Exhibit 10.7


 


Execution Version


 


MXENERGY INC.


 


AMENDMENT NO. 2 TO
AMENDED AND RESTATED LOAN AGREEMENT AND

AMENDMENT NO. 1 TO AMENDED AND RESTATED SECURITY AGREEMENT


 


This AMENDMENT NO. 2 TO
AMENDED AND RESTATED LOAN AGREEMENT AND AMENDMENT NO. 1 TO AMENDED AND RESTATED
SECURITY AGREEMENT (the “Amendment”) is dated as of December 19, 2005
and entered into by and between MxEnergy Inc., a Delaware corporation (the “Company”),
and Sowood Commodity Partners Fund LP (the “Lender”). This Amendment
amends (i) the Amended and Restated Loan Agreement (as amended, amended and
restated, supplemented or otherwise modified, the “Loan Agreement”)
dated as of November 14, 2003 by and between the parties hereto and (ii) the Amended
and Restated Security Agreement (as amended, amended and restated, supplemented
or otherwise modified, the “Security Agreement”) dated as of November
14, 2003 by and between the parties hereto. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the Loan
Agreement or the Security Agreement, as applicable.


 


RECITALS


 


WHEREAS, the parties
hereto entered into the Loan Agreement, which provides for a loan facility to
the Company;


 


WHEREAS, the parties
hereto entered into the Security Agreement which secures the Company’s
obligations under the Loan Agreement; and


 


WHEREAS, the Company has
requested and the Banks have agreed to make certain amendments to the Loan
Agreement and the Security Agreement as set forth below;


 


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


 


1.                                       Amendments
to Loan Agreement.


 


(a)                                  Section
5.2 of the Loan Agreement is hereby amended by (i) deleting the word “and”
after clause (vii) of the definition of “Permitted Indebtedness” and (ii)
inserting the following after clause (vii) of the definition of “Permitted
Indebtedness”:


 

















 


“and
(viii) indebtedness permitted under Section 6.02 of the Credit Agreement dated
as of December 19, 2005 among the Company, MxEnergy Electric Inc., MxEnergy
Holdings Inc. and certain subsidiaries thereof, the lenders from time to time
party thereto and Société Générale, as administrative agent (the “SG Credit
Agreement”)”


 


(b)                                 Section
5.5 of the Loan Agreement is hereby amended by adding the words “and Distributions
permitted under Section 6.06 of the SG Credit Agreement as of the date of the
SG Credit Agreement (other than (i) subsection (b) thereof and (ii) with
respect to subsection (e) thereof, the inclusion of such subsection shall not
be deemed to supersede or amend the terms of any document or instrument
governing such Subordinated Indebtedness (as such term is defined in the SG
Credit Agreement))” immediately after the words “other than Lathi” in the parenthetical
in the first sentence thereof.


 


(c)                                  Section
5.7.1 of the Loan Agreement is hereby deleted in its entirety and the following
Section is inserted in lieu thereof:


 


“5.7.1      Annual Reports. MXE shall furnish
to Lathi as soon as available, and in any event within 120 days after the
end of each fiscal year, the balance sheet of MxEnergy Holdings Inc. (“Holdings”)
as of the end of such fiscal year, and the statements of income, changes in
shareholder equity and cash flows of Holdings for such fiscal year and
comparative figures for the immediately preceding fiscal year, all consistent
in scope and detail to the audited financial statements for Holdings’ fiscal
year ended June 30, 2005 previously provided to Lathi, and accompanied by: (i)
reports of independent certified public accountants of recognized national
standing reasonably satisfactory to Lathi containing no material qualification,
to the effect that they have audited the foregoing financial statements in
accordance with generally accepted auditing standards and that such financial
statements present fairly, in all material respects, the financial position of
Holdings at the dates thereof and the results of their operations for the
periods covered thereby in conformity with GAAP; and (ii) a certificate of the
chief financial officer of MXE to the effect that such officer has caused this
Agreement to be reviewed and has no knowledge of any Default, or if such
officer has such knowledge, specifying such Default and the nature thereof, and
what action MXE has taken, is taking or proposes to take with respect thereto.”


 

















 


2.                                       Amendment
to Security Agreement. Section 3.3 of the Security Agreement is hereby
amended by deleting clause (d) thereof in its entirety and inserting the
following clause (d) in lieu thereof:


 


“(d)
Liens securing indebtedness described in clauses (iii), (iv), (viii) and (ix)
of the definition of Permitted Indebtedness”


 


3.                                       Consent
to New Credit Agreement. The Lender hereby consents to the execution and
delivery by the Company of the Credit Agreement dated as of December 19, 2005
among the Company, MxEnergy Electric Inc., MxEnergy Holdings Inc. and certain
subsidiaries thereof, the lenders from time to time party thereto and Société
Générale, as administrative agent and the incurrence by the Company of its
obligations thereunder and under the documents executed in connection
therewith.


 


4.                                       Termination
of Term Loan Facility. The parties hereto agree that the Company shall no
longer have to ability to request or receive any Term Loans pursuant to Section
1.1.2 of the Loan Agreement.


 


5.                                       Legend
on Credit Documents. All of the Credit Documents shall be deemed to be
amended to add the following legend thereon:


 


“This
instrument and the rights and obligations evidenced hereby are and shall at all
times be and remain subordinated in right of payment to the extent and in the
manner set forth in that certain Subordination and Intercreditor Agreement
dated as of December 19, 2005 among (a) Société Générale, as Credit Agreement
Representative, (b) Virginia Power Energy Marketing, Inc., a Virginia
corporation, and each additional counterparty which becomes a party to such
Subordination and Intercreditor Agreement in compliance with Section 10.12
thereof, (c) Sowood Commodity Partners Fund LP, a Delaware limited partnership,
(d) MxEnergy Holdings Inc., a Delaware corporation, and (e) MxEnergy Inc., a
Delaware corporation, and MxEnergy Electric Inc., a Delaware corporation, and
each of the other Loan Parties (as defined therein) party thereto to the prior payment
in full of all Senior Obligations (as defined therein), as amended,
supplemented, or otherwise modified from time to time; and each holder of this
instrument, by its acceptance hereof, irrevocably agrees to be bound by the
provisions of such Subordination and Intercreditor Agreement.”


 

















 


6.                                       Effectiveness
of Amendments. This Amendment shall become effective on the date on which
the Company and the Lender have executed and delivered the same.


 


7.                                       Representations
and Warranties; No Default or Event of Default. On the date of
effectiveness of this Amendment, the Company shall be deemed to have certified
to the Lender that, after giving effect to the amendments contained herein that
become effective on such date (i) all of the representations and warranties
contained in the Loan Agreement are true and correct in all material respects on
and as of the date thereof with the same effect as if made on and as of such
date (except to the extent such representations and warranties expressly refer
to an earlier date, in which case they shall be true and correct as of such
earlier date and (ii) no Default or Event of Default exists as of such date.


 


8.                                       Miscellaneous.


 


(a)                                  This
Amendment modifies the Loan Agreement and the Security Agreement to the extent
set forth herein, is hereby incorporated by reference into the Loan Agreement and
Security Agreement and is made a part thereof. On and after the effective date,
each reference in the Loan Agreement or the Security Agreement to “this
Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring
to the Loan Agreement or Security Agreement, as applicable, and each reference
in the other Credit Documents to the “Loan Agreement”, “Security Agreement,” “thereunder”,
“thereof” or words of like import referring to the Loan Agreement or Security
Agreement shall mean and be a reference to the Loan Agreement or Security
Agreement as amended by this Amendment.


 


(b)                                 Except
as specifically amended by this Amendment, the Loan Agreement, the Security
Agreement and the other Credit Documents shall remain in full force and effect
and are hereby ratified and confirmed.


 


(c)                                  The
execution, delivery and performance of this Amendment shall not, except as
expressly provided herein, constitute a waiver of any provision of, or operate
as a waiver of any right, power or remedy of the Lender under, the Loan
Agreement, the Security Agreement or any of the other Credit Documents.


 


(d)                                 Section
and subsection headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any
other purpose or be given any substantive effect.


 


(e)                                  THIS
AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE 


 

















 


INTERNAL
LAWS OF THE STATE OF CONNECTICUT, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.


 


(f)                                    This
Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute one and the same instrument.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and delivered by
their respective officers thereunto duly authorized as of the date first
written above.


 


 


	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carole R.
  Artman-Hodge

  
	
   

  	
   

  	
  Name: Carole R.
  Artman-Hodge

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President, Chief Operating Officer & Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOWOOD COMMODITY PARTNERS
  LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Sowood Commodity
  Partners GP LP, its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Sowood GP LLC, its
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Megan Kelleher

  
	
   

  	
   

  	
  Name: Megan Kelleher

  
	
   

  	
   

  	
  Title: Member