Exhibit 10.1


 


EIGHTH AMENDMENT & WAIVER


 


This
Eighth Amendment & Waiver (this “Amendment”) dated as of August 31,
2009 (the “Eighth Amendment Effective Date”) is by and among MxEnergy
Inc., a Delaware corporation (“MxEnergy”), MxEnergy Electric Inc., a Delaware
corporation (“MxEnergy Electric”, MxEnergy and MxEnergy Electric each a “Borrower”
and collectively, the “Borrowers”), MxEnergy Holdings Inc. and certain
Subsidiaries thereof (collectively, the “Guarantors”), the financial
institutions and other Persons whose signatures appear below as Lenders,
Société Générale, as Issuing Bank, and Société Générale, as Administrative
Agent.


 


PRELIMINARY STATEMENTS


 


A.                                   Reference is
made to the Third Amended and Restated Credit Agreement dated as of November 17,
2008 among the Borrowers, the Guarantors, the lenders party thereto and the
Administrative Agent, as amended by the First Amendment dated as of March 11,
2009, the Second Amendment & Waiver dated as of May 15, 2009, the
Third Amendment & Waiver dated as of May 29, 2009, the Fourth
Amendment & Waiver dated as of June 8, 2009, the Fifth Amendment
dated as of June 15, 2009, the Sixth Amendment, Waiver & Consent
dated as of July 31, 2009, and the Seventh Amendment & Waiver
dated as of August 14, 2009 (as amended through the date hereof, the “Credit
Agreement”).  Unless otherwise
expressly provided herein, capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Credit Agreement.


 


B.                                     Section 2.14(e) of
the Credit Agreement provides that if any Letters of Credit are outstanding or
drawn and not reimbursed on August 28, 2009, the Borrowers shall on or
before such date either pay to the Administrative Agent an amount equal to 105%
of the Letter of Credit Exposure allocable to such Letters of Credit, provide
the Issuing Bank with a substitute letter of credit naming the Issuing Bank as
beneficiary with a face amount equal to 105% of the aggregate Letter of Credit
Exposure allocable to such outstanding Letters of Credit, or provide the
Administrative Agent with some combination of the foregoing (collectively, the “Cash
Collateralization Requirement”).  As
of the date hereof, the Borrowers have failed to comply with the Cash
Collateralization Requirement (other than the compliance in part with the Cash
Collateralization Requirement resulting from the Borrowers’ compliance with Section 5.18
of the Credit Agreement as of the date hereof), and as a result, an Event of
Default has occurred and is continuing under Section 7.01(c) of the
Credit Agreement (the “Cash Collateral Default”).


 


C.                                     Section 7.01(m) of
the Credit Agreement provides that it is an Event of Default if on or prior to August 28,
2009, holders of at least 90% of the outstanding principal amount of the Senior
Notes (excluding Senior Notes owned by the Parent) shall not have validly
tendered and not withdrawn their Senior Notes in the Senior Notes Exchange
Offer (the “August 28 Milestone Requirement”).  As of the date hereof, a purported Event of
Default may have occurred and be continuing due to the failure of the August 28
Milestone Requirement to be satisfied (if any, the “August 28 Default”,
and together with the Cash Collateral Default, the “Eighth Amendment
Defaults”).


 

















 


D.                                    The Borrowers have requested that the Lenders,
the Issuing Bank and the Administrative Agent amend the Credit Agreement
as set forth in this Amendment and waive the Eighth Amendment Defaults to the
extent provided herein.


 


E.                                      The Lenders
party hereto, constituting all
of the Lenders under the Credit Agreement, the Issuing Bank and the
Administrative Agent are willing to amend the Credit Agreement and waive the
Eighth Amendment Defaults, each on the terms and conditions set forth herein.


 


NOW
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the parties hereto agree as follows:


 


AGREEMENT


 


Section 1.                                            Amendments to Credit Agreement.


 


(a)                                  Amendments to Section 1.01.


 


(i)                                     The following new definitions are hereby
added in the appropriate alphabetical order to read as follows:


 


“Collateral
LOC” has the meaning given to such term in the Eighth Amendment.


 


“Eighth
Amendment” means the Eighth Amendment & Waiver, dated as of August 31,
2009, to the Agreement, by and among the Borrowers, the Parent, the Guarantors,
the Lenders, the Issuing Bank and the Administrative Agent.


 


“Eighth
Amendment Effective Date” means the date upon which the Eighth Amendment
becomes effective in accordance with its terms.


 


“FERC
Approval” means an order or other written approval from the Federal Energy
Regulatory Commission (“FERC”) of the application filed by MxEnergy
Electric with FERC (Docket No. EC09-105-000) on August 20, 2009.


 


“Payoff
Letter” has the meaning given to such term in the Eighth Amendment.


 


“RBS”
means The Royal Bank of Scotland plc.


 


(ii)                                  Each of the following definitions is
hereby amended in its entirety to read as follows:


 


“Commercial
Term Sheet” means the term sheet dated August 7, 2009 evidencing the
proposed commodity supply arrangements among the Refinance Party, the Parent
and the Borrowers.


 


“Exchange Offering
Memo” means the MxEnergy Holdings Inc. Amended and Restated Confidential
Offering Memorandum and Consent Solicitation Statement dated August 14,
2009.


 

















 


“Maturity Date” means September 21,
2009.


 


“Refinance Party”
means Sempra Energy Trading LLC.


 


“Refinance
Transaction” means the proposed transaction between the Refinance Party and
the Borrowers that is described in the Term Sheets and that would provide for
the refinancing in full of the Obligations and delivery to the Issuing Bank of
a back-to-back letter of credit in favor of the Issuing Bank on or before the
Maturity Date.


 


“Trigger
Event” means:


 


(a)                                  on or prior to September 4,
2009 (x) the Administrative Agent has not received written confirmation
(which written confirmation may be sent via electronic mail) from the Refinance
Party, confirming that (i) it has negotiated and agreed to the final form
of the Collateral LOC with the Issuing Bank, and it will cause RBS to deliver
the Collateral LOC to the Issuing Bank on or before the closing date of the
Refinance Transaction (and such written confirmation shall attach the form of
Collateral LOC thereto), (ii) it has negotiated and agreed to the final
form of Payoff Letter with the Administrative Agent and will accept such Payoff
Letter from the Administrative Agent and the Borrowers in connection with the
closing of the Refinance Transaction, without requiring any other terms,
conditions or documentation from the Administrative Agent or the Lenders concerning
the matters contained therein (except as expressly provided therein) (and such
written confirmation shall attach the form of Payoff Letter thereto), and (iii) it
actively continues to negotiate definitive documentation in good faith with the
Parent and the Borrowers on the Refinance Transaction and that the Refinance
Party’s due diligence investigation of the Borrowers’ business has not
identified any materially adverse matters in the judgment of the Refinance
Party; (y) the final form of Collateral LOC is not in form and substance
satisfactory to the Issuing Bank in its sole discretion; or (z) the final
form of Payoff Letter is not in form and substance satisfactory to the
Administrative Agent in its sole discretion;


 


(b)                                 on or prior to September 8,
2009, the Borrowers fail to deliver to the Administrative Agent evidence
satisfactory to the Administrative Agent and the Majority Lenders that the FERC
Approval has been obtained;


 


(c)                                  on or prior to September 20,
2009, holders of at least 95% (or, if the applicable condition precedent in the
Exchange Offering Memo is waived by a sufficient number of holders of the
Senior Notes pursuant to evidence satisfactory to the Administrative Agent and
the Majority Lenders in their sole discretion, 90%) of the outstanding
principal amount of the Senior Notes (excluding Senior Notes owned by the
Parent) shall not have validly tendered and not withdrawn their Senior Notes in
the Senior Notes Exchange Offer, as modified pursuant to an amendment to the
Exchange Offering Memo in accordance with clause (ii)(x) of paragraph (d) below;


 


(d)                                 the Senior
Notes Exchange Offer or the Exchange Offering Memo (i) expires or is
terminated without holders of a sufficient amount of the Senior Notes to make
the Senior Notes Exchange Offer effective having validly tendered and not
withdrawn their Senior Notes in the Senior Notes Exchange Offer, or (ii) is
amended or otherwise modified in any


 

















 


manner
(unless amended or otherwise modified solely to (x) reflect the final
terms agreed to (pursuant to evidence satisfactory to the Administrative Agent
and the Majority Lenders in their sole discretion) by the Parent, the Refinance
Party and the holders of the Senior Notes, and such amendment or other
modification is in form and substance reasonably satisfactory to the
Administrative Agent and the Majority Lenders, or (y) extend the
expiration date of the Senior Notes Exchange Offer such that it is consummated
and settled simultaneously with the closing of the Refinance Transaction); or


 


(e)                                  the Parent or a
Borrower receives a notice of or becomes aware of a termination or abandonment
by the Refinance Party of the Refinance Transaction, or a significant change in
structure that could reasonably be expected to delay the closing thereof to
after the Maturity Date, or the Parent, a Borrower or any of their respective
Subsidiaries takes any action to terminate or abandon the Refinance
Transaction, or fails to take any action which failure has the effect of
terminating or abandoning the Refinance Transaction.


 


(b)                                 Amendments to Section 2.14.


 


(i)                                     Section 2.14(a) is hereby
amended by (x) replacing the first sentence thereof with the following:


 


Subject to the terms of this Agreement, from
time-to-time from the Closing Date until 5 Business Days prior to Maturity
Date, at the request of a Borrower, the Issuing Bank shall, on the terms and
conditions hereinafter set forth, issue, increase, amend, renew 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.


 


and
(y) replacing the references therein to “issue, increase or extend”, “issued,
increased or extended”, and “issuance, increase or extension” to “issue,
increase, amend, renew or extend,” “issued, increased, amended, renewed or
extended”, and “issuance, increase, amendment, renewal or extension”,
respectively.


 


(ii)                                  Section 2.14(a)(ii) is hereby amended
in its entirety as follows:


 


(ii) unless such Letter of Credit has an
expiration date not later than the earliest of (A) one year after the date
of issuance thereof, (B) except as provided in clause (C), November 30,
2009, and (C) with respect to Letters of Credit (other than Letters of
Credit issued, increased, amended, renewed or extended on or after the Eighth
Amendment Effective Date) in an aggregate outstanding face amount of up to
$40,000,000 only, January 31, 2010; 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 January 31, 2010) 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)                               The proviso to Section 2.14(e) is
hereby deleted.


 

















 


(c)                                  Amendment to Section 6.17.  
Clause (a)(i) of Section 6.17 is hereby amended in its
entirety as follows:


 


(a)(i) $25,000,000.00 during October,
November, and December 2008 and January, June, July, August and September 2009
and


 


(d)                                 Amendment to Section 6.27.  Section 6.27
is hereby amended in its entirety as follows:


 


Section 6.27.                             Natural Gas Inventory.  Permit the aggregate amount of natural gas
inventory for the Loan Parties to exceed: (a) 4.2 Bcf on any day in the
month of May 2009, (b) 5.1 Bcf on any day in the month of June 2009,
(c) 5.6 Bcf on any day in the month of July 2009, (d) 6.1 Bcf on
any day in the month of August 2009, or (e) 6.6 Bcf on any day in the
month of September 2009.


 


(e)                                  Amendment to Section 7.01. 
Clause (i) of Section 7.01(c) is hereby amended in its
entirety as follows:


 


(i) fail to perform or observe any
covenant contained in Section 2.14(e), 5.01, 5.07(a),
5.09, 5.11, 5.12, 5.17, Article VI or Section 2
of the Eighth Amendment, or


 


Section 2.                                            Other Agreements.


 


(a)                                  On or prior to the Maturity Date, the
Borrowers shall deliver or cause to be delivered to the Issuing Bank a duly
executed back-to-back letter of credit from RBS in the form attached hereto as Exhibit A,
together with such changes as may be agreed between RBS and the Issuing Bank
(the “Collateral LOC”), notwithstanding any different prior direction by
the Administrative Agent or the Majority Lenders pursuant to Section 2.14(e) of
the Credit Agreement, and not in duplication thereof (if the operation of
clause (ii) of such Section is sufficient to comply with this Section 2(a)).


 


(b)                                 The Borrowers hereby agree to execute and
deliver a payoff letter in the form attached hereto as Exhibit B,
together with such changes as may be agreed between the Refinance Party and the
Administrative Agent (the “Payoff Letter”) upon the closing of the
Refinance Transaction and the Loan Parties shall not require any other terms,
conditions or documentation from the Administrative Agent or the Lenders
concerning the matters contained therein (except as expressly provided
therein).


 


(c)                                  The Borrowers hereby agree to participate
in weekly conference calls (on each Wednesday or such other date as may be
mutually agreed between the parties) with the Administrative Agent, and to use
their commercially reasonable efforts to cause the Refinance Party to
participate in each such conference call, from and after the Eighth Amendment
Effective Date until the Maturity Date in order to provide the Administrative
Agent with ongoing updates as to the status of (i) the Refinance
Transaction, (ii) the commercial agreement and related hedging agreements
contemplated by the Commercial Term Sheet, (iii) the shareholders’
agreement and intercreditor agreement contemplated by the Equity &
Intercreditor Term Sheets, (iv) the security documents, billing services 


 

















 


arrangements, account control agreements and other agreements required
to be executed prior to or contemporaneously with the closing of the Refinance
Transaction, and (v) the refinancing in full of the Loan Parties’
obligations under the Master Transaction Agreement on or prior to the Maturity
Date.


 


(d)                                 From and after the Eighth Amendment
Effective Date to and including the Maturity Date (but excluding the amounts
referred to in Section 4(d) of the Eighth Amendment), the Borrowers
shall, concurrently with any applicable payment in the nature of a fee made to
the Secured Counterparty, pay to the Administrative Agent in immediately
available funds for the benefit of each Lender, a non-refundable fee calculated
as a percentage of such Lender’s Revolving Commitment, with such percentage
equal to the percentage obtained by dividing (x) the aggregate fees that
are being paid to the Secured Counterparty by (y) $35,000,000.


 


(e)                                  The Loan Parties shall deliver to the
Administrative Agent a copy of the Closing Checklist (as defined in the
amendment or waiver to the Master Transaction Agreement dated as of the Eighth
Amendment Effective Date) concurrently with delivery of the same to the Secured
Counterparty pursuant to the terms of the Master Transaction Agreement.


 


Section 3.                                            Waiver.


 


(a)                                  The Lenders hereby agree, subject to the
terms and conditions of this Amendment, to waive the Cash Collateral Default
and the August 28 Default (if any). 
The foregoing waivers shall relate back to, and be deemed effective as
of, the date of the occurrence of the applicable Default (if any).


 


(b)                                 The waivers by the Lenders described in
this Section 3 are contingent upon the satisfaction of the
conditions precedent set forth below in this Amendment and are limited to the
Eighth Amendment Defaults.  Such waivers
are limited to the extent described herein and shall not be construed to be a
consent to or a permanent waiver of Section 7.01(m) or Section 2.14(e) of
the Credit Agreement or any other terms, provisions, covenants, warranties or
agreements contained in the Credit Agreement or in any of the other Loan
Documents.  The Administrative Agent and
the Lenders reserve the right to exercise any rights and remedies available to
them in connection with any other present or future Defaults or Events of Default
with respect to the Credit Agreement or any other provision of any Loan
Document.


 


Section 4.                                            Conditions to Effectiveness. 
This Amendment shall be effective as of the Eighth Amendment Effective
Date when the Administrative Agent shall have received each of the following:


 


(a)                                  counterparts of this Amendment, duly
executed by each Loan Party and each Lender;


 


(b)                                 a duly executed amendment or waiver to
the Master Transaction Agreement which shall be effective and shall amend the
Master Transaction Agreement or waive the provisions thereof (i) to
provide for an extension of the Borrowers’ ability to 


 

















 


obtain hedging on an unmargined basis in accordance with the terms of
the Master Transaction Agreement through September 21, 2009, and (ii) which
shall otherwise be satisfactory to the Administrative Agent and the Majority
Lenders in their sole discretion;


 


(c)                                  an effective extension to the Exchange
Offering Memo (i) extending the expiration date of the Senior Notes
Exchange Offer to a date no later than September 20, 2009, and (ii) in
form and substance satisfactory to the Administrative Agent and the Majority
Lenders in their reasonable discretion;


 


(d)                                 in immediately available funds for the
benefit of each Lender, a non-refundable fee calculated as a percentage of such
Lender’s Revolving Commitment immediately after giving effect to this
Amendment, with such percentage equal to the percentage obtained by dividing (x) the
aggregate fees that are paid to the Secured Counterparty in connection with the
amendment or waiver described in paragraph (b) above (including without
limitation the aggregate “capital charges” paid in connection therewith, but
excluding the fees and other payments referred to in Section 4(a) thereof)
by (y) $35,000,000 (provided, that, this condition precedent
shall be deemed to have not been satisfied in the event that any Lender
receives a fee or fees in connection with this Amendment or the transactions
contemplated hereby greater than the fee contemplated by this Section 4(d));
and


 


(e)                                  a letter from the Refinance Party in form
and substance satisfactory to the Administrative Agent and the Majority Lenders
in their sole discretion.


 


Section 5.                                            Representations and Warranties. 
Each Loan Party jointly and severally hereby represents and warrants
that, as of the Eighth Amendment Effective Date (after giving effect to this
Amendment):


 


(a)                                  all representations and warranties of
such Loan Party contained in the Credit Agreement, as amended hereby, and any
other Loan Document are true and correct in all material respects with the same
effect as if such representations and warranties had been made on the Eighth
Amendment Effective Date (it being understood and agreed that any
representation which by its terms is made as of a specified date shall be
required to be true and correct only as of such specified date); and


 


(b)                                 no Default has occurred and is
continuing.


 


Section 6.                                            Consent of Guarantors; Confirmation of
Guarantees.  Each Guarantor hereby consents to this
Amendment and hereby confirms and agrees that notwithstanding the effectiveness
of this Amendment, the Guarantee contained in Article VIII of the Credit
Agreement is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects.


 


Section 7.                                            Release; Acknowledgement of Debt.


 


(a)                                  As a material part of the consideration
for the Administrative Agent and the Lenders entering into this Amendment, 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 Eighth Amendment Effective 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 Amendment, the Credit
Agreement, as amended hereby, or any other Loan Documents.  For the avoidance of doubt, the provisions of
this clause shall survive any termination of the Credit Agreement, as amended
hereby.


 


(b)                                 As of 9 a.m. New York time on the
Eighth Amendment Effective Date, (i) the aggregate outstanding principal
amount of (A) Revolving Advances is $0 and (B) Bridge Loans is
$5,400,000.00; and (ii) the aggregate undrawn face amount of the Letters
of Credit is $91,040,808.


 


Section 8.                                            Governing Law. 
This Amendment shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of New York without regard to conflict of
laws principles.


 


Section 9.                                            Entire Agreement. 
This Amendment, the Credit Agreement and the other Loan Documents
constitute the entire agreement and understanding among the parties and
supersede all prior agreements and understandings, whether written or oral,
among the parties hereto concerning the transactions provided herein and
therein.


 


Section 10.                                      Execution in Counterparts. 
This Amendment 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. 
Delivery of an executed counterpart of a signature page to this
Amendment by facsimile shall be as effective as delivery of a manually executed
counterpart of this Amendment.


 


Section 11.                                      Headings.  The headings
set forth in this Amendment are and shall be without substantive meaning or content
of any kind whatsoever and are not a part of the agreement between the parties
hereto.


 


Section 12.                                      Severability.  In case any
provision in or obligation under this Amendment shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.


 


[Signature pages follow]


 
















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers as of the
Eight Amendment Effective Date.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
   

  	
    Chaitu
  Parikh

  
	
   

  	
  Title:

  	
   

  	
    Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
   

  	
    Chaitu
  Parikh

  
	
   

  	
  Title:

  	
   

  	
    Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
   

  	
    Chaitu
  Parikh

  
	
   

  	
  Title:

  	
   

  	
    Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
   

  	
    Chaitu
  Parikh

  
	
   

  	
  Title:

  	
   

  	
    Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
   

  	
    Chaitu
  Parikh

  
	
   

  	
  Title:

  	
   

  	
    Chief
  Financial Officer

  
					



 

















 


	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/CHUNG-TAEK
  OH

  
	
   

  	
  Name:

  	
   

  	
    Chung-Taek
  Oh

  
	
   

  	
  Title:

  	
   

  	
    Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/
  SEBASTIEN RIBATTO

  
	
   

  	
  Name:

  	
   

  	
    Sebastien
  Ribatto

  
	
   

  	
  Title:

  	
   

  	
    Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Issuing Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/CHUNG-TAEK
  OH

  
	
   

  	
  Name:

  	
   

  	
    Chung-Taek
  Oh

  
	
   

  	
  Title:

  	
   

  	
    Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/
  SEBASTIEN RIBATTO

  
	
   

  	
  Name:

  	
   

  	
    Sebastien
  Ribatto

  
	
   

  	
  Title:

  	
   

  	
    Managing
  Director

  



 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/CHUNG-TAEK
  OH

  
	
   

  	
  Name:

  	
   

  	
    Chung-Taek
  Oh

  
	
   

  	
  Title:

  	
   

  	
    Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/
  SEBASTIEN RIBATTO

  
	
   

  	
  Name:

  	
   

  	
    Sebastien
  Ribatto

  
	
   

  	
  Title:

  	
   

  	
    Managing
  Director

  
					



 

















 


	
   

  	
  WACHOVIA
  BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/STEVEN
  MARKUNAS

  
	
   

  	
  Name:

  	
   

  	
    Steven
  Markunas

  
	
   

  	
  Title:

  	
   

  	
    Assistant
  Vice President

  



 

















 


	
   

  	
  CoBANK,
  ACB

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/DALE
  KEYES

  
	
   

  	
  Name:

  	
   

  	
    Dale
  Keyes

  
	
   

  	
  Title:

  	
   

  	
    Vice
  President

  



 

















 


	
   

  	
  MORGAN
  STANLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/S.E
  SAXE

  
	
   

  	
  Name:

  	
   

  	
    S.E.
  Saxe 

  
	
   

  	
  Title:

  	
   

  	
    SCO

  



 

















 


	
   

  	
  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:

  	
   

  	
    Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
    /s/DAVID
  O’DRISCOLL

  
	
   

  	
  Name:

  	
   

  	
    David
  O’Driscoll

  
	
   

  	
  Title:

  	
   

  	
    Assistant
  Vice President

  



 

















 


RZB FINANCE LLC


 


 


	
  By:

  	
   

  	
    /s/ASTRID
  WILKE

  	
   

  	
  By:

  	
   

  	
    /s/
  HERMINE KIROLOS

  
	
  Name:

  	
   

  	
    Astrid
  Wilke

  	
   

  	
  Name:

  	
   

  	
    Hermine
  Kirolos

  
	
  Title:

  	
   

  	
    Vice
  President

  	
   

  	
  Title:

  	
   

  	
    Group
  Vice President

  



 

















 


	
   

  	
  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/
  CAROLE R. ARTMAN-HODGE

  
	
   

  	
  Carole
  R. Artman-Hodge