agent as set
forth in Section 7.06 of the Credit Agreement.


 


Section 12.                                      Administrative
Agent as Attorney-in-Fact for Grantor. 
Each Grantor hereby constitutes and irrevocably appoints the
Administrative Agent, acting for and on behalf of itself and the Secured
Parties and each successor or assign of the Administrative Agent and the
Secured Parties, the true and lawful attorney-in-fact of such Grantor, with
full power and authority in the place and stead of such Grantor and in the name
of such Grantor, the Administrative Agent or otherwise to take any action and
execute any instrument at the written direction of the Secured Parties and
enforce all rights, interests and remedies of such Grantor with respect to the
Collateral, including the right:


 


(a)                                  to
ask, require, demand, receive and give acquittance for any and all moneys and
claims for moneys due and to become due under or arising out of the any of the
other Collateral, including without limitation, any Insurance Contracts;


 


(b)                                 to
elect remedies thereunder and to endorse any checks or other instruments or
orders in connection therewith;


 


(c)                                  to
file any claims or take any action or institute any proceedings in connection
therewith which the Administrative Agent may deem to be necessary or advisable;


 


(d)                                 to
pay, settle or compromise all bills and claims which may be or become liens or
security interests against any or all of the Collateral, or any part thereof,
unless a bond or other security satisfactory to the Administrative Agent has
been provided; and


 


(e)                                  upon
foreclosure, to do any and every act which any Grantor may do on its behalf
with respect to the Collateral or any part thereof and to exercise any or all
of such Grantor’s rights and remedies under any or all of the Collateral;


 


provided, however,
that such rights are subject to the terms of the Intercreditor Agreement and
that the Administrative Agent shall not exercise any such rights except upon
the occurrence and continuation of an Event of Default.  THIS POWER OF ATTORNEY IS
A POWER COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE.


 


Section 13.                                      Administrative
Agent May Perform.  The
Administrative Agent may from time-to-time perform any act which any Grantor
has agreed hereunder to perform and which such Grantor shall fail to perform
after being requested in writing so to perform (it being understood that no
such request need be given after the occurrence and during the continuance of
any Event of Default and after notice thereof by the Administrative Agent to any
Grantor) and the Administrative Agent may from time-to-time take any other
action which the Administrative Agent deems necessary for the maintenance,
preservation or protection of any of the Collateral 


 


13

















 


or of its security interest therein, and the
reasonable expenses of the Administrative Agent incurred in connection
therewith shall be part of the Secured Obligations and shall be secured hereby.


 


Section 14.                                      Administrative
Agent Has No Duty.  The powers
conferred on the Administrative Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty on it to exercise any
such powers.  Except for reasonable care
of any Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Administrative Agent shall have no duty as to any
Collateral or responsibility for taking any necessary steps to preserve rights
against prior parties or any other rights pertaining to any Collateral.


 


Section 15.                                      Reasonable
Care.  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.


 


Section 16.                                      Payments
Held in Trust.  During the
continuance of an Event of Default, subject to the terms of the Intercreditor
Agreement, all payments received by any Grantor under or in connection with any
Collateral shall be received in trust for the benefit of the Administrative
Agent, and shall be segregated from other funds of such Grantor and shall be
forthwith paid over to the Administrative Agent in the same form as received
(with any necessary endorsement).


 


Section 17.                                      Miscellaneous.


 


(a)                                  Expenses.  Each Grantor will upon demand pay to the
Administrative Agent for its benefit and the benefit of the Secured Parties the
amount of any reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of its counsel and of any experts, which the Administrative
Agent and the Secured Parties may incur in connection with (i) the
custody, preservation, use, or operation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (ii) the exercise or
enforcement of any of the rights of the Administrative Agent or any Secured
Party hereunder, and (iii) the failure by any Grantor to perform or
observe any of the provisions hereof.


 


(b)                                 Amendments;
Etc.  No amendment or waiver of any
provision of this Agreement nor consent to any departure by any Grantor
herefrom shall be effective unless the same shall be in writing and
authenticated by each affected Grantor and the Administrative Agent.  In addition, no such amendment, waiver or
consent shall be effective unless given or entered into with the necessary
approvals of either the Majority Lenders or all Lenders as required under the
terms of the Credit Agreement.  Any such
amendment, waiver or consent, whether by the Administrative Agent or the
Administrative Agent and the Lenders shall be effective only in the specific
instance and for the specific purpose for which given.


 


(c)                                  Addresses
for Notices.  All notices and other
communications provided for hereunder shall be made in the manner and to the
addresses set forth in the Credit Agreement or on the signature pages hereto.


 


14

















 


(d)                                 Continuing
Security Interest; Transfer of Interest. 
This Agreement shall create a continuing security interest in the
Collateral and, unless expressly released by the Administrative Agent, shall (i) 
remain in full force and effect until the payment in full of the Secured
Obligations (including all Letter of Credit Obligations), the termination or
expiration of all Letters of Credit and the termination of all obligations of
the Issuing Bank and the Lenders in respect of Letters of Credit other than if
such Letters of Credit are collateralized in the manner permitted by the Credit
Agreement, and the termination or expiration of the Revolving Commitments, (ii) be
binding upon each Grantor and its successors, transferees and assigns, and (iii) inure,
together with the rights and remedies of the Administrative Agent hereunder, to
the benefit of and be binding upon, the Administrative Agent, the Issuing Bank,
and the Lenders and their respective successors, transferees, and assigns, and
to the benefit of and be binding upon, the Swap Counterparties, and each of
their respective successors, transferees, and assigns to the extent such
successors, transferees, and assigns of a Swap Counterparty is a Lender or an
Affiliate of a Lender.  Without limiting
the generality of the foregoing clause, when any Lender assigns or otherwise
transfers any interest held by it under the Credit Agreement or other Loan
Document to any other Person pursuant to the terms of the Credit Agreement or
such other Loan Document, that other Person shall thereupon become vested with
all the benefits held by such Lender under this Agreement.


 


(e)                                  Severability.  Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.


 


(f)                                    Choice
of Law.  This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of New York, except to the extent that the validity or perfection of the
security interests hereunder, or remedies hereunder, in respect of any
particular Collateral are governed by the laws of a jurisdiction other than the
State of New York.


 


(g)                                 Counterparts.  The parties may execute this Agreement in any
number of duplicate originals, each of which constitutes an original, and all
of which, collectively, constitute only one agreement.  The parties may execute this Agreement in
counterparts, each of which constitutes an original, and all of which,
collectively, constitute only one agreement. 
Delivery of an executed counterpart signature page by facsimile is
as effective as executing and delivering this Agreement in the presence of the
other parties to this Agreement.  In
proving this Agreement, a party must produce or account only for the executed
counterpart of the party to be charged.


 


(h)                                 Headings.  Paragraph headings have been inserted in this
Agreement as a matter of convenience for reference only and it is agreed that
such paragraph headings are not a part of this Agreement and shall not be used
in the interpretation of any provision of this Agreement.


 


(i)                                     Conflicts.   In the event of any explicit or
implicit conflict between any provision of this Agreement and any provision of
the Intercreditor Agreement, the terms of the Intercreditor Agreement shall be
controlling.


 


15
















 


(j)                                     Additional
Grantors. 
Pursuant to Section 5.12 of the Credit Agreement, each Subsidiary
of the Parent that was not a Subsidiary of the Parent on the date of the Credit
Agreement is required to enter into this Agreement as a Grantor upon becoming a
Subsidiary of the Parent.  Upon execution
and delivery after the date hereof by the Administrative Agent and such
Subsidiary of an instrument in the form of Annex 1, such Subsidiary
shall become a Grantor hereunder with the same force and effect as if originally
named as a Grantor herein.  The execution
and delivery of any instrument adding an additional Grantor as a party to this
Agreement shall not require the consent of any other Grantor hereunder.  The rights and obligations of each Grantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Grantor as a party to this Agreement.


 


(k)                                  Intercreditor
Agreement.  To the fullest extent
possible, the terms and provisions of the Intercreditor Agreement shall be read
together with the terms and provisions of this Agreement so that the terms and
provisions of this Agreement do not conflict with the terms and provisions of
the Intercreditor Agreement; provided, however, notwithstanding the foregoing,
in the event that any of the terms or provisions of this Agreement conflict
with any terms or provisions of the Intercreditor Agreement, the terms or
provisions of the Intercreditor Agreement shall govern and control for all
purposes.


 


(l)                                     Entire
Agreement.  THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS DEFINED IN THE CREDIT AGREEMENT,
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 HERETO.


 


Section 18.                                      Acknowledgment
and Restatement.


 


(a)                                  Acknowledgment
of Security Interests.


 


(i)                                     Each
Grantor hereby acknowledges, confirms and agrees that the Administrative Agent
for the ratable benefit of the Secured Parties shall continue to have a
security interest in and lien upon the Collateral heretofore granted to the
Administrative Agent for the ratable benefit of the Secured Parties pursuant to
the Loan Documents to secure the Secured Obligations, as well as any Collateral
granted under this Agreement or under any of the other Loan Documents or
otherwise granted to or held by the Administrative Agent or any Secured Party.


 


(ii)                                  The
liens and security interests of the Administrative Agent for the benefit of the
Secured Parties in the Collateral shall be deemed to be continuously granted
and perfected from the earliest date of the granting and perfection of such
liens and security interests to the Administrative Agent for the ratable
benefit of the Secured Parties, whether under this Agreement or any of the
other Loan Documents.


 


(b)                                 Loan
Documents.  Each Grantor hereby
acknowledges, confirms and agrees that: (i) the Loan Documents have been
duly executed and delivered by such Grantor, the Borrowers 


 


16

















 


and the Guarantors and are in full force and effect as
of the date hereof and (ii) the agreements and obligations of such Grantor
contained in the Loan Documents constitute the legal, valid and binding
obligations of such Grantor enforceable against it in accordance with its terms
and such Grantor has no valid defense to the enforcement of such obligations
and (iii) the Administrative Agent on behalf of the Secured Parties is
entitled to all of the rights and remedies provided for in favor of the
Administrative Agent for the benefit of the Secured Parties in the Loan
Documents, as amended and restated by this Agreement.


 


(c)                                  Restatement.  The amendment and restatement contained
herein shall not, in any manner, be construed to constitute payment of, or
impair, limit, cancel or extinguish, or constitute a novation in respect of,
the indebtedness and other obligations and liabilities of any Grantor evidenced
by or arising under the Loan Documents, and the liens and security interests in
the Collateral (as such term is defined herein) of the Administrative Agent for
the ratable benefit of the Secured Parties securing such indebtedness and other
obligations and liabilities, which shall not in any manner be impaired,
limited, terminated, waived or released, but shall continue in full force and
effect in favor of Administrative Agent for the ratable benefit of Secured
Parties.


 


[Signature Pages Follow]


 


17

















 


The parties hereto have caused this Security Agreement to be duly
executed as of the date first above written.


 


	
   

  	
  GRANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Executive Vice President and Chief 

  Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Executive Vice President and Chief 

  Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ONLINE CHOICE INC.

  
	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
  INFOMETER.COM INC.

  
	
   

  	
  MXENERGY CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY CAPITAL CORP.

  
	
   

  	
  MXENERGY GAS CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL HOLDINGS 

  CORP.

  
	
   

  	
  MXENERGY GAS CAPITAL CORP.

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL CORP.

  
	
   

  	
  TOTAL GAS & ELECTRIC INC.

  
	
   

  	
  TOTAL GAS & ELECTRICITY (PA) INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Vice President

  



 


Signature Page
to First Amended and Restated Security Agreement


 

















 


	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ GÉNÉRALE, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


Signature Page to First Amended and Restated
Security Agreement


 

















 


SCHEDULE 1


to Security Agreement


 


	
  Grantor:

  	
   

  	
  [GRANTOR]

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of Formation / Filing:

  	
   

  	
  [STATE]

  
	
   

  	
   

  	
   

  
	
  Type of Organization:

  	
   

  	
  [ENTITY TYPE]

  
	
   

  	
   

  	
   

  
	
  Address where records for 

  	
   

  	
   

  
	
  Collateral are kept:

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
   

  
	
  Organizational Number:

  	
   

  	
                                                

  
	
   

  	
   

  	
   

  
	
  Federal Tax Identification Number:

  	
   

  	
                                                

  
	
   

  	
   

  	
   

  
	
  Trade Names:

  	
   

  	
                                                

  
	
   

  	
   

  	
   

  
	
  Prior Names:

  	
   

  	
                                                

  



 


[Information should be provided for each
Grantor]


 


Schedule 1 to First Amended and Restated Security Agreement


 

















 


Annex 1 to the


First Amended and Restated Security Agreement


 


SUPPLEMENT NO. 
[            ]  dated as of
[               ]
(the “Supplement”), to the First Amended and Restated Security Agreement
dated as of August 1, 2006 (as amended, supplemented or otherwise modified
from time to time, the “Security Agreement”), among MxEnergy Inc., a
Delaware corporation, MxEnergy Electric Inc., a Delaware corporation (each
individually, a “Borrower” and collectively, the “Borrowers”),
MxEnergy Holdings Inc. (the “Parent”) and certain Subsidiaries thereof
(together with the Parent, each individually, a “Guarantor” and
collectively, the “Guarantors”, and together with the Parent and the
Borrowers, each individually a “Grantor” and collectively, the “Grantors”)
and Société Générale, as Administrative Agent (the “Administrative Agent”)
for the ratable benefit of itself and the other Secured Parties (as defined in
the Credit Agreement described below).


 


A.                                   Reference
is made to that certain First Amended and Restated Credit Agreement dated as of
August 1, 2006 (as it may be amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among the
Borrowers, the Guarantors, the lenders from time to time party thereto
(individually, a “Lender” and collectively, the “Lenders”), and
Administrative Agent.


 


B.                                     Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Security Agreement and the Credit Agreement.


 


C.                                     The
Grantors have entered into the Security Agreement in order to induce the
Lenders to make Revolving Advances, the Swing Line Lender to make Swing Line
Advances, and the Issuing Bank to issue Letters of Credit.  Pursuant to Section 5.12 of the Credit
Agreement, each Subsidiary of the Parent that was not a Subsidiary of the
Parent on the date of the Credit Agreement is required to enter into the
Security Agreement as a Grantor upon becoming a Subsidiary of the Parent.  Section 17(j) of the Security
Agreement provides that additional Subsidiaries of the Parent may become
Grantors under the Security Agreement by execution and delivery of an
instrument in the form of this Supplement. 
The undersigned Subsidiary of the Parent (the “New Grantor”) is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Grantor under the Security Agreement in order to induce
the Lenders to make additional Revolving Advances, the Swing Line Lender to
make additional Swing Line Advances, and the Issuing Bank to issue additional
Letters of Credit and as consideration for Revolving Advances and Swing Line
Advances previously made and Letters of Credit previously issued.


 


Accordingly, the Administrative Agent and the New Grantor hereby agree
as follows:


 


SECTION 1.                                In
accordance with Section 17(j) of the Security Agreement, the New
Grantor by its signature below becomes a Grantor under the Security Agreement
with the same force and effect as if originally named therein as a Grantor and
the New Grantor hereby agrees (a) to all the terms and provisions of the
Security Agreement applicable to it as a Grantor thereunder and (b) represents
and warrants that the representations and warranties made by it as a Grantor
thereunder are true and correct on and as of the date hereof in all material
respects.  In furtherance of the
foregoing, the New Grantor, as security for the payment and performance in 


 

















 


full of the
Secured Obligations (as defined in the Security Agreement), does hereby create
and grant to the Administrative Agent, its successors and assigns, for the
benefit of the Secured Parties, their successors and assigns, a continuing
security interest in and lien on all of the New Grantor’s right, title and
interest in and to the Collateral (as defined in the Security Agreement) of the
New Grantor.  Each reference to a “Grantor”
in the Security Agreement shall be deemed to include the New Grantor.  The Security Agreement is hereby incorporated
herein by reference.


 


SECTION 2.                                The
New Grantor represents and warrants to the Administrative Agent and the other
Secured Parties that this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors’ rights generally and subject, as to enforceability, to equitable
principles of general application (regardless of whether enforcement is sought
in a proceeding in equity or at law)).


 


SECTION 3.                                This
Supplement may be executed in counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract.  This Supplement shall become
effective when the Administrative Agent shall have received counterparts of
this Supplement that, when taken together, bear the signatures of the New
Grantor and the Administrative Agent. 
Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.


 


SECTION 4.                                The
New Grantor hereby represents and warrants that set forth on Schedule 1
attached hereto are (a) its sole jurisdiction of formation and type of
organization, (b) the location of all records concerning its Accounts,
General Intangibles, or any other Collateral, (c) its federal tax
identification number and the organizational number, and (d) all names
used by it during the last five years prior to the date of this Supplement.


 


SECTION 5.                                Except
as expressly supplemented hereby, the Security Agreement shall remain in full
force and effect.


 


SECTION 6.                                THIS
SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK.


 


SECTION 7.                                In
case any one or more of the provisions contained in this Supplement should be
held invalid, illegal or unenforceable in any respect, neither party hereto
shall be required to comply with such provision for so long as such provision
is held to be invalid, illegal or unenforceable, but the validity, legality and
enforceability of the remaining provisions contained herein and in the Security
Agreement shall not in any way be affected or impaired.  The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.


 

















 


SECTION 8.                                All
communications and notices hereunder shall be in writing and given as provided
in the Security Agreement.  All
communications and notices hereunder to the New Grantor shall be given to it at
the address set forth under its signature hereto.


 


SECTION 9.                                The
New Grantor agrees to reimburse the Administrative Agent for its reasonable
out-of-pocket expenses in connection with this Supplement, including the
reasonable fees, other charges and disbursements of counsel for the
Administrative Agent.


 


THIS SUPPLEMENT, THE SECURITY
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS DEFINED IN THE CREDIT AGREEMENT,
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 HERETO.


 


IN WITNESS WHEREOF, the New Grantor and the Administrative Agent have
duly executed this Supplement to the Security Agreement as of the day and year
first above written.


 


	
   

  	
  [Name of New Grantor],

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:                                                                                        

  
	
   

  	
                                                                                                        

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ GÉNÉRALE,
  as Administrative 

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 

















 


Schedule 1


Supplement No.         


to the Security Agreement


 


	
  New Grantor:

  	
   

  	
  [GRANTOR]

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of Formation / Filing:

  	
   

  	
  [STATE]

  
	
   

  	
   

  	
   

  
	
  Type of Organization:

  	
   

  	
  [ENTITY TYPE]

  
	
   

  	
   

  	
   

  
	
  Address where records for 

  	
   

  	
   

  
	
  Collateral are kept:

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
   

  
	
  Organizational Number:

  	
   

  	
                                                    

  
	
   

  	
   

  	
   

  
	
  Federal Tax Identification Number:

  	
   

  	
                                                    

  
	
   

  	
   

  	
   

  
	
  Trade Names:

  	
   

  	
                                                    

  
	
   

  	
   

  	
   

  
	
  Prior Names:

  	
   

  	
                                                    

  



 
















 


EXHIBIT J


 


	
  

  	
  SOCIÉTÉ GÉNÉRALE

  	
  Application for Irrevocable
  Standby Letter of Credit

  
	
  o

  	
  Société
  Générale

  	
  o

  	
  Société
  Générale

  	
   

  	
   

  
	
   

  	
  1221 Avenue of the
  Americas

  	
   

  	
   

  	
   

  	
  Credit Number

  
	
   

  	
  New York, NY 10020

  	
   

  	
  Address

  	
   

  	
  of Société Générale

  	
  of Advising Bank

  
	
   

  	
   

  	
   

  	
   

  
	
  Advising Bank

  	
   

  	
   

  	
  Applicant(s)/Account
  Party

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Beneficiary

  	
   

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Expiry Date

  	
  Place of expiration

  
								



 


Subject to the following
terms and conditions, please issue and transmit by the method indicated
hereinbelow your Irrevocable Letter of Credit (hereinafter called the “Credit”)
to be available by the beneficiary’s draft(s):


 


	
  Drawn at sight on

  	
  o

  	
   

  	
  Société Générale New York Branch

  
	
   

  	
  o

  	
   

  	
  Société Générale

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Address

  	
   

  
	
   

  	
  o

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Overseas bank if
  “Credit” in foreign currency or if payable outside U.S.A.)

  
	
   

  	
   

  	
   

  
	
  To be accompanied by a
  signed written statement of the beneficiary, to the effect that the amount of
  any draft(s) drawn hereunder represents funds due and payable because of
  the following reason:

   

  
	
  o

  	
  The applicant of the
  Credit has been awarded the successful bid under an offer to bid 

  
	
   

  	
   

  
	
   

  	
  Describe

  
	
   

  	
  and has failed to
  become a party to the contract related thereto.

  
	
  o

  	
  The applicant of the
  Credit has failed to comply with the terms and conditions of a contract
  described as

  
	
   

  	
   

  
	
  o

  	
  It has become necessary
  for the beneficiary bank or other financial or commercial entity to pay under
  its undertaking on behalf 

  
	
   

  	
  of the applicant of the
  credit in favor of

  	
   

  
	
   

  	
  in relation to

  	
   

  
	
  o

  	
   

  
	
   

  	
  Reason other than the
  above

  
	
   

  	
   

  
	
   

  	
   

  
	
  x

  	
  Terms continued on
  attachment(s)

  	
   

  	
  SEE EXHIBIT “A”
  ATTACHED HERETO

  
	
   

  	
   

  
	
   

  	
  o

  	
  airmail

  
	
  Transmit this Credit
  via

  	
   

  	
   

  
	
   

  	
  o

  	
  cable

  
												



 


It is understood that if
the Credit is issued in favor of any bank or other financial or commercial
entity which has issued or is to issue an undertaking on behalf of the applicant
of the Credit in connection with the Credit, the applicant hereby agrees to
remain liable under this Application and Agreement in respect of the Credit
(even after its stated expiry date) until you are released by such bank or
entity.


 


The undersigned has
executed and delivered to you the Continuing Agreement for Letters of Credit
and hereby requests that you open your Credit pursuant to that Agreement, as
specified above.


 


	
  SHIPPING DOCUMENTS FOR
  CUSTOM HOUSE ENTRY ARE TO BE SENT BY YOU TO

  	
   

  
	
   

  	
   

  	
  (Name)

  
	
   

  
	
  (Address)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Applicant

  
	
   

  	
   

  	
   

  	
   

  
	
  (Place and Date)

  	
   

  	
  19

  	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Authorized
  Signature ·
  title

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
    *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Applicant

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  19

  	
   

  	
   

  	
  By

  	
   

  
	
  (Place and Date)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Authorized
  Signature ·
  title

  
									



 






* If a Bank or Trust
Company is Applicant its customers may sign here.


 

















 


“EXHIBIT A”


 


LETTER OF
CREDIT AVAILABLE PER THE FOLLOWING:


 


1.               BENEFICIARY’S STATEMENT SIGNED
BY A PURPORTEDLY AUTHORIZED REPRESENTATIVE STATING:  “WE HEREBY CERTIFY THAT THE AMOUNT OF
USD                  
IS DUE US IN CONNECTION WITH THE ATTACHED INVOICE(S) PER PAYMENT
TERMS.  WE HAVE DELIVERED THE PRODUCT (“PRODUCT”)
COVERED BY THE ATTACHED INVOICE(S) TO [MXENERGY, INC.][MXENERGY ELECTRIC
INC.](“MX”), AND MX HAS FAILED TO MAKE PAYMENT TO US FOR THE PRODUCT WHEN DUE;
AND THAT FUNDS DRAWN UNDER THIS LETTER OF CREDIT WILL BE UTILIZED AS PAYMENT
FOR THE ACCOMPANYING INVOICE(S).”


 


2.               COPY(IES) OF SIGNED COMMERCIAL
INVOICE(S) MARKED UNPAID COVERING [INSERT QUANTITY] OF NATURAL GAS
DELIVERED DURING THE MONTH OF [INSERT MONTH, YEAR].


 


SPECIAL
CONDITIONS:


 


A.           PARTIAL DRAWINGS ARE PERMITTED.


B.             INVOICE(S) MAY BE
PRESENTED IN EXCESS OF THE VALUE OF THE LETTER OF CREDIT; HOWEVER, PAYMENT
SHALL NOT EXCEED THE MAXIMUM VALUE OF THIS LETTER OF CREDIT.


C.             THE AMOUNT AVAILABLE FOR DRAWING
UNDER THIS LETTER OF CREDIT WILL BE AUTOMATICALLY REDUCED BY THE AMOUNT OF ANY
PAYMENT(S) MADE OUTSIDE THIS LETTER OF CREDIT THROUGH [NAME OF BANK] TO
THE BENEFICIARY WHICH MAKE REFERENCE TO THIS LETTER OF CREDIT.


D.            ALL BANKING CHARGES OTHER THAN
THOSE OF ISSUING BANK ARE FOR THE ACCOUNT OF THE BENEFICIARY.


E.              EXCEPT AS OTHERWISE EXPRESSLY
STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO AND GOVERNED BY THE
INTERNATIONAL STANDBY PRACTICES (1998), INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NO. 590 (“ISP98”).  AS
TO MATTERS NOT COVERED BY ISP98, THIS LETTER OF CREDIT SHALL BE SUBJECT AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


INSTRUCTIONS TO
BANK:


 


	
  PLEASE FAX A
  COPY TO

  	
   

  	
  MXEnergy
  Inc./MXEnergy Electric Inc.

  
	
   

  	
   

  	
  Attn:

  	
   

  
	
   

  	
   

  	
  (XXX)
  XXX-XXXX

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Beneficiary

  
	
   

  	
   

  	
  Attn:

  	
   

  
	
   

  	
   

  	
  (XXX)
  XXX-XXXX

  
	
   

  	
   

  	
   

  
	
  SEND BY
  OVERNIGHT COURIER:

  	
   

  	
  Beneficiary

  
	
   

  	
   

  	
  Attn:

  	
   

  
	
   

  	
   

  	
  [Address]

  
	
   

  	
   

  	
  [City, State,
  Zip]

  



 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
  Responsible
  Officer

  
	
   

  	
  MXEnergy, Inc.

  
				



 

















 


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:

  



 


1

















 


EXHIBIT A


 


To Risk
Management Policy Certification


 


MONTHLY RISK
MANAGEMENT REPORT


 


See attached.


 


2
















 


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 

  	
   

  	
  8725 John Kingman Road

  Fort Belvoir, VA 22060-6222

  	
   

  	
  $

  	
  5,200,000

  
	
  *This is a US
  government contract.

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UBS AG

  	
   

  	
  677 Washington Blvd. 

  Stamford, CT 60901

  	
   

  	
  $

  	
  4,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New York Organic
  Fertilizer Co.

  	
   

  	
  1108 Pak Point Avenue

  Bronx, NY 10474

  	
   

  	
  $

  	
  1,500,000

  
	
  *Parent company is Synagro

  	
   

  	
   

  	
   

  	
   

  
	
  (Nasdaq – SYGR)

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UCMT U.S. Postal Service 

  	
   

  	
  Deborah Wilcox-Loos,

  CEP, C.P.M.

  Utilities Team Lead

  United States Postal Service

  8 Griffin Road North

  	
   

  	
  $

  	
  1,500,000

  
	
  *This is a US government contract

  	
   

  	
  Windsor, CT 06095-1572

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  State of Georgia 

  	
   

  	
  1180 E. Broad St.

  Chicopee Bldg Athens, 

  GA 30602

  	
   

  	
  $

  	
  1,500,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SUNY Brooklyn 

  	
   

  	
  450 Clarkson Avenue

  PO Box 13

  	
   

  	
  $

  	
  1,000,000

  
	
  *Contract is with the State of New York.

  	
   

  	
  Brooklyn, NY 11203

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SUNY Stony Brook 

  	
   

  	
  SUNY at Stony Brook
  Service Building

  	
   

  	
  $

  	
  1,000,000

  
	
  *Contract is with the State of New York.

  	
   

  	
  Stony Brook, NY 11794

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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)


 


2

















 


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


 


	
  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, 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.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Form of Service
  Agreement for Small Volume Aggregation Service Rate Schedule between Columbia
  Gas of Kentucky, Inc. and MXenergy Inc. dated April 1, 2005.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Accounts Receivable
  Purchase Agreement between Columbia Gas of Kentucky, Inc. and MXenergy
  Inc. dated November 1, 2005.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Billing Agent Agreement
  between Baltimore Gas and Electric Company and MXenergy Inc., dated as of
  October 26, 1999.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Service Agreement between
  The East Ohio Gas Company d/b/a Dominion East Ohio and MXenergy Inc., dated
  as of December 22, 2003.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Billing Agreement (Option
  2) between The East Ohio Gas Company d/b/a Dominion East Ohio and MXenergy
  Inc. dated December 22, 2003.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Customer Information
  Agreement between The East Ohio Gas Company d/b/a Dominion East Ohio and
  MXenergy Inc. dated October 06, 2004.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Accounts Receivable
  Purchase Agreement between Columbia Gas of Pennsylvania, Inc. and
  MXenergy Inc. dated October 1, 2001.

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Requirements Aggregation
  Service Agreement between Columbia Gas of Ohio, Inc. and MXenergy Inc.
  dated August 8, 2005.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Accounts Receivable
  Purchase Agreement between Columbia Gas of Ohio, Inc. and MXenergy Inc.
  dated August 8, 2005.

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  MXenergy Authorized Gas
  Supplier Agreement between Michigan Consolidated Gas Company and MXenergy
  Inc. dated April 1, 2008.

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Supplier Aggregation Service
  Agreement between Northern Indiana Public Service Company and MXenergy Inc.
  dated December 1, 2006.

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Accounts Receivable
  Purchase Agreement between Northern Indiana Public Service Company and
  MXenergy Inc. dated October 7, 2002.

  



 

















 


	
  15.

  	
   

  	
  Service Agreement Gas
  Distribution Access Rule between Union Gas and MXenergy Inc., dated as
  of January 10, 2008.

  
	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  Third Party Supplier
  Agreement between Public Service Electric and Gas Company and MXenergy Inc.
  dated April 07, 2005.

  
	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  Marketer and Broker
  Service Agreement between New Jersey Natural Gas Company and MXenergy Inc.,
  dated October 03, 2005.

  
	
   

  	
   

  	
   

  
	
  23.

  	
   

  	
  Agreement for Billing and
  Collection Services between New Jersey Natural Gas Company and MXenergy Inc.
  dated October 03, 2005.

  
	
   

  	
   

  	
   

  
	
  24.

  	
   

  	
  Services Agreement between
  South Jersey Gas Company and MXenergy Inc. dated as of July 28, 2008.

  
	
   

  	
   

  	
   

  
	
  25.

  	
   

  	
  Supplier Aggregation
  Agreement between Northern Illinois Gas Company d/b/a Nicor Gas Company and
  MXenergy Inc. dated January 24, 2002.

  
	
   

  	
   

  	
   

  
	
  26.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  27.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  28.

  	
   

  	
  Service Agreement for
  Supplier Transportation, Balancing and Aggregation, Under Service
  Classification No. 19 between National Fuel Gas and MXenergy Inc. dated
  April 1, 2005.

  
	
   

  	
   

  	
   

  
	
  29.

  	
   

  	
  Billing Services Agreement
  for Consolidated Billing Service Under Service Classification No. 19
  between National Fuel Gas and MXenergy Inc. dated November 29, 2005.

  
	
   

  	
   

  	
   

  
	
  30.

  	
   

  	
  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).

  
	
   

  	
   

  	
   

  
	
  31.

  	
   

  	
  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).

  



 


2

















 


	
  32.

  	
   

  	
  Master Power Purchase and
  Sale Agreement between DTE Energy Trading, Inc. and MXenergy Electric
  Inc. dated March 8, 2005.

  
	
   

  	
   

  	
   

  
	
  33.

  	
   

  	
  Operating Agreement
  between DTE Energy Trading, Inc. and MXenergy Electric Inc., dated as of
  March 8, 2005.

  
	
   

  	
   

  	
   

  
	
  34.

  	
   

  	
  Security Agreement dated
  March 8, 2005 between MXenergy Electric Inc. and DTE Energy
  Trading, Inc. dated March 8, 2005.

  
	
   

  	
   

  	
   

  
	
  35.

  	
   

  	
  ESCO Operating Agreement
  dated July 14, 2006 between Orange and Rockland Utilities, Inc. and
  MXenergy Electric Inc.

  
	
   

  	
   

  	
   

  
	
  36.

  	
   

  	
  Consolidated Billing and
  Assignment Agreement dated July 12, 2007 between Orange and Rockland
  Utilities, Inc. and MXenergy Electric Inc.

  
	
   

  	
   

  	
   

  
	
  37.

  	
   

  	
  Consolidated Billing and
  Assignment Agreement dated July 12, 2007 between Orange and Rockland
  Utilities, Inc. and MXenergy Inc.

  
	
   

  	
   

  	
   

  
	
  38.

  	
   

  	
  Application Form for
  Qualified Seller Service, Service Classification No. 11 between Orange
  and Rockland Utilities, Inc. and MXenergy Inc. dated April 4, 2005.

  
	
   

  	
   

  	
   

  
	
  39.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  40.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  41.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  42.

  	
   

  	
  Third Party Supplier
  Service Agreement between NUI/Elizabethtown Gas Company and MXenergy Inc.
  dated May 17, 2002.

  
	
   

  	
   

  	
   

  
	
  43.

  	
   

  	
  Competitive Electric
  Supplier Service Agreement between Massachusetts Electric Company and
  MXenergy Electric Inc. dated September 3, 2004.

  
	
   

  	
   

  	
   

  
	
  44.

  	
   

  	
  Competitive Electric
  Supplier Service Agreement between Western Massachusetts Electric Company and
  MXenergy Electric Inc. dated September 21, 2007.

  
	
   

  	
   

  	
   

  
	
  45.

  	
   

  	
  Electric Supplier Service
  Agreement between Connecticut Light and Power Company and MXenergy Electric
  Inc. dated as of September 21, 2007.

  
	
   

  	
   

  	
   

  
	
  46.

  	
   

  	
  Electric Supplier Service
  Agreement between The United Illuminating Company, a specially chartered
  Connecticut corporation and MXenergy Electric Inc. dated as of March 27,
  2007.

  
	
   

  	
   

  	
   

  
	
  47.

  	
   

  	
  Operating Agreement
  between Rochester Gas and Electric and MXenergy Inc. dated April 4,
  2005.

  
	
   

  	
   

  	
   

  
	
  48.

  	
   

  	
  Billing Services Agreement
  between Rochester Gas and Electric and MXenergy Inc. dated May 17, 2005.

  



 


3

















 


	
  49.

  	
   

  	
  Operating Agreement
  between Rochester Gas and Electric and MXenergy Electric Inc. dated
  April 1, 2005.

  
	
   

  	
   

  	
   

  
	
  50.

  	
   

  	
  Billing Services Agreement
  between Rochester Gas and Electric and MXenergy Electric Inc. dated
  April 1, 2005.

  
	
   

  	
   

  	
   

  
	
  51.

  	
   

  	
  Operating Agreement
  between New York State Electric and Gas Corporation and MXenergy Inc. dated
  March 30, 2005.

  
	
   

  	
   

  	
   

  
	
  52.

  	
   

  	
  Billing Services Agreement
  between New York State Electric and Gas Corporation and MXenergy Inc. dated
  March 30, 2005.

  
	
   

  	
   

  	
   

  
	
  53.

  	
   

  	
  Billing Services Agreement
  between New York State Electric and Gas Corporation and MXenergy Electric
  Inc. dated March 30, 2005.

  
	
   

  	
   

  	
   

  
	
  54.

  	
   

  	
  Gas Pooling Agreement
  between New York State Electric and Gas Corporation and MXenergy Inc. dated
  July 27, 2005.

  
	
   

  	
   

  	
   

  
	
  55.

  	
   

  	
  Retail Supplier Operating
  Agreement between Central Hudson Gas & Electric Corporation and
  MXenergy Inc. dated August 02, 2005.

  
	
   

  	
   

  	
   

  
	
  56.

  	
   

  	
  Billing Services Agreement
  between Central Hudson Gas & Electric Corporation and MXenergy Inc.
  dated February 2, 2006.

  
	
   

  	
   

  	
   

  
	
  57.

  	
   

  	
  Retail Supplier Operating
  Agreement between Central Hudson Gas & Electric Corporation and
  MXenergy Electric Inc. dated August 02, 2005.

  
	
   

  	
   

  	
   

  
	
  58.

  	
   

  	
  Billing Services Agreement
  between Central Hudson Gas & Electric Corporation and MXenergy
  Electric Inc. dated February 2, 2006.

  
	
   

  	
   

  	
   

  
	
  59.

  	
   

  	
  Operating Agreement
  between Consolidated Edison Company of New York, Inc. and MXenergy Electric
  Inc. dated December 07, 2005.

  
	
   

  	
   

  	
   

  
	
  60.

  	
   

  	
  Consolidated Utility
  Billing Service and Assignment Agreement between Consolidated Edison Company
  of New York, Inc. and MXenergy Inc. dated April 1, 2008.

  
	
   

  	
   

  	
   

  
	
  61.

  	
   

  	
  Consolidated Utility
  Billing Service and Assignment Agreement between Consolidated Edison Company
  of New York, Inc. and MXenergy Electric Inc. dated April 1, 2008.

  
	
   

  	
   

  	
   

  
	
  62.

  	
   

  	
  Customer Aggregation
  Agreement between Columbia Gas of Maryland, Inc. and MXenergy Inc. dated
  November 1, 1998.

  
	
   

  	
   

  	
   

  
	
  63.

  	
   

  	
  Third Party Supplier
  Service Agreement between City Gas Company of Florida and Total
  Gas & Electric dated December 16, 1998.

  
	
   

  	
   

  	
   

  
	
  64.

  	
   

  	
  Services Agreement between
  South Jersey Gas and MXenergy Inc. (Schedule 1.0) dated as of July 31,
  2008.

  
	
   

  	
   

  	
   

  
	
  65.

  	
   

  	
  Pooler Agreement between
  Atlanta Gas Light Company and MXenergy Inc. dated April 6, 2006

  
	
   

  	
   

  	
   

  
	
  66.

  	
   

  	
  Vectren Choice Supplier
  Pooling Agreement between Vectren Energy Delivery of Ohio, Inc. and
  MXenergy Inc. dated as of September 8th, 2008.

  



 


4

















 


	
  67.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  68.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  69.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  70.

  	
   

  	
  Certificate of Designation
  of Series B Convertible Preferred Stock dated as of November 17,
  2008.

  
	
   

  	
   

  	
   

  
	
  71.

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  72.

  	
   

  	
  Electronic Commerce System
  User Agreement between Pacific Gas and Electric Company and MXenergy Inc.
  dated as of June 25, 2008.

  
	
   

  	
   

  	
   

  
	
  73.

  	
   

  	
  Gas Transmission Service
  Agreement between Pacific Gas and Electric Company and MXenergy Inc. dated as
  of July 1, 2008.

  
	
   

  	
   

  	
   

  
	
  74.

  	
   

  	
  Rate Schedule 36 Services
  Agreement between Marketer (MXenergy (Canada) Ltd.) and Terasen Gas Inc.
  dated as of January 11, 2007.

  
	
   

  	
   

  	
   

  
	
  75.

  	
   

  	
  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.

  



 


5
















 


Schedule
2.01 - Commitments and Pro Rata Shares of the Lenders


 


REVOLVING COMMITMENTS AND PRO RATA SHARES OF THE REVOLVING
LENDERS


 


	
   

  	
   

  	
  Revolving

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commitment

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  On the Closing

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Pro Rata

  	
   

  
	
  Lender

  	
   

  	
  Date

  	
   

  	
  March 31, 2009

  	
   

  	
  April 30, 2009

  	
   

  	
  May 31, 2009

  	
   

  	
  June 30, 2009

  	
   

  	
  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

  	
  %

  
	
  Bank of America,
  N.A.

  	
   

  	
  $

  	
  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

  	
  %

  



 


1

















 


BRIDGE
LOANS AND PRO RATA SHARE OF THE BRIDGE LENDERS


 


	
  Lender

  	
   

  	
  Bridge Loans

  	
   

  	
  Bridge Pro Rata

  Share

  	
   

  
	
  Charter Mx LLC

  	
   

  	
  $

  	
  5,000,000.00

  	
   

  	
  48.07692

  	
  %

  
	
  Denham Commodity Partners Fund LP

  	
   

  	
  $

  	
  5,000,000.00

  	
   

  	
  48.076923

  	
  %

  
	
  Jeffrey Mayer

  	
   

  	
  $

  	
  100,000.00

  	
   

  	
  0.961538

  	
  %

  
	
  Chaitu Parikh

  	
   

  	
  $

  	
  100,000.00

  	
   

  	
  0.961538

  	
  %

  
	
  Steven Murray

  	
   

  	
  $

  	
  100,000.00

  	
   

  	
  0.961538

  	
  %

  
	
  Carole R. Artman-Hodge

  	
   

  	
  $

  	
  100,000.00

  	
   

  	
  0.961538

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  $

  	
  10,400,000.00

  	
   

  	
  100.00000

  	
  %

  



 


2

















 


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.


 


1

















 


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 - 

  	
   

  	
  000037112430

  	
   

  	
  N/A

  	
   

  	
  General Aggregate:

  	
   

  	
  $2,000,000

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  10,600

  	
   

  
	
   

  	
   

  	
  Federal Insurance 

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  	
  BI/PD Each Occurrence:

  	
   

  	
  $1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
   

  	
   

  	
  $1,000

  	
   

  	
  Employee Benefits E&O:

  	
   

  	
  $1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Property

  	
   

  	
  Chubb - 

  Federal Insurance Company

  	
   

  	
  000037112430

  	
   

  	
   

  	
   

  	
  Property

  	
   

  	
   

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  16,935

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  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 Company

  	
   

  	
  000073543598

  	
   

  	
  N/A

  	
   

  	
  Hired & Non-Owned:

  	
   

  	
  $1,000,000

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  205

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Workers
  Compensation

  	
   

  	
  Chubb - 

  Federal Insurance Company

  	
   

  	
  000078390827

  	
   

  	
  N/A

  	
   

  	
  Workers Compensation:

  	
   

  	
  Statutory

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  62,393

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Employers
  Liability:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Each Accident:

  	
   

  	
  $1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Policy Limit:

  	
   

  	
  $1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Each Employee:

  	
   

  	
  $1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Umbrella
  Liability

  	
   

  	
  Chubb - 

  Federal Insurance Company

  	
   

  	
  000079833667

  	
   

  	
  N/A

  	
   

  	
  Umbrella Liability:

  	
   

  	
  $10,000,000 Excess of 

  Primary

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  19,341

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Excess
  Liability:

  	
   

  	
  ACE Property &
  Casualty

  Insurance Company

  	
   

  	
  XCP G24650625

  	
   

  	
  N/A

  	
   

  	
  Excess Liability:

  	
   

  	
  $15,000,000 Excess of

  Underlying

  	
   

  	
  9/20/08

  	
   

  	
  9/20/09

  	
   

  	
  $

  	
  25,000

  	
   

  



 


















 


 


	
  Line of Coverage

  	
   

  	
  Carrier

  	
   

  	
  Policy No.

  	
   

  	
  Retention/Deductibles

  	
   

  	
  Limits

  	
   

  	
  Attach

  	
   

  	
  Expire

  	
   

  	
  Current

  Premium

  	
   

  
	
  FINPRO
  (Financial & Professional)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Directors &
  Officers Liability (“D&O”)/ Employment 

  	
   

  	
  U.S. Specialty

  Insurance Co. (“HCC”)

  	
   

  	
  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

  	
   

  
	
  Practices
  Liability (“EPL”)/

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  D&O/EPL Claim $0 

  	
   

  	
  Aggregate Limit of Liability for EPL:

  	
   

  	
  $4,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fiduciary
  Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  per Fiduciary

  Liability Claim

  	
   

  	
  Aggregate Limit of Liability for Fiduciary:

  (including Defense Costs)

  	
   

  	
  $2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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:

  (including Defense Costs)

  	
   

  	
  $15,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commercial
  Crime

  	
   

  	
  Hartford Fire Insurance

  Company (“The

  Hartford”)

  	
   

  	
  00FA025127008

  	
   

  	
  $50,000 $(1,000 for
  Credit Card Forgery and Personal Accounts of Officers.

  No deductible for 

  Money & Orders &

  Counterfeit Currency

  or ERISA Compliance)

  	
   

  	
  Employee Theft:

  Depositors Forgery & Alteration:

  	
   

  	
  $5,000,000

  $5,000,000

  	
   

  	
  7/1/08

  	
   

  	
  11/8/09

  	
   

  	
  $

  	
  13,249

  (prepaid)

  	
   

  
	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Theft, Disappearance & Destruction:

  	
   

  	
  $5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Computer & Funds Transfer Fraud:

  	
   

  	
  $5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Money Orders & Counterfeit Currency:

  	
   

  	
  $5,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  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:

  	
   

  	
   

  
	
  595 Summer Street

  	
   

  	
   

  
	
  Suite 300

  	
   

  	
   

  
	
  Stamford, CT 06901

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New
  Jersey Office:

  	
   

  	
   

  
	
  510 Thornall Street

  	
   

  	
   

  
	
  Suite 270

  	
   

  	
   

  
	
  Edison, NJ 08837

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Ohio
  Office:

  	
   

  	
   

  
	
  12991 Clifton Blvd.

  	
   

  	
   

  
	
  Lakewood, OH 44107

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Georgia
  Office:

  	
   

  	
   

  
	
  2987 Clairmont Road,
  Suite 500

  	
   

  	
   

  
	
  Atlanta, GA 30329

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Maryland
  Office:

  	
   

  	
   

  
	
  10010 Junction Drive

  	
   

  	
   

  
	
  Suite 104-S

  	
   

  	
   

  
	
  Annapolis Junction, MD
  20701

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Texas
  Office:

  	
   

  	
   

  
	
  711 Louisiana Street

  	
   

  	
   

  
	
  Suite 1000

  	
   

  	
   

  
	
  Houston, TX 77002

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Michigan
  Office:

  	
   

  	
   

  
	
  39555 Orchard Hill Place,
  Suite 600

  	
   

  	
   

  
	
  Novi, MI 48375

  	
   

  	
   

  



 


Inventory Locations
of Borrowers and their Subsidiaries:


 


	
  Baltimore Gas & Electric

  	
   

  	
   

  
	
  39 West Lexington Street

  	
   

  	
   

  
	
  Baltimore, MD 21203

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dominion East Ohio

  	
   

  	
   

  
	
  625 Liberty Avenue

  	
   

  	
   

  
	
  Pittsburgh, PA 15222

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  TCO (Columbia Gas
  Transmission Co.)

  	
   

  	
   

  
	
  12801 Fair Lakes Parkway

  	
   

  	
   

  
	
  Fairfax, VA 22030

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DTI (Dominion
  Transmission)

  	
   

  	
   

  
	
  120 Tredegar Street

  	
   

  	
   

  
	
  Richmond, VA 23251

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BP Canada Energy Company

  	
   

  	
   

  
	
  PO Box 200

  	
   

  	
   

  
	
  Calgary, AB T2P 2H8

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Panhandle Eastern Pipe
  Line

  	
   

  	
   

  
	
  5440 Westheimer Road

  	
   

  	
   

  
	
  Houston, TX 77056-5306

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Petal Gas Storage, L.L.C.

  	
   

  	
   

  
	
  1100 Louisiana,
  Suite 14.184

  	
   

  	
   

  
	
  Houston, TX 77002

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  National Fuel Gas

  	
   

  	
   

  
	
  6363 Main Street

  	
   

  	
   

  
	
  Williamsville, NY 14221

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Nicor, Inc.

  	
   

  	
   

  
	
  1844 W. Ferry Road

  	
   

  	
   

  
	
  Naperville, IL 60563

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Northern Indiana Public
  Service Co.

  	
   

  	
   

  
	
  801 E. 86th
  Avenue

  	
   

  	
   

  
	
  Merrillville, IN 46410

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Southern Natural Gas
  Company

  	
   

  	
   

  
	
  1900 5th Avenue
  North

  	
   

  	
   

  
	
  Birmingham, AL 35203

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Transcontinental Gas
  Pipeline

  	
   

  	
   

  
	
  2800 Post Oak Boulevard

  	
   

  	
   

  
	
  Houston, TX 77056

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Atlanta Gas Light

  	
   

  	
   

  
	
  P. O. Box 4569

  	
   

  	
   

  
	
  Atlanta, GA 30302-4569

  	
   

  	
   

  



 

















 


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

  	
   

  



 


2

















 


	
  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

  



 


3

















 


4       Outstanding Loans


 


	
  $12 million outstanding
  under the Denham credit facility as of Closing Date.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


4

















 


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


 


2

















 


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


 


3

















 


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

  



 


BANK OF AMERICA, N.A.


 


	
  Credit Contact

  	
   

  	
  Administrative Contact

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David Maiorella

  	
   

  	
  Debbie Hollins

  
	
  Title:

  	
  Senior Vice President

  	
   

  	
  Portfolio Management
  Administrator

  
	
  Address:

  	
  AZ1-200-19-11

  	
   

  	
  AZ1-200-19-11

  
	
   

  	
  201 E Washington St., 19th
  Floor 

  	
   

  	
  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

  



 


2

















 


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

  	
   

  	
   

  



 


3

















 


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

  



 


4