Exhibit 10.8


 


Execution Version


 


MXENERGY INC.


 


AMENDMENT NO. 3 TO AMENDED AND RESTATED LOAN AGREEMENT AND

AMENDMENT NO. 2 TO AMENDED AND RESTATED SECURITY AGREEMENT


 


This
AMENDMENT NO. 3 TO AMENDED AND RESTATED LOAN AGREEMENT AND AMENDMENT NO. 2
TO AMENDED AND RESTATED SECURITY AGREEMENT (the “Amendment”) is dated as
of August 1, 2006 and entered into by and between MxEnergy Inc., a
Delaware corporation (“MXE”), 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,
pursuant to the Transfer Agreement dated July 1, 2004 by and between
Lathi, LLC, certain other parties, and Sowood Commodity Partners Fund LP and
the Consent to Transfer dated June 30, 2004 by and between Lathi, LLC and
MXE, Lathi, LLC transferred all of its rights and obligations in respect of MXE
to Sowood Commodity Partners Fund LP;


 


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


 


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


 


WHEREAS,
MXE 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)                                  All
references in all Credit Documents to “Lathi, LLC” are hereby amended to read “Sowood
Commodity Partners Fund LP” and the term “Sowood” shall refer to Sowood
Commodity Partners Fund LP.


 


(b)                                 The
first paragraph of Section 1.2 of the Loan Agreement is amended to read as
follows:


 


“Borrowing Requests. MXE may from time to time request a
Loan under Section 1.1 by providing to Sowood a borrowing request in the form of
Exhibit 1.2 (a “Borrowing Request”) not later than noon,
five business days prior to the requested date for extension of such Loan (each
such date a “Funding Date”) specifying (a) the amount of the
requested loan, which shall be in an amount not less than $100,000 and (b) the
requested Funding therefor, which shall be a business day.”


 


The remainder of Section 1.2 remains unchanged.


 


(c)                                  Section 5.2
of the Loan Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:


 


“Incurrence of
Indebtedness. MXE shall not without the prior consent of Sowood create,
incur, assume, or otherwise become or remain liable with respect to liabilities
of any kind other than Permitted Indebtedness. “Permitted Indebtedness”
shall mean (i) Dominion Indebtedness; (ii) indebtedness to Sowood
hereunder and under the Note; (iii) indebtedness secured under purchase
money security interests (including mortgages, conditional sales, capital
leases and other title retention or deferred purchase devices) so long as (x)
the lien is limited to the property whose acquisition was funded, or
refinanced, through the incurrence of such indebtedness; (y) such indebtedness
is limited in recourse to the applicable financed property or the amount of
such indebtedness does not exceed the lesser of (a) the purchase price or
construction cost of said property and (b) the fair market value of said
property; and (z) the indebtedness was incurred within 60 days after the
initial acquisition of the applicable property; (iv) liabilities incurred
in the ordinary course of business secured by carriers, warehouses, mechanics
and similar liens, so long as MXE is paying on a timely and current basis all
amounts due secured by such liens (other than items which are the subject of a
bona fide dispute and as to which appropriate reserves exist); (v) liabilities
represented by judgments and awards, so long as the amount of same are fully
insured and the insurer has acknowledged coverage; (vi) 


 

















 


trade payables for goods and services provided to MXE
in the ordinary course of business, which are being paid currently; (vii) liabilities
incurred under operating leases and contracts in the ordinary course of MXE’s
business as to which no default giving rise to acceleration or a notice of
acceleration has occurred; (viii) tax liabilities incurred and payable in
the ordinary course of business, as to which all material reports, filings and
returns have been timely made or filed (taking into account any extensions) and
as to which all material taxes have been paid when due (other than taxes which
are the subject of a bona fide dispute and for which appropriate reserves have
been established); and (ix) indebtedness permitted under Section 6.02
of the First Amended and Restated Credit Agreement among MXE, 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).”


 


(d)                                 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 subsection (b) thereof”
immediately after the words “other than Sowood” in the parenthetical in the
first sentence thereof.


 


2.                                       Amendments
to Security Agreement.


 


(a)                                  All
references to “Lathi, LLC” are hereby amended to read “Sowood Commodity
Partners Fund LP” .


 


(b)                                 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 permitted under Section 6.01 of the SG Credit Agreement
as of the date of the SG Credit Agreement”


 


3.                                       Consent
to New Credit Agreement. The Lender hereby consents to the execution and
delivery by MXE of the First Amended and Restated Credit Agreement dated as of August 1,
2006 among MXE, 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 MXE of its obligations
thereunder and under the documents executed in connection therewith.


 


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


 

















 


5.                                       Representations
and Warranties; No Default or Event of Default. On the date of effectiveness
of this Amendment, MXE 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.


 


6.                                       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.


 


 [REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]


 

















 


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 and Chief

  
	
   

  	
   

  	
           Operating
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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