Exhibit
10.6


 


Execution Copy


 


MXENERGY
INC.


 


AMENDED
AND RESTATED


LOAN
AGREEMENT


 


Amendment No. 1


 


This
Agreement, dated as of March 22, 2004
(this “Agreement”), is between Lathi LLC, a Delaware limited
liability company (“Lathi”), and MxEnergy Inc., a Delaware corporation (“MXE”).
The parties agree as follows:


 


1. Loan Agreement; Definitions.
This Agreement amends the Amended and Restated Loan Agreement dated as of November
14, 2003, as in effect on the date hereof prior to giving effect to this
Agreement (the “Loan Agreement”), between
Lathi and MXE. Terms defined in the Loan Agreement as amended hereby (the “Amended
Loan Agreement”) and not otherwise defined herein are used
with the meaning so defined.


 


2. Amendment of Loan Agreement.
Effective upon the date all the conditions set forth in Section 5 hereof are
satisfied (the “Amendment Date”), which
conditions must be satisfied no later than March 31, 2004 or this Agreement
shall terminate, the Loan Agreement is amended as follows:


 


2.1. Amendment
of Section 1.1. Section 1.1 of the Loan Agreement is amended
to read in its entirety as follows:


 


“1.1.        Loans.


 


1.1.1.       Revolving Loans. Subject to all
the terms and conditions of this Agreement and so long as no Default exists,
from time to time on and after the date hereof and prior to November 14, 2007,
Lathi will make loans to MXE (each, a “Revolving Loan”, and
collectively, the “Revolving Loans”) in such amounts as may be requested
by MXE in accordance with Section 1.2. The aggregate principal amount of Revolving
Loans outstanding under this Agreement at any one time shall not exceed
$12,000,000.


 


1.1.2.       Term Loan. Subject to all the
terms and conditions of this Agreement and so long as no Default exists, on one
or more occasions on and after March 22, 2004 and on or prior to March 21,
2005, Lathi will make loans to MXE (collectively, the “Term Loan”) in
such amounts as may be requested by MXE in accordance with Section 1.2. The
aggregate principal amount of all advances made by Lathi as part of the Term
Loan shall not exceed $9,000,000. The Term Loan and the Revolving Loans are
collectively referred to herein as the “Loans.”


 

















 


2.2. Amendment of
Section 1.2. Section 1.2 of the Loan Agreement is amended to read in its
entirety as follows:


 


“1.2.        Borrowing Requests. MXE may from
time to time request a loan pursuant to Section 1.1 by providing Lathi a
borrowing request in the form of Exhibit 1.2 (a “Borrowing Request”)
not later than noon on the business day prior to the requested date for
extension of such loan (each such date a “Funding Date”) specifying:  (a) the type of the requested loan, which
shall be a Revolving Loan or a Term Loan; (b) the amount of the requested loan,
which (i) shall, in the case of a Revolving Loan, be in an amount not less than
$100,000 and (ii) shall, in the case of a Term Loan, be in an amount not less
than $3,000,000; and (c) the requested Funding Date therefor, which shall be a
business day. Lathi will make such loan to MXE by wire transfer in accordance
with the instructions set forth on Exhibit 1.2. Each Borrowing Request shall be
accompanied by the documentation required pursuant to Section 4.2; provided,
that, with respect to the initial loan under this Agreement, it shall be a
further requirement that on or before the Funding Date thereof (the “Initial
Funding Date”), all of the conditions set forth in Section 4.1 shall have
been satisfied.”


 


2.3. Amendment of
Section 1.3. Section 1.3 of the Loan Agreement is amended to read in its
entirety as follows:


 


“1.3.        Notes. MXE’s obligations to pay
the Revolving Loans shall be evidenced by a grid note of MXE in the form of Exhibit
1.3 (the “Revolving Note”). MXE’s obligations to pay the Term Loan
shall be evidenced by a grid note of MXE in the form of Exhibit 1.3A
(the “Term Note”). The Revolving Note and the Term Note are collectively
referred to herein as the “Notes.”“


 


2.4. Amendment of
Section 1.4. Section 1.4 of the Loan Agreement is amended to read in its
entirety as follows:


 


“1.4.        Use of Proceeds. MXE will use the
proceeds of the Revolving Loans for its working capital and other general
corporate purposes occurring in the ordinary course of business. MXE will use
the proceeds of the Term Loan for (a) the acquisition of all the outstanding equity of Total Gas
& Electric, Inc., a Florida corporation (“TGE”), and its subsidiary Total Gas &
Electric (PA) Inc., a Florida corporation, (b) to meet credit requirements
associated with the TGE acquisition, or (c) with the prior written consent of
Lathi, for the acquisition of customer contracts in markets served by MXE or
TGE.”


 


2.5. Amendment of
Section 2. Section 2 of the Loan Agreement is amended to read in its
entirety as follows:


 


“2.           Interest.
Subject to the last sentence of this Section 2, the Revolving Loans shall
accrue and bear interest at a rate of 9% per annum, computed based on actual
number of days elapsed over a year of 365 days. Subject to the last sentence of
this Section 2, the Term Loan shall accrue and bear interest at a rate of 14%
per annum, computed based on actual number of days elapsed over a year of 365
days. Interest shall be payable quarterly, in arrears, on the last business day
of each March, June, September and 


 


2

















 


December, beginning on
the first such date after the Initial Funding Date. In addition, on any partial
or complete payment or prepayment of principal of the Loans, MXE shall pay the
accrued and unpaid interest on the portion of the Loans so paid or prepaid. Any
payment or prepayment on the Loans shall be deemed to be applied first to
interest and then to principal. To the full extent permitted by law, any
interest not paid when due shall bear interest commencing on the 2nd
business day after the due date thereof at the rate specified for Loans
hereunder; provided, that in the event that applicable law does not
permit the charging of interest on interest, or limits the extent of the same,
this sentence shall be deemed to impose such interest on interest solely to the
extent not violative of such applicable law. Upon the occurrence and during the
continuance of an Event of Default, (x) the outstanding principal amount of the
Revolving Loans (and any overdue interest as set forth above) shall bear
interest at a rate of 12% per annum, computed and payable as provided above,
(y) the outstanding principal amount of the Term Loan (and any overdue interest
as set forth above) shall bear interest at a rate of 15% per annum, computed
and payable as provided above, and (z) Lathi may require accrued interest to be
payable on demand or at regular intervals more frequent than quarterly.”


 


2.6. Amendment of
Section 3.1. Section 3.1 of the Loan Agreement is amended to read in its
entirety as follows:


 


“3.1.        Payment at Maturity. On the Revolving
Loan Maturity Date or any accelerated maturity of the Loans, MXE will pay to
Lathi an amount equal to the Revolving Loan Loans then due, together with all
accrued and unpaid interest with respect thereto. “Revolving Loan Maturity
Date” means May 14, 2010, or such later date as is approved by Lathi in its
sole discretion. On the Term Loan Maturity Date or any accelerated maturity of
the Loans, MXE will pay to Lathi an amount in cash equal to the Term Loan then
due, together with all accrued and unpaid interest with respect thereto. “Term
Loan Maturity Date” means the earlier of (a) March 22, 2006, or (b) one
year from the initial funding date of the Term Loan, or such later date as is
approved by Lathi in its sole discretion.”


 


2.7. Amendment of
Section 3.2. The last sentence of Section 3.2 of the Loan Agreement is amended
to read in its entirety as follows:


 


“The amounts of the
Revolving Loan prepaid pursuant to this Section 3.2 may be reborrowed from
time to time prior to the Revolving Loan Maturity Date in accordance with
Section 1.1, subject to the limits set forth therein. No portion of the
Term Loan prepaid pursuant to this Section 3.2 may be reborrowed.”


 


2.8. Amendment of
Section 3.3. The last sentence of Section 3.3 of the Loan Agreement is
amended to read in its entirety as follows:


 


“The amounts of the
Revolving Loan prepaid pursuant to this Section 3.3 may be reborrowed from
time to time prior to the Revolving Loan Maturity Date in accordance with
Section 1.1, subject to the limits set forth therein. No portion of the
Term Loan prepaid pursuant to this Section 3.3 may be reborrowed.”


 


3

















 


2.9. Addition of
Section 3.5. A new Section 3.5 is added to the Loan Agreement immediately
after Section 3.4 of the Loan Agreement to read in its entirety as follows:


 


“3.5.        Order of Application. Any
prepayment of the Loans pursuant to Sections 3.2 or 3.3 shall be applied as
directed by MXE to either the Revolving Loans or the Term Loan.”


 


2.10. Amendment of
Section 4.2.3. Section 4.2.3 of the Loan Agreement is amended to read in
its entirety as follows:


 


“4.2.3.     Commitment Not Exceeded. After
giving effect to any Revolving Loan, the aggregate principal amount of the
outstanding Revolving Loans shall not exceed $12,000,000. After giving effect
to any advance under the Term Loan, the aggregate principal amount of all
advances made by Lathi as part of the Term Loan shall not exceed $9,000,000.


 


2.11. Amendment of
Section 5.6. The last sentence of Section 5.6 of the Loan Agreement is
amended to read in its entirety as follows:


 


“Without the prior
written consent of Lathi, MXE will not own any interest in any subsidiaries
other than Infometer.com Inc., a Delaware corporation, OnlineChoice Inc., a
Delaware corporation, MxEnergy Electric Inc., a Delaware corporation, MxEnergy
(Canada) Ltd., a Canadian corporation, Total Gas & Electric, a Florida corporation, and Total Gas &
Electric (PA) Inc., a Pennsylvania corporation, all of which are wholly
owned subsidiaries of MXE; provided that MXE may increase its investment
in any of the foregoing subsidiaries with Lathi’s prior written consent, not to
be unreasonably withheld.”


 


2.12. Addition of
Section 5.10. A new Section 5.10 is added to the Loan Agreement immediately
after Section 5.9 of the Loan Agreement to read in its entirety as follows:


 


“5.10.      Issuance of Warrants. If, on the last
day of any calendar month commencing one (1) month after the date hereof, any
amount is outstanding under the Term Loan, then MXE shall issue to Lathi a warrant to purchase 15,000 shares of
MXE common stock at a per share exercise price equal to $15.00. If, on the Term
Loan Maturity Date, any amount is outstanding under the Term Loan, MXE shall
issue to Lathi a warrant to purchase a number of shares of MXE common stock equal
to the quotient of (a) the outstanding aggregate amount of principal of, and
accrued and unpaid interest on, the Term Loan divided by (b) 15, at a
per share exercise price equal to $15.00. Each warrant issued pursuant to this
Section 5.10 shall be in the form attached as Exhibit 5.10.”


 


2.13. Amendment of
Section 9. Section 9 of the Loan Agreement is amended by deleting the definitional
cross-references to the terms “Loan(s)”, 


 


4

















 


“Maturity Date” and “Notes” from the table therein and
by inserting the following definitional cross-references in alphabetical order in
such table: 


 


	
  “Loans

  	
   

  	
  Section 1.1.2

  
	
   

  	
   

  	
   

  
	
  Notes

  	
   

  	
  Section 1.3

  
	
   

  	
   

  	
   

  
	
  Revolving
  Loan(s)

  	
   

  	
  Section 1.1.1

  
	
   

  	
   

  	
   

  
	
  Revolving Loan
  Maturity Date

  	
   

  	
  Section 3.1.1

  
	
   

  	
   

  	
   

  
	
  Revolving Note

  	
   

  	
  Section 1.3

  
	
   

  	
   

  	
   

  
	
  Term Loan

  	
   

  	
  Section 1.1.2

  
	
   

  	
   

  	
   

  
	
  Term Note

  	
   

  	
  Section 1.3

  
	
   

  	
   

  	
   

  
	
  Term Loan
  Maturity Date

  	
   

  	
  Section 3.1.2”

  



 


2.14. Amendment of References
to “Note”. All references to the defined term “Note” in the Loan Agreement are
hereby amended to read “Notes”.


 


2.15. Amendment of
Exhibit 1.2. Exhibit 1.2 to the Loan Agreement is amended to read in its
entirety as set forth in Exhibit 1.2 hereto.


 


2.16. Addition of
Exhibit 1.3A. A new Exhibit 1.3A is added to the Loan Agreement immediately
after Exhibit 1.3 to the Loan Agreement to read in its entirety as set forth in
Exhibit 1.3A hereto.


 


2.17. Addition of
Exhibit 5.10. A new Exhibit 5.10 is added to the Loan Agreement immediately
after Exhibit 4.2.2 to the Loan Agreement to read in its entirety as set forth
in Exhibit 5.10 hereto.


 


3. Amendment of Security Agreement. The Security Agreement is
hereby amended as follows: all references to the defined term “Note” in the
Security Agreement are hereby amended to read “Notes”.


 


4. Representations and Warranties.
MXE represents and warrants as follows:


 


4.1. Legal Existence,
Organization. MXE is a corporation duly organized and validly existing and
in good standing under the laws of the State of Delaware, with all corporate
power and authority necessary to enter into and perform this Agreement and the
Amended Loan Agreement. MXE has taken all corporate action required to authorize
the execution, delivery and performance of this Agreement.


 


4.2. Enforceability.
MXE has duly authorized, executed and delivered this Agreement. Each of this
Agreement and the Amended Loan Agreement is the 


 


5

















 


legal, valid and binding obligation of MXE and is
enforceable against MXE in accordance with its respective terms (except to the
extent that enforcement may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium, or similar laws affecting creditors’
rights generally and by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies).


 


4.3. Noncontravention.
The execution, delivery, and performance by MXE of this Agreement and the
Amended Loan Agreement do not violate or conflict with any law applicable to
MXE, any provision of its charter documents, any order or judgment of any court
or other government agency applicable to it or any of its assets, or any
contractual restriction binding on or affecting it or any of its assets.


 


4.4. Consents. All
material governmental and other consents that are required to have been obtained
by MXE with respect to the execution of this Agreement and the performance of
this Agreement and the Amended Loan Agreement have been obtained and are in
full force and effect.


 


4.5. Defaults. Immediately
before and after giving effect to the amendments set forth in Section 2 hereof,
no Default will exist.


 


4.6. Incorporation of
Representations and Warranties. The representations and warranties set
forth in Section 6 of the Amended Loan Agreement are true and correct in all
material respects on and as of the date hereof with the same effect as if originally
made on and as of the date hereof.


 


5. Conditions. The
effectiveness of this Agreement shall be subject to the satisfaction of the
following conditions, which conditions must be satisfied no later than March 31, 2004 or this Agreement shall terminate:


 


5.1. Note. MXE shall
have duly authorized, executed and delivered to Lathi a Term Note.


 


5.2. Issuance of
Warrants. MXE shall have issued to Lathi a warrant to purchase 75,000
shares of MXE common stock at a per share exercise price equal to $15.00 in the
form attached as Exhibit 5.2 hereto.


 


5.3. Legal Opinion.
On the Amendment Date, Lathi shall have received from Paul,
Hastings, Janofsky & Walker LLP, counsel to MXE, their opinion with respect
to the transactions contemplated by this Agreement, which opinion shall be in
form and substance satisfactory to Lathi.


 


5.4. Officer’s
Certificate. The representations and warranties of MXE set forth or
incorporated by reference herein shall be true and correct in all material respects
on and as of the Amendment Date as if originally made on and as of the
Amendment Date; no Default shall have occurred on or prior to the Amendment
Date; and Lathi shall have received a certificate to these effects signed by an
officer in the event the Amendment Date occurs after the date hereof.


 


6

















 


5.5. Payment of Lathi’s
Legal Fees and Expenses. MXE shall have paid to Lathi the reasonable legal
fees and expenses of Lathi with respect to this Agreement and the transactions
contemplated hereby.


 


5.6. Proper
Proceedings. This Agreement, each other Credit Document and the
transactions contemplated hereby and thereby shall have been authorized by all
necessary proceedings of MXE. All necessary material consents, approvals and
authorizations of any governmental or administrative agency or any other person
with respect to any of the transactions contemplated hereby or by any other
Credit Document shall have been obtained and shall be in full force and effect.


 


6. Further Assurances. MXE
will, promptly upon the request of Lathi from time to time, execute,
acknowledge, deliver, file and record all such instruments and notices, and
take all such other action, as Lathi deems necessary or advisable to carry out
the intent and purposes of this Agreement.


 


7. General. The Amended Loan
Agreement and all of the Credit Documents are each confirmed as being in full
force and effect. This Agreement, the Amended Loan Agreement and the other
Credit Documents referred to herein or therein constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior and current understandings and agreements,
whether written or oral. Each of this Agreement and the Amended Loan Agreement
is a Credit Document and may be executed in any number of counterparts, which
together shall constitute one instrument, and shall bind and inure to the
benefit of the parties and their respective successors and assigns, including as
such successors and assigns all holders of any Credit Obligation. This
Agreement shall be governed by and construed in accordance with the laws (other
than the conflict of law rules) of the State of Connecticut.


 


[The remainder of this page is
intentionally blank]


 


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Each
of the undersigned has caused this Agreement to be executed and delivered by
its duly authorized officer as an agreement under seal as of the date first
above written.


 


	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R.
  Artman-Hodge

  
	
   

  	
   

  	
  Name: Carole R.
  Artman-Hodge

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President and

  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LATHI LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Harvard Management
  Company, Inc.,

  
	
   

  	
   

  	
  pursuant to delegated
  authority

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
   

  	
  Authorized Signatory

  



 


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