Exhibit 10.1


 


SIXTH AMENDMENT, WAIVER & CONSENT


 


This
Sixth Amendment, Waiver & Consent (this “Amendment”) dated as of July
31, 2009 (the “Sixth 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 and the Fifth Amendment dated as of June 15, 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 7.01(m) of the
Credit Agreement provides that it is an Event of Default if the Parent fails to
initiate on or before June 26, 2009 the commencement of an exchange offer to
the holders of the Senior Notes on terms necessary to meet the conditions
specified in the financing proposal the Lenders received from the Borrowers
(the “June 26 Milestone Requirement”). 
As of the date hereof, a purported Event of Default may have occurred
and be continuing due to the Parent’s failure to comply with the June 26
Milestone Requirement (the “June 26 Default”).


 


C.            Section 7.01(m) of the
Credit Agreement provides that it is an Event of Default if the Borrowers fail
to deliver to the Administrative Agent and the Lenders, on or before July 17,
2009, a commitment letter providing for the refinancing in full of the
Obligations on or before July 31, 2009 (the “July 17 Milestone Requirement”).  As of the date hereof, a purported Event of
Default may have occurred and be continuing under Section 7.01(m) of the Credit
Agreement due the Borrowers’ failure to comply with the July 17 Milestone
Requirement (the “July 17 Default”).


 


D.            Section 7.01(m) of the
Credit Agreement provides that it is an Event of Default if the Senior Notes
Exchange Offer is extended to expire after July 27, 2009 without holders of a
sufficient amount of the Senior Notes to make the Senior Notes Exchange Offer
effective having accepted the Senior Notes Exchange Offer.  The extension by the Parent on July 28, 2009
of the Senior Notes Exchange Offer to August 1, 2009 constituted an Event of
Default under Section 7.01(m) of the Credit Agreement, and such Event of
Default is continuing as of the date hereof (the “July 27 Default”).


 

















 


E.             Section 2.14(e) of the
Credit Agreement provides that if any Letters of Credit are outstanding or
drawn and not reimbursed on the fifth Business Day prior to the Maturity Date,
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 or 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 (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(a) of the Credit Agreement (the “Cash Collateral Default”,
and together with the June 26 Default (if any), the July 17 Default (if any)
and the July 27 Default, collectively, the “Sixth Amendment Defaults”).


 


F.             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 Sixth Amendment Defaults to the extent provided herein.


 


G.            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 Sixth 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:


 


“Commercial
Term Sheet” means the final term sheet evidencing the proposed commodity
supply arrangements among the Refinance Party, the Parent and the Borrowers,
acknowledged to be in the late stages of negotiation among such Persons
pursuant to the Sixth Amendment Acknowledgement Letter.


 


“Equity
& Intercreditor Term Sheets” means, collectively, the Equity Term Sheet
and the term sheet regarding Intercreditor Arrangements attached as exhibits to
the Sixth Amendment Acknowledgment Letter.


 


“Exchange
Offering Memo” means the MxEnergy Holdings Inc. Confidential Offering
Memorandum and Consent Solicitation Statement dated June 26, 2009.


 

















 


“Lock-Up
Agreement” means the Lock-Up, Support and Voting Agreement dated as of June
26, 2009 among the Parent and the holders of the Senior Notes party thereto.


 


“Refinance
Party” means the Person identified in the Term Sheets and which, upon the
closing of the Refinance Transaction, would provide the services to the
Borrowers described in the Term Sheets and in the definition of “Refinance
Transaction”.


 


“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 August
31, 2009.


 


“Senior
Notes Exchange Offer” means the exchange offer for the Senior Notes
commenced by the Parent pursuant to the Exchange Offering Memo.


 


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


 


“Sixth
Amendment Acknowledgment Letter” has the meaning given to such term in the
Sixth Amendment.


 


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


 


“Term
Sheets” means, collectively, the Equity & Intercreditor Term Sheets and
the Commercial Term Sheet.


 


(ii)           The definition of “Maturity Date” is hereby amended in
its entirety to read as follows:


 


“Maturity Date” means August 18, 2009;
provided that, if on or prior to August 14, 2009 the Administrative
Agent has received (a) a fully executed copy of a commitment letter from the
Refinance Party to MxEnergy and/or the Parent which (i) provides that the
Refinance Party’s obligations thereunder are not subject to the completion of
due diligence by the Refinance Party, (ii) describes a transaction that meets
the definition of “Refinance Transaction”, and (iii) is in form and substance
satisfactory to the Administrative Agent and the Majority Lenders in their sole
discretion, (b) effective amendments to the Exchange Offering Memo and the
Lock-Up Agreement, in each case (i) containing terms substantially consistent
with the Term Sheets and other terms agreed to (pursuant to evidence reasonably
satisfactory to the Administrative Agent and the Majority Lenders) by the
Parent, the Refinance Party and the holders of the Senior Notes, (ii) extending
the expiration date of the Senior Notes Exchange Offer to a date no later than August
28, 2009, (iii) identifying the Refinance Party by name and (iv) in form and
substance reasonably satisfactory to the Administrative Agent and the Majority 


 

















 


Lenders, and (c) evidence satisfactory to the
Administrative Agent and the Majority Lenders in their sole discretion that all
consents, approvals and notices set forth on Part A of Schedule I to the
Sixth Amendment have been obtained or made on or prior to such date, then the
Maturity Date shall be extended to August 31, 2009.


 


(iii)          The last sentence of the definition of “Revolving
Commitment” is hereby amended in its entirety to read as follows:


 


The initial aggregate amount of the Revolving
Commitments on the Closing Date is $244,600,000.00 and reduces to
$230,000,000.00 on the First Amendment Effective Date, $210,000,000.00 on March
31, 2009, $185,000,000.00 on April 30, 2009, $135,000,000.00 on the Second
Amendment Effective Date, $115,000,000.00 on the Fifth Amendment Effective
Date, and $94,000,000.00 on the Sixth Amendment Effective Date.


 


(iv)          The definition of “Trigger Event” is hereby amended in
its entirety to read as follows:


 


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


 


(a)           at or prior to 9:00 a.m. New
York City time on August 3, 2009, the Parent fails to deliver to the
Administrative Agent effective extensions of the Senior Notes Exchange Offer
extending the expiration date of the Senior Notes Exchange Offer to a date no
later than August 14, 2009;


 


(b)           on or prior to August 7,
2009, the Parent or MxEnergy fails to deliver to the Administrative Agent a
letter from the Refinance Party confirming to the effect that the Refinance
Party 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;


 


(c) on or prior to August 7,
2009, the Parent or MxEnergy fails to deliver (w) to Bracewell & Giuliani
LLP, the Commercial Term Sheet; (x)  to
the Administrative Agent, a certificate from an authorized officer of the
Parent certifying that the Commercial Term Sheet (i) evidences that any
collateral to be provided to the Refinance Party in connection with Refinance
Transaction shall specifically exclude the LC Cash Collateral Account and the “Cash
Collateral” (as defined in the Amended DACA (as defined in the Sixth
Amendment)), and (ii) enables a refinancing in full of the Obligations and
permits MxEnergy to request the issuance of letters of credit in a face amount
sufficient to enable the Borrowers to comply with Section 2.14(e)(ii); and (y) to
the Administrative Agent, a written


 

















 


agreement among the Refinance Party, the
Parent and the Borrowers confirming that (i) such Commercial Term Sheet
represents the agreement of such Persons as to the matters contained therein, (ii)
no other material matters in connection with the Senior Notes Exchange Offer or
the Refinance Transaction remain outstanding as between such Persons, and (iii)
such Commercial Term Sheet is not inconsistent in any manner with the Equity &
Intercreditor Term Sheets;


 


(d)           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, as modified pursuant to the amendment to the Exchange Offering Memo
described in the definition of “Maturity Date”;


 


(e)           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 (x) as required in
the Sixth Amendment to cause the occurrence of the Sixth Amendment Effective
Date, (y) as described in the definition of “Maturity Date” (i.e., to make any changes required to reflect the terms set
forth in the Term Sheets and to extend the expiration date of the Senior Notes
Exchange Offer to a date no later than August 28, 2009) or (z) solely to 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


 


(f)            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 August 31, 2009, 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)            The first sentence of Section 2.14(a) is hereby
amended by (x) replacing the reference therein to “30 days before the Maturity
Date” with the following: “August 11, 2009 or, if the Maturity Date has been
extended to August 31, 2009 in accordance with the definition of “Maturity Date”,
August 27, 2009” 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), October 31, 2009, and (C)
with respect to Letters of Credit in an aggregate outstanding face amount of up
to $40,000,000 only, January 31, 2010; provided that (x) 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 and (y) no Letter of Credit issued, increased, amended,
extended or renewed on or after the Sixth Amendment Effective Date may have an
expiration date that is later than October 15, 2009, except that Letters of
Credit issued, increased, amended, extended or renewed after the Maturity Date
has been extended to August 31, 2009 pursuant to the proviso set forth in the
definition of “Maturity Date” may have an expiration date that is later than October
15, 2009 (but not later than November 15, 2009) so long as the aggregate face
amount of such Letters of Credit (as so issued, increased, amended, extended or
renewed) is not in excess of $10,000,000 (and, for avoidance of doubt, any such
issuance, increase, amendment, extension or renewal shall constitute a usage
of, and require availability under, the basket set forth in clause (C) of this
clause (ii), as applicable);


 


(iii)          Section 2.14(e) is hereby amended in its entirety as
follows:


 


(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 second Business Day prior to the Maturity Date then in
effect, then the Administrative Agent or the Majority Lenders shall be entitled
to direct the Borrowers to (and the Borrowers shall, in accordance with such
direction) on or after 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 the Amended and Restated Deposit Account
Control Agreement required to be executed by MxEnergy on the Sixth Amendment
Effective Date, 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 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, or (iii) provide the Administrative Agent with
any combination of the foregoing as the Administrative Agent shall elect in its
sole 


 

















 


discretion; provided that if the
Maturity Date has been extended pursuant to the proviso in the definition of “Maturity
Date”, the Administrative Agent or the Majority Lenders shall be entitled to
direct the Borrowers as set forth above (and the Borrowers shall comply with
such directions) in the event that any Letters of Credit shall be outstanding
or shall be drawn and not reimbursed on August 28, 2009.


 


(c)           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, or (d) 6.1 Bcf on any day in the month of August
2009.


 


(d)           Amendments to Section 7.01:


 


(i)            Section 7.01(c) is hereby
amended by inserting “2.14(e)” immediately before “5.01” where such Section reference
appears therein; and


 


(ii)           Section 7.01(n) is hereby
amended by replacing the period at the end thereof with “; or” and inserting
the following thereafter:


 


(o)  Adverse
Regulatory Action.  Any governmental
or regulatory body having jurisdiction or any LDC shall take any adverse action
(in the sole judgment of the Majority Lenders) against the Parent, a Borrower
or any of their respective Subsidiaries.


 


(e)           Amendment to Section 10.01.  Section
10.01(c) is hereby amended in its entirety as follows:


 


(c)(i) 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; or (ii) postpone any date fixed by Section 2.14(e)
for cash collateralization of, or provision of a substitute letter of credit
naming the Issuing Bank as beneficiary with respect to, the aggregate Letter of
Credit Exposure allocable to Letters of Credit outstanding on such date,
without the written consent of each Lender;


 


(f)            Amendment to Schedule 2.01. 
Schedule 2.01 to the Credit Agreement is hereby amended as attached
hereto as Annex I.


 


Section 2.               Waiver.


 

















 


(a)           The Lenders hereby agree, subject to the
terms and conditions of this Amendment, to waive the June 26 Default (if any),
the July 17 Default (if any), the July 27 Default and the Cash Collateral
Default.  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 2 are contingent upon the satisfaction of the conditions
precedent set forth below in this Amendment and are limited to the Sixth
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 3.               Consent.  The Lenders hereby consent to the execution
and delivery of the Amended DACA (as defined below) by the parties thereto.


 


Section 4.               Conditions to Effectiveness.  This
Amendment shall be effective as of the Sixth 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)           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 August 1, 2009, and (ii) in form and substance
satisfactory to the Administrative Agent and the Majority Lenders in their sole
discretion;


 


(c)           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 greater of (i) 1.0% and (ii) the
percentage obtained by dividing (x) the aggregate fees that are paid to the
Secured Counterparty in consideration for the amendment or waiver described in
paragraph (d) below 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(c));


 


(d)           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 extend the
date required for a Liquidity Event to August 31, 2009, (ii) to extend the
Borrowers’ ability to obtain hedging on an unmargined basis in accordance with
the terms of the Master Transaction Agreement through August 18, 2009 (and
providing for a further automatic extension to August 31, 2009 upon the
satisfaction of 


 

















 


certain conditions substantially similar to those contained in the
proviso set forth in the definition of “Maturity Date”), (iii) to modify the
definition of “Milestone” therein to conform in all material respects to the
definition of “Trigger Event” in this Amendment, and (iv) which shall otherwise
be satisfactory to the Administrative Agent and the Majority Lenders in their
sole discretion;


 


(e)           counterparts of the Amended and Restated
Deposit Account Control Agreement attached hereto as Exhibit A (the “Amended
DACA”), duly executed by MxEnergy;


 


(f)            (i) an acknowledgement
letter attaching the Equity & Intercreditor Term Sheets as exhibits and
signed by each of the
Refinance Party, the holders of Senior Notes parties to the Lock-Up
Agreements, the Parent and the Borrowers (the “Sixth Amendment
Acknowledgement Letter”) confirming
to the effect that the Equity & Intercreditor Term Sheets represent the
basis of definitive documents to be negotiated and agreed among such Persons
and that the principal business terms of the commodity supply arrangements are
in the late stages of negotiation among the Refinance Party, the Parent and the
Borrowers, and (ii) a certificate of the Secretary or Assistant Secretary of
the Parent dated as of the Sixth Amendment Effective Date and certifying that
attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of the Parent approving the Refinance Transaction as
described in the Term Sheets; and


 


(g)           confirmation that (i) the
Borrowers shall have paid to the Administrative Agent (or directly to its
counsel or consultants) all amounts invoiced on or prior to the Sixth Amendment
Effective Date for fees and expenses due and payable to the Administrative
Agent including the reasonable fees and expenses of counsel and consultants to
the Administrative Agent and/or (ii) that the Borrowers shall have paid an
amount to each of Bracewell & Giuliani LLP, Hughes Hubbard & Reed LLP
and Goldin Inc. such that each such Person holds as a retainer an amount equal
to at least $75,000.


 


Section 5.               Representations and Warranties.  Each Loan
Party jointly and severally hereby represents and warrants that, as of the
Sixth 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 Sixth
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);


 


(b)           no Default has occurred and is
continuing; and


 


(c)           (i) Part A of Schedule I attached
hereto lists all approvals, consents or notices required to be obtained or made
by any Loan Party from or to any governmental or regulatory body having
jurisdiction or any LDC as a result of the Senior Notes Exchange Offer prior to
the closing of such Senior Notes Exchange Offer, (ii) Part B of Schedule I



 

















 


attached hereto lists all other approvals, consents or notices required
to be obtained or made by any Loan Party from or to any governmental or
regulatory body having jurisdiction or any LDC as a result of the Senior Notes
Exchange Offer; and (iii) all such approvals, consents and notices have been
made or obtained as of the Sixth Amendment Effective Date, or such Schedule
I lists the status thereof as of the Sixth Amendment Effective Date.


 


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 Sixth
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 Sixth
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 $92,990,908.65.


 


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
Sixth Amendment Effective Date.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  CHAITU PARIKH 

  
	
   

  	
  Name:

  	
   

  	
  Chaitu
  Parikh 

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  CHAITU PARIKH 

  
	
   

  	
  Name:

  	
   

  	
  Chaitu
  Parikh

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  CHAITU PARIKH 

  
	
   

  	
  Name:

  	
   

  	
  Chaitu
  Parikh

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President and 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:

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  SERVICES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  CHAITU PARIKH 

  
	
   

  	
  Name:

  	
   

  	
  Chaitu
  Parikh

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President and Chief Financial Officer

  



 

















 


	
   

  	
  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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Issuing Bank

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  BARBARA PAULSEN

  
	
   

  	
  Name:

  	
   

  	
  Barbara
  Paulsen

  
	
   

  	
  Title:

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  CHUNG-TAEK OH

  
	
   

  	
  Name:

  	
   

  	
  Chung-Taek
  Oh

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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/ STEVEN MARKUNAS

  
	
   

  	
  Name:

  	
   

  	
  Steven Markunas

  
	
   

  	
  Title:

  	
   

  	
  Assistant Vice President

  



 

















 


	
   

  	
  CoBANK, ACB

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ DALE KEYES

  
	
   

  	
  Name:

  	
   

  	
  Dale Keyes

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  



 

















 


	
   

  	
  MORGAN STANLEY BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ MELISSA JAMES

  
	
   

  	
  Name:

  	
   

  	
  Melissa James

  
	
   

  	
  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/
  AIDAN LANIGAN

  
	
   

  	
  Name:

  	
   

  	
  Aidan
  Lanigan

  
	
   

  	
  Title:

  	
   

  	
  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

  



 

















 


	
  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

  



 

















 


	
   

  	
  By:

  	
   

  	
  /s/
  Jeffrey A. Mayer

  
	
   

  	
  Name:

  	
   

  	
  Jeffrey
  A. Mayer

  



 

















 


	
   

  	
  By:

  	
   

  	
  /s/
  Chaitu Parikh

  
	
   

  	
  Name:

  	
   

  	
  Chaitu
  Parikh

  



 

















 


	
   

  	
  By:

  	
   

  	
  /s/
  Carole Artman-Hodge

  
	
   

  	
  Name:

  	
   

  	
  Carole
  Artman-Hodge

  



 
















 


Exhibit A


 


AMENDED AND RESTATED DEPOSIT ACCOUNT CONTROL AGREEMENT


 


This
Amended and Restated Deposit Account Control Agreement is entered into as of July 31,
2009 (this “Agreement”) among MxEnergy Inc., a Delaware corporation (the
“Grantor”), Société Générale, as administrative agent under the Credit
Agreement described below (the “Administrative Agent”), Société
Générale, as Issuing Bank under the Credit Agreement described below (the “Issuing
Bank”), and Société Générale (the “Bank”), with respect to the
following:


 


A.            The Bank has agreed to
establish and maintain for the Grantor the time deposit account titled “MXE LC
Cash Collat. Acct.”, with Account No. 199508 (such time deposit account,
the “LC Cash Collateral Account” and, together with any other time or
other deposit account that the Bank has previously established or may at any
time hereafter establish for the Grantor as collateral security for the
obligations of the Grantor under the Credit Agreement described below, as such
may be renumbered, herein called the “Blocked Accounts”).


 


B.            The Grantor, the lenders
party thereto, and the Administrative Agent, have entered into the Third
Amended and Restated Credit Agreement dated as of November 17, 2008 (as
further amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”).


 


C.            The Grantor, the other
guarantors party thereto, and the Administrative Agent for the ratable benefit
of itself and the other Secured Parties have entered into the First Amended and
Restated Security Agreement dated as of August 1, 2006 (as further
amended, restated, supplemented or otherwise modified from time to time, the “Security
Agreement”).


 


D.            Pursuant to the requirements
of the Credit Agreement and the Security Agreement, the Grantor has granted to
the Administrative Agent for the benefit of the Secured Parties a security
interest in each such Blocked Account, all checks and other payment
instructions (individually, a “Check”; collectively, the “Checks”)
deposited in any such Blocked Account from time to time, all funds deposited in
any such Blocked Account from time to time, and all proceeds of any thereof
(the foregoing collectively referred to herein as the “Cash Collateral”).


 


E.             The Grantor, the
Administrative Agent and the Bank previously executed the Deposit Account
Control Agreement dated May 14, 2009 (the “Existing Agreement”) to
perfect the security interest of the Administrative Agent for the benefit of
the Secured Parties in the Cash Collateral and to provide for the disposition
of net proceeds of Checks deposited in any Blocked Account, and it is a
condition to the Sixth Amendment Effective Date that the Existing Agreement be
amended and restated in its entirety as set forth herein.


 


Accordingly,
the Grantor, the Administrative Agent and the Bank each agree as follows:


 


Section 1.               Definitions and
Interpretation.


 

















 


(a)           All capitalized terms not
otherwise defined in this Agreement shall have the meaning assigned to such
terms by the Credit Agreement.  Any terms
used in this Agreement that are defined in the Security Agreement and not
otherwise defined herein or in the Credit Agreement shall have the meanings
assigned to those terms in the Security Agreement.  The incorporation by reference of terms
defined in and provisions set forth in the Credit Agreement or any other Loan
Document shall survive the Maturity Date and any expiration or termination of
the Credit Agreement or such Loan Document until this Agreement is terminated
as provided in Section 16 hereof.


 


(b)           As used herein, the
following terms shall have the following meanings:


 


(i) “Applicable
Secured Parties” shall mean the Secured Parties; provided that, as
of the Maturity Date or the date of any expiration or termination of the Credit
Agreement in accordance with its terms, so long as the Borrowers have either (i) jointly
and severally paid to the Administrative Agent an amount equal to 105% of the
Letter of Credit Exposure allocable to all Letters of Credit outstanding on
such date, or (ii) provided the Issuing Bank with a substitute letter of
credit naming the Issuing Bank as beneficiary, in form and substance and from a
financial institution 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 on such date, or (iii) provided the Administrative Agent
with any combination of the foregoing as the Administrative Agent shall have
elected in its sole discretion, “Applicable Secured Parties” shall mean only
the following Secured Parties:  the
Administrative Agent and the Issuing Bank.


 


(ii) “Applicable
Secured Obligations” shall mean the Secured Obligations; provided
that, as of the Maturity Date or the date of any expiration or termination of
the Credit Agreement in accordance with its terms, so long as the Borrowers
have either (i) jointly and severally paid to the Administrative Agent an
amount equal to 105% of the Letter of Credit Exposure allocable to all Letters
of Credit outstanding on such date, or (ii) provided the Issuing Bank with
a substitute letter of credit naming the Issuing Bank as beneficiary, in form
and substance and from a financial institution 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 on such date, or (iii) provided
the Administrative Agent with any combination of the foregoing as the
Administrative Agent shall have elected in its sole discretion, “Applicable
Secured Obligations” shall mean only the following Secured Obligations:  the obligations of the Borrowers under this
Agreement and under the Loan Documents, in each case in connection with the
Letters of Credit, including the Reimbursement Obligations and the Grantor’s
obligations pursuant to Section 6 of this Agreement.


 


Section 2.               Grant of Security Interest.


 


(a)           The Grantor hereby (i) confirms
the grant made pursuant to the Security Agreement and the Existing Agreement,
as collateral security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Applicable Secured Obligations, of a first priority security interest in the
Cash Collateral in favor of the Administrative Agent for the 


 


14

















 


benefit of the Applicable Secured Parties,
and (ii) represents and warrants to the Administrative Agent and the Bank
that it has not assigned or granted a security interest the Cash Collateral or
any portion thereof, except to the Administrative Agent subject to this
Agreement and Permitted Liens in favor of Société Générale, as Secured
Counterparty, and Denham Commodity Partners Fund LP, in each case, the priority
of which is governed by the Intercreditor Agreement.


 


(b)           The Grantor covenants that
it will not (i) sell, assign, transfer, exchange or otherwise dispose of,
or grant any option with respect to, all or any part of the Cash Collateral; or
(ii) create, incur or permit to exist any lien, security interest, pledge,
assignment, charge encumbrance, or option of any kind in favor of, or any claim
of, any person with respect to any of the Cash Collateral, other than the
security interest of the Administrative Agent subject to this Agreement and
Permitted Liens in favor of Société Générale, as Secured Counterparty, and
Denham Commodity Partners Fund LP, in each case, the priority of which is
governed by the Intercreditor Agreement.


 


(c)           The Grantor will maintain
the security interest in the Cash Collateral created by the Security Agreement
and the Existing Agreement as a first priority, perfected security interest and
defend the right, title and interest of the Administrative Agent, for the
benefit of the Applicable Secured Parties, in and to the Cash Collateral
against the claims and demands of all Persons whomsoever.  At any time and from time to time, upon the
request of the Administrative Agent, and at the sole expense of the Grantor,
the Grantor will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Administrative Agent
reasonably may request for the purposes of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of financing statements under the
UCC.


 


Section 3.               Deposit of Funds.  As of the date of this Agreement, the
Borrowers have deposited in the LC Cash Collateral Account an amount in
immediately available funds equal to $75,000,000.  After the date of this Agreement, the Grantor
shall be required to deposit and maintain in the LC Cash Collateral Account (a) prior
to the Full Collateralization Date (as defined below), an amount equal to
$75,000,000, and (b) on the date upon which the Borrowers are required to
deposit funds in the LC Cash Collateral Account or provide a provide a
substitute letter of credit to the Issuing Bank pursuant to any of Sections
2.14(e), 7.02 or 7.03 of the Credit Agreement (such date, the “Full
Collateralization Date”) and on each day after the Full Collateralization
Date until the Termination Date (as defined below), an amount equal to (i) 105%
of the Letter of Credit Exposure allocable to all Letters of Credit outstanding
on such day minus (ii) the aggregate face amount of any substitute letter(s) of
credit provided by the Grantor to the Issuing Bank (at the direction of or with
the consent of the Administrative Agent) which names the Issuing Bank as
beneficiary and which is in full force and effect on such day (which letter of
credit is in form and substance and from a financial institution satisfactory
to the Issuing Bank and which otherwise complies with Section 2.14(e)(ii) of
the Credit Agreement).


 


Section 4.               Control over Blocked
Accounts and Cash Collateral. This Agreement evidences
the Administrative Agent’s complete control over each Blocked Account and the
Cash Collateral.  Notwithstanding
anything to the contrary in any agreement between the Bank and the 


 


15

















 


Grantor governing any
Blocked Account, the Bank will comply with, and is fully entitled to rely upon,
instructions originated by the Administrative Agent as set forth herein
directing the withdrawal or disposition of funds in any Blocked Account or as
to any other matters relating to any Blocked Account without further consent of
the Grantor, even if such instructions are contrary to any instructions or
demands that the Grantor may give to the Bank. The Bank may not comply with any
instructions of the Grantor in respect of any Blocked Account prior to the end
of the Activation Period (as defined below). 
The LC Cash Collateral Account is the “LC Cash Collateral Account” as
such term is described and used in the other Loan Documents.


 


Section 5.               Activation Period. During the
Activation Period (as defined below), the Bank shall prevent the Grantor from
making any withdrawals from any Blocked Account. The “Activation Period”
means the period which commences on May 14, 2009 and which ends only on
the first Business Day after the Bank has received written notice from the
Administrative Agent that the Grantor is entitled to make a withdrawal from the
Blocked Account and that this Agreement has terminated.  Funds are not available if, in the reasonable
determination of the Bank, they are subject to a hold, dispute or legal process
preventing their withdrawal.


 


Section 6.               Letters of Credit.


 


(a)           Notwithstanding the
occurrence of the Maturity Date or any expiration or termination of the Credit
Agreement and/or any other Loan Document, if the Issuing Bank shall make any
disbursement in respect of a Letter of Credit, the Grantor agrees to reimburse
such disbursement (which obligation shall be a “Reimbursement Obligation” as
defined under the Credit Agreement, notwithstanding the occurrence of the
Maturity Date or any expiration or termination of the Credit Agreement and/or
any other Loan Document) 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 Grantor 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 Grantor 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 Grantor receives 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 Grantor receives such
notice, if such notice is not received prior to such time on the day of
receipt.  The Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the
Grantor.  The Grantor, the Administrative
Agent, the Issuing Bank and the Bank agree that the Administrative Agent may on
the Grantor’s behalf make any such payment to the Issuing Bank from funds on
deposit in any Blocked Account immediately after the Issuing Bank makes any
disbursement in respect of a Letter of Credit, and such payment shall satisfy
the Grantor’s reimbursement obligations under this clause (a) in
connection with such disbursement.


 


(b)  The Grantor agrees
that Section 2.14(d) and Section 2.14(f) of
the Credit Agreement are incorporated into this Agreement as if fully set forth
herein, mutatis mutandis.


 


16

















 


(c)           Notwithstanding the
occurrence of the Maturity Date or any expiration or termination of the Credit
Agreement and/or the Security Agreement, the Grantor agrees 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 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 and the date that this
Agreement expires or is terminated in accordance with its terms.  All such fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days.  In addition, the Grantor agrees 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, 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.


 


Section 7.               Subordination. The Bank
agrees that all of its present and future rights against any Blocked Account
are subordinate to the Administrative Agent’s security interest therein and
that it shall not offset, charge, deduct or otherwise withdraw funds from any
Blocked Account except as permitted by Section 8, until it has been
advised in writing by the Administrative Agent that all of the Applicable
Secured Obligations are paid in full. The Administrative Agent shall notify the
Bank promptly in writing upon payment in full of the Applicable Secured
Obligations.


 


Section 8.               Permitted Charges. The Bank is
permitted to charge any Blocked Account:


 


(a)           for its reasonable and
customary fees and charges relating to such Blocked Account or this Agreement;
and


 


(b)           in the event any Check
deposited into such Blocked Account is returned unpaid for any reason or for
any breach of warranty claim.


 


Section 9.               Payment of Charges.


 


(a)           If the balances in any
Blocked Account are not sufficient to compensate the Bank for any fees or
charges due the Bank in connection with such Blocked Account or this Agreement,
the Grantor agrees to pay the Bank on demand the amount due the Bank. The
Grantor will have breached this Agreement if it has not paid the Bank, within
five days after any demand, the amount due the Bank.


 


(b)           If the balances in any
Blocked Account are not sufficient to compensate the Bank for any returned
Check, the Grantor agrees to pay the Bank on demand the amount due the Bank.
The failure to so pay the Bank shall constitute a breach of this Agreement by
the Grantor.


 


(c)           The Grantor hereby
authorizes the Bank, without prior notice, from time to time to debit any other
account the Grantor may have with the Bank for the amount or amounts due the
Bank under Section 9(a) or 9(b).


 


17

















 


Section 10.             Statements. In addition
to the original Bank statements that will be provided to the Grantor, the Bank
will provide the Administrative Agent with a duplicate of each such statement
and such other account information reasonably requested by the Administrative
Agent without the Grantor’s further consent. The Grantor authorizes the Bank to
provide any account information requested by the Administrative Agent.


 


Section 11.             Remedies.


 


(a)           Upon the occurrence of an
Event of Default (including, for avoidance of doubt and without limitation, (x) any
failure to comply with Sections 2(b), 2(c), 3 or 6(a) of
this Agreement (without grace period), (y) any failure to comply with Section 6(c) of
this Agreement within three Business Days after the fees described therein
become due and payable, and (z) any representation or statement made or
deemed to be made by the Grantor in this Agreement proving to have been
incorrect in any material respect when made or deemed made), if Cash Collateral
remains in any Blocked Account, the Administrative Agent may, without notice to
the Grantor of any kind, except for notices required by law which may not be waived,
apply the Cash Collateral, after deducting all reasonable costs and expenses of
every kind incurred in respect thereof or in any way relating to the Cash
Collateral or the Blocked Accounts or the rights of the Grantor hereunder,
including, without limitation, reasonable attorneys’ fees and disbursements of
counsel to the Administrative Agent, to the payment in whole or in part of the
Applicable Secured Obligations.  Only
after such application and after the payment by the Administrative Agent of any
other amount required by any provision of law, including, without limitation, Section 9-608(a)(1)(C) of
the UCC, need the Administrative Agent account for the surplus, if any, to the
Grantor.  In addition to the rights,
powers and remedies granted to it under this Agreement and in any other
agreement securing, evidencing or relating to the Applicable Secured
Obligations, the Administrative Agent shall have all the rights, powers and
remedies available at law, including, without limitation, the rights and remedies
of a secured party under the UCC.  To the
extent permitted by law, the Grantor waives presentment, demand, protest and
all notices of any kind and all claims, damages and demands it may acquire
against the Administrative Agent and the Issuing Bank arising out of the
exercise by them of any rights hereunder.


 


(b)           The Grantor shall remain
liable for any deficiency if the proceeds of any disposition of the Cash
Collateral are insufficient to pay the Applicable Secured Obligations; and the
fees and disbursements of any attorneys employed by the Administrative Agent to
collect such deficiency and any other expenses incurred by the Administrative
Agent in connection with such collection.


 


(c)           The Administrative Agent
shall not by any act (except by written instrument pursuant to Section 22(a)
hereof) of delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof.  No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent, any right, power or
privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise of
any right, power or privilege.  A waiver
by the Administrative 


 


18

















 


Agent of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent would otherwise have on any future occasion.


 


Section 12.             Administrative Agent’s
Appointment as Attorney-in-Fact.


 


(a)           The Grantor hereby
irrevocably constitutes and appoints the Administrative Agent and any officer
or agent of the Administrative Agent, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of the Grantor and in the name of the Grantor or in the
Administrative Agent’s own name, from time to time in the Administrative Agent’s
discretion, for the purpose of carrying out the terms of this Agreement and any
other agreement securing, evidencing or relating to the Secured Obligations, to
take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement and any other agreement securing, evidencing or relating to the
Secured Obligations, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.


 


(b)           The Grantor hereby ratifies
all that said attorneys shall lawfully do or cause to be done pursuant to the
power of attorney granted in Section 12(a).  All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable
until this Agreement and each other agreement securing, evidencing or relating
to the Applicable Secured Obligations are terminated and the security interests
created by this Agreement and each other agreement securing, evidencing or
relating to the Applicable Secured Obligations are released.


 


Section 13.             Bank’s Liability and Duties.


 


(a)           The Bank will not be liable
to the Grantor or the Administrative Agent for any expense, claim, loss, damage
or cost (“Damages”) arising out of or relating to its performance under
this Agreement other than those Damages which result directly from its acts or
omissions constituting negligence or intentional misconduct.


 


(b)           In no event will the Bank be
liable for any special, indirect, exemplary or consequential damages, including
but not limited to lost profits.


 


(c)           The Bank will be excused
from failing to act or delay in acting, and no such failure or delay shall
constitute a breach of this Agreement or otherwise give rise to any liability
of the Bank, if (i) such failure or delay is caused by circumstances
beyond the Bank’s reasonable control, including but not limited to legal
constraint, emergency conditions, action or inaction of governmental, civil or
military authority, fire, strike, lockout or other labor dispute, war,
terrorist activity, riot, theft, flood, earthquake or other natural disaster,
breakdown of public or private or common carrier communications or transmission
facilities, equipment failure, or negligence or default of the Grantor or the
Administrative Agent or (ii) such failure or delay resulted from the Bank’s
reasonable 


 


19

















 


belief that the action would have violated
any guideline, rule or regulation of any governmental authority.


 


(d)           The Bank shall have no duty
to inquire or determine whether the Grantor’s obligations to the Administrative
Agent are in default or whether the Administrative Agent is entitled to provide
any instructions to the Bank. The Bank may rely on notices and communications
it believes in good faith to be genuine and given by the appropriate party.


 


(e)           Notwithstanding any of the
other provisions in this Agreement, in the event of the commencement of a case
pursuant to Title 11, United States Code, filed by or against the Grantor, or
in the event of the commencement of any similar case under then applicable
federal or state law providing for the relief of debtors or the protection of
creditors by or against the Grantor, the Bank may act as the Bank deems
necessary to comply with all applicable provisions of governing statutes and
shall not be in violation of this Agreement as a result.


 


(f)            The Bank shall be permitted
to comply with any writ, levy order or other similar judicial or regulatory
order or process concerning any Blocked Account or any Check and shall not be
in violation of this Agreement for so doing.


 


Section 14.             Grantor Indemnity.


 


(a)           The Grantor shall indemnify
the Bank against, and hold it harmless from, any and all liabilities, claims,
costs, expenses and damages of any nature (including but not limited to
allocated costs of staff counsel, other reasonable attorney’s fees and any fees
and expenses) in any way arising out of or relating to disputes or legal
actions concerning the Bank’s provision of the services described in this
Agreement. This section does not apply to any cost or damage attributable to
the gross negligence or intentional misconduct of the Bank. The Grantor’s
obligations under this section shall survive termination of this Agreement.


 


(b)           The Grantor confirms and
acknowledges that, notwithstanding the occurrence of the Maturity Date or any
expiration or termination of the Credit Agreement and/or any other Loan
Document, Section 10.05 (Indemnification) of the Credit Agreement
is and shall remain applicable to the rights and obligations of the Grantor,
the Administrative Agent and the Issuing Bank under and related to this
Agreement, and that such provision shall survive the Termination Date (as
defined below).


 


(c)           The agreements in this Section 14
shall survive termination of this Agreement and any other agreement securing,
evidencing or relating to the Applicable Secured Obligations.


 


Section 15.             Costs.


 


(a)           The Grantor shall pay to the
Bank, upon receipt of the Bank’s invoice, all costs, expenses and attorneys’
fees (including allocated costs for in-house legal services) incurred by the
Bank in connection with the enforcement of this Agreement and any 


 


20

















 


instrument or agreement required hereunder,
including but not limited to any such costs, expenses and fees arising out of
the resolution of any conflict, dispute, motion regarding entitlement to rights
or rights of action, or other action to enforce the Bank’s rights in a case
arising under Title 11, United States Code. The Grantor agrees to pay the Bank,
upon receipt of the Bank’s invoice, all costs, expenses and attorneys’ fees
(including allocated costs for in-house legal services) incurred by the Bank in
the preparation and administration of this Agreement (including any amendments
hereto or instruments or agreements required hereunder).


 


(b)           The Grantor confirms and
acknowledges that, notwithstanding the occurrence of the Maturity Date or any
expiration or termination of the Credit Agreement and/or any other Loan
Document, Section 10.04 (Costs and Expenses) of the Credit
Agreement is and shall remain applicable to the rights and obligations of the
Grantor, the Administrative Agent and the Issuing Bank under and related to
this Agreement, and that such provision shall survive the Termination Date (as
defined below).


 


Section 16.             Termination.  This Agreement (other than those provisions
expressly stated to survive termination) shall terminate upon the expiration,
cancellation or termination and return to the Issuing Bank of all Letters of
Credit, the payment in full by the Grantor of all other Applicable Secured
Obligations and the expiration or termination of the Revolving Commitments (the
date upon which all of the foregoing shall have occurred, the “Termination
Date”).  The Administrative Agent may
also terminate or it may assign this Agreement upon at least 30 days’ prior
written notice to the Grantor, the Issuing Bank and the Bank; provided
that upon the appointment of a successor Administrative Agent, this Agreement
will be deemed assigned to such successor Administrative Agent without any
further action by any party and no such notice shall be required. The Bank may
terminate this Agreement upon at least 60 days’ prior written notice to the
Grantor, the Issuing Bank and the Administrative Agent. The Grantor may not
terminate this Agreement except with the written consent of the Administrative
Agent and the Issuing Bank and upon prior written notice to the Bank.


 


Section 17.             Representations and
Warranties.


 


(a)           Each party represents and
warrants to the other parties that (i) this Agreement constitutes its duly
authorized, legal, valid, binding and enforceable obligation; (ii) the
performance of its obligations under this Agreement and the consummation of the
transactions contemplated hereunder will not (A) constitute or result in a
breach of its organizational documents or the provisions of any material
contract to which it is a party or by which it is bound or (B) result in
the violation of any law, regulation, judgment, decree or governmental order
applicable to it; and (iii) all approvals and authorizations required to
permit the execution, delivery, performance, validity and consummation of this
Agreement and the transactions contemplated hereunder have been obtained.


 


(b)           The parties each agree that
it shall be deemed to make and renew each representation and warranty in this Section 17
on and as of each day on which the Grantor uses the services set forth in this
Agreement.


 


21

















 


Section 18.             Notices. Any written
notice or other written communication to be given under this Agreement shall be
addressed to each party at its address set forth on the signature page of
this Agreement or to such other address as a party may specify in writing. Such
notice shall be effective upon receipt.


 


Section 19.             No Other Relationship. Nothing
contained in this Agreement shall create any agency, fiduciary, joint venture
or partnership relationship between the Bank and the Grantor, the
Administrative Agent or the Issuing Bank.


 


Section 20.             Certain Releases.  The Administrative Agent agrees that, upon
request of the Grantor, it will release Cash Collateral on deposit in the
Blocked Accounts (a) in full, upon the Termination Date and (b) on
and after the date upon which the Borrowers have complied with their
obligations described in the definition of “Full Collateralization Date”, to
the extent that the aggregate amount of Cash Collateral on deposit in the
Blocked Accounts exceeds an amount equal to (i) 105% of the Letter of
Credit Exposure allocable to all Letters of Credit outstanding on the date of
such request minus (ii) the aggregate face amount of any substitute letter(s) of
credit provided by the Grantor to the Issuing Bank (at the direction of or with
the consent of the Administrative Agent) which names the Issuing Bank as
beneficiary and which is in full force and effect on the date of such request
(which letter of credit is in form and substance and from a financial
institution satisfactory to the Issuing Bank and which otherwise complies with Section 2.14(e)(ii) of
the Credit Agreement).  The
Administrative Agent may at any time on the Full Collateralization Date and on
any date thereafter, including without limitation in connection with the
closing of the Refinance Transaction, require that the Grantor provide to the
Issuing Bank a substitute letter of credit naming the Issuing Bank as
beneficiary, in form and substance and from a financial institution
satisfactory to the Issuing Bank, with a face amount equal to 105% of the
aggregate Letter of Credit Exposure allocable to all Letters of Credit
outstanding on such date.


 


Section 21.             Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


Section 22.             Miscellaneous.


 


(a)           This Agreement may be
waived, amended, supplemented or otherwise modified only by a writing signed by
the Grantor, the Administrative Agent, the Issuing Bank and the Bank; except
that the Bank’s charges are subject to change by the Bank upon 30 days’ prior
written notice to the Grantor.


 


(b)           This Agreement may be
executed in counterparts; all such counterparts shall constitute but one and
the same agreement.


 


(c)           This Agreement controls in
the event of any conflict between this Agreement and any other document or
written or oral statement. This Agreement supersedes all prior understandings,
writings, proposals, representations and 


 


22

















 


communications, oral or written, of any party
relating to the subject matter hereof. 
For the avoidance of doubt, notwithstanding anything to the contrary
herein or in any other Loan Document or agreement securing, evidencing or
relating to the Applicable Secured Obligations, the Administrative Agent’s
security interest in the Cash Collateral shall not terminate except in
accordance with Section 16 hereof, and this Agreement shall survive
notwithstanding the occurrence of the Maturity Date and/or any expiration or
termination of the Credit Agreement or any other Loan Document.


 


(d)           This Agreement shall be
interpreted in accordance with the laws of the State of New York without
reference to that state’s principles of conflicts of law, and that state shall
be the Bank’s jurisdiction for purposes of the Uniform Commercial Code with
respect to secured transactions relating to any Blocked Account or the Cash
Collateral.


 


(e)           The section headings used in
this Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.


 


Section 23.             Amendment and Restatement of
Existing Deposit Account Control Agreement.  The parties hereto agree that this Agreement
amends and restates the Existing Agreement in its entirety and is not a new or
substitute deposit account control agreement or novation of the Existing
Agreement.  Each of the Loan Documents
and any other agreement securing, evidencing or relating to the Applicable
Secured Obligations remains in full force and effect as executed by the parties
thereto unless expressly provided to the contrary herein, and nothing herein
shall act as a waiver of any of the Administrative Agent’s or any Applicable
Secured Party’s rights under any Loan Document or any other agreement securing,
evidencing or relating to the Applicable Secured Obligations, including the
waiver of any Default or Event of Default, if any, however denominated.


 


[Signature Pages Follow]


 


23
















 


Executed
as of the day and year first above written.


 


	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
  Name:

  	
  Barbara Paulsen

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Chung-Taek Oh

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for notices:

  
	
   

  	
   

  
	
   

  	
  Société
  Générale

  
	
   

  	
  1221
  Avenue of the Americas

  
	
   

  	
  New
  York, NY 10020

  
	
   

  	
  Attn:
  B. Paulsen

  
	
   

  	
  Fax:
  (212) 278-7953

  



 

















 


	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Barbara Paulsen

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Chung-Taek Oh

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for notices:

  
	
   

  	
   

  
	
   

  	
  Société
  Générale

  
	
   

  	
  1221
  Avenue of the Americas

  
	
   

  	
  New
  York, NY 10020

  
	
   

  	
  Attn:
  B. Paulsen

  
	
   

  	
  Fax:
  (212) 278-7953

  



 


2

















 


	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
  Name:

  	
  Barbara Paulsen

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Chung-Taek Oh

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address
  for notices:

  
	
   

  	
   

  
	
   

  	
  Société
  Générale

  
	
   

  	
  1221
  Avenue of the Americas

  
	
   

  	
  New
  York, NY 10020

  
	
   

  	
  Attn:
  B. Paulsen

  
	
   

  	
  Fax:
  (212) 278-7953

  



 


3

















 


	
   

  	
  MxENERGY
  INC., as Grantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Chaitu Parikh

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address
  for notices to any Grantor:

  
	
   

  	
   

  
	
   

  	
  MxEnergy
  Inc.

  
	
   

  	
  595
  Summer Street, Suite 300

  
	
   

  	
  Stamford,
  CT 06901

  
	
   

  	
  Attn:
  C. Parikh

  
	
   

  	
  Fax:
  (203) 975-9659

  



 


4

















 


Schedule I


 


Part A


 


	
  State/Entity

  	
   

  	
  Action

  	
   

  	
  Status

  
	
  FERC

  	
   

  	
  FERC
  FPA § 203 approval

  	
   

  	
  Complete

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rochester
  Gas and Electric Corporation

  	
   

  	
  Approval
  required under operating agreements

  	
   

  	
  Consent
  requested on July 8, 2009

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New
  York State Electric & Gas Corporation

  	
   

  	
  Approval
  required under operating agreements

  	
   

  	
  Consent
  requested on July 8, 2009

  



 


Part B


 


	
  State

  	
   

  	
  Action

  	
   

  	
  Status

  
	
  Georgia

  	
   

  	
  Borrowers
  to provide the Commission: (i) informal status updates until closing of
  the Senior Notes Exchange Offer and (ii) a notice within 30 days of the
  closing of the Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Michigan

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ohio

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New
  Jersey

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maryland

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Texas

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer
  and obtain amendment to REP certificate

  	
   

  	
  Filed
  on July 9, 2009

  



 

















 


Schedule I


(continued)


 


The
following regulatory commissions will be notified as a courtesy, as the
Borrowers have determined that such notifications are not required:


 


	
  State

  	
   

  	
  Action

  	
   

  	
  Status

  
	
  New
  York

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pennsylvania

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  British
  Columbia

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ontario

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Connecticut

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Florida

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Illinois

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kentucky

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Massachusetts

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Indiana

  	
   

  	
  Borrowers
  to notify Commission within 30 days of closing of Senior Notes Exchange Offer

  	
   

  	
   

  



 

















 


Annex I


 


Schedule 2.01 - Commitments and Pro Rata Shares of the Lenders


 


REVOLVING COMMITMENTS AND PRO RATA SHARES OF THE REVOLVING LENDERS


 


	
  Lender

  	
   

  	
  Revolving Commitment

  On the Sixth Amendment

  Effective Date

  	
   

  	
  Pro Rata Share

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Société Générale

  	
   

  	
  $

  	
  25,178,571.44

  	
   

  	
  26.7857143

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wachovia Bank, N.A.

  	
   

  	
  $

  	
  25,178,571.44

  	
   

  	
  26.7857143

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CoBank, ACB

  	
   

  	
  $

  	
  16,785,714.33

  	
   

  	
  17.8571429

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Allied Irish Banks p.l.c.

  	
   

  	
  $

  	
  8,392,857.12

  	
   

  	
  8.9285714

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  8,392,857.12

  	
   

  	
  8.9285714

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Morgan Stanley Bank

  	
   

  	
  $

  	
  6,714,285.67

  	
   

  	
  7.1428571

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RZB Finance LLC

  	
   

  	
  $

  	
  3,357,142.88

  	
   

  	
  3.5714286

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  $

  	
  94,000,000.00

  	
   

  	
  100.0000000

  	
  %

  



 

















 


Annex I


(continued)


 


BRIDGE LOANS AND PRO RATA SHARE OF THE BRIDGE LENDERS


 


	
  Lender

  	
   

  	
  Bridge Loans

  	
   

  	
  Bridge Pro Rata 

  Share

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Denham Commodity Partners
  Fund LP

  	
   

  	
  $

  	
  5,000,000.00

  	
   

  	
  92.5925926

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Jeffrey Mayer

  	
   

  	
  $

  	
  133,333.33

  	
   

  	
  2.4691357

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Chaitu Parikh

  	
   

  	
  $

  	
  133,333.34

  	
   

  	
  2.4691359

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Carole R. Artman-Hodge

  	
   

  	
  $

  	
  133,333.33

  	
   

  	
  2.4691357

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  $

  	
  5,400,000.00

  	
   

  	
  100.0000000

  	
  %