Exhibit 10.9


 


SECOND AMENDMENT & WAIVER


 


This Second Amendment &
Waiver (this “Amendment”) dated as of May 15, 2009 (the “Second
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”), and the financial
institutions and other Persons whose signatures appear below as Lenders.


 


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 (as so amended, 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 Borrowers
fail to deliver to the Administrative Agent and the Lenders, on or before May 15,
2009, an executed contract for a Liquidity Event, which contract shall not
contemplate any financing from any of the Revolving Lenders (excluding any
Revolving Lender that separately agrees to participate in any such financing of
a Liquidity Event) (a “Liquidity Event Contract”).  As of the date hereof, the Borrowers have
failed to deliver a Liquidity Event Contract to the Administrative Agent and
the Lenders (the “Trigger Event Requirement”).


 


C.            The Borrowers have requested that the Majority Lenders amend the
Credit Agreement and waive the Trigger Event Requirement through May 29,
2009, and that the Lenders of the Other Bridge Loans (the “Other Bridge Loan
Lenders”) consent to the amendment of Section 6.14(b) of the
Credit Agreement, as hereinafter provided.


 


D.            The Lenders party hereto, constituting the Majority Lenders
under the Credit Agreement, are willing to amend the Credit Agreement and waive
the Trigger Event Requirement, and the Other Bridge Loan Lenders are willing to
consent to the amendment of Section 6.14(b) of the Credit Agreement,
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)            Clauses (a) and (b) of the definition of “Applicable
Margin” are hereby amended in their entirety to read as follows:


 

















 


the applicable percentage rate per annum set
forth below:


 


	
  Revolving Advances

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eurodollar

  Advances

  	
   

  	
  Base Rate

  Advances

  	
   

  	
  Commitment Fees

  	
   

  	
  Letter of Credit Fees

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.000

  	
  %

  	
  3.000

  	
  %

  	
  0.500

  	
  %

  	
  3.750

  	
  %

  



 


(ii)           Paragraph (g) of the definition of “Excepted
Liens” is hereby amended in its entirety to read as follows:


 


(g) Liens on up to
$40,000,000.00 in the aggregate of cash and Cash Equivalents (i) pledged
or deposited by a Borrower or any of its Subsidiaries as collateral to the New
York Independent System Operator, New England Independent System Operator or an
LDC by a Borrower or any of its Subsidiaries related solely to physical
purchases of natural gas or electricity, in each case, in the ordinary course
of business, or (ii) used to make prepayments to counterparties under
contracts related solely to physical purchases of natural gas or electricity,
or pipeline and transportation costs, in each case, in the ordinary course of
business.


 


(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, and $115,000,000.00 on June 30, 2009.


 


(iv)          A new definition of “Bcf” is hereby added in the
appropriate alphabetical order to read as follows:


 


“Bcf”
means billion cubic feet.


 


(v)           A new definition of “Second Amendment Effective Date”
is hereby added in the appropriate alphabetical order to read as follows:


 


“Second
Amendment Effective Date” means May 15, 2009.


 


(b)           Amendment to Section 2.14.


 


(i)            Section 2.14(ii) of the Credit Agreement is
hereby amended in its entirety as follows:


 


2

















 


(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, 180 days after the Maturity
Date; provided that, any such Letter of Credit with a one-year tenor may
expressly provide that it is renewable at the option of the Issuing Bank for
additional one-year periods (which shall in no event extend beyond the 180th day after the Maturity Date) 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.


 


(c)           Amendment to Section 5.17. 
The proviso in Section 5.17 is hereby deleted in its entirety and
the “;” preceding such proviso is hereby replaced with a “.”.


 


(d)           Amendment to Article V.  Article V
is hereby amended by adding the following new Section 5.18 thereto:


 


Section 5.18.  Cash Collateral.  On or prior to the Second Amendment Effective
Date, the Borrowers shall deposit or cause to be deposited with the
Administrative Agent not less than $60,000,000 in cash, which cash the
Administrative Agent shall hold as Collateral until the earlier of (a) so
long as no Default has occurred and is continuing, June 1, 2009, and (b) termination
of this Agreement, repayment in full of all the Obligations, termination of all
outstanding Letters of Credit, and termination of all Revolving Commitments.


 


(e)           Amendment to Section 6.05.  
Section 6.05(j) of the Credit Agreement is hereby amended in
its entirety as follows:


 


(j) other Investments
(other than Acquisitions) not exceeding 
$1,000,000.00 in the aggregate in any fiscal year of the Parent.


 


(f)            Amendment to Section 6.14.  
Section 6.14(b) of the Credit Agreement is hereby amended by
inserting the following sentence at the end of such Section:


 


Notwithstanding the
foregoing, from and after the Second Amendment Effective Date and until the termination
of this Agreement, repayment in full of all the Obligations, termination of all
outstanding Letters of Credit, and termination of all Revolving Commitments, no
Loan Party shall pay any cash interest on the Other Bridge Loans.


 


(g)           Amendment to Section 6.15. 
The following clause is added to the end of Section 6.15:


 


or would limit the ability of any Loan party
to obtain hedges under the Master Transaction Agreement


 


(h)           Amendment to Article VI.  Article VI
is hereby amended by adding the following new Sections 6.27 and 6.28 thereto:


 


3

















 


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 during
the month of May 2009, (b) 5.1 Bcf on any day in the month of June 2009,
or (c) 5.9 Bcf on any day in the month of July 2009.


 


Section 6.28.          Marketing Expenses.  From and after the calendar week beginning May 16,
2009 and, so long as no Default has occurred and is continuing, to but
excluding the calendar week beginning June 1, 2009, permit the aggregate
marketing expenses of the Loan Parties to exceed $225,000.00 for any such
calendar week plus, for any calendar week beginning on or after May 23,
2009, the amount by which such aggregate marketing expenses from the previous
calendar week were less than $225,000.00.


 


(i)            Amendment to Section 7.01.  
Section 7.01 of the Credit Agreement is hereby amended by replacing
the “.” at the end thereof with a “;” and inserting the following thereafter:


 


(n)           Swap Contracts; Master
Transaction Agreement. 
There shall have been an early termination under any Swap Contract to
which any Loan Party is a party or the Master Transaction Agreement.


 


(j)            Amendment to Section 10.04. 
The first sentence of Section 10.04 is hereby amended by deleting
the proviso thereto and the “;” preceding such proviso is hereby replaced with
a “.”.


 


Section 2.               Waiver.


 


(a)           The Majority Lenders hereby agree,
subject to the terms and conditions of this Amendment, to waive the Trigger
Event Requirement, provided, that, the Borrowers deliver to the
Administrative Agent and the Lenders, on or before May 29, 2009, a
Liquidity Event Contract.


 


(b)           The waiver by the Majority Lenders
described in this Section 2 is contingent upon the satisfaction of
the conditions precedent set forth below in this Amendment and the proviso in
paragraph (a) above and is limited to the Trigger Event Requirement.  Such waiver is 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) 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.


 


4

















 


Section 3.               Conditions to Effectiveness. 
This Amendment shall be effective as of the Second Amendment Effective
Date when the Administrative Agent shall have received confirmation of each of
the following in form and substance satisfactory to the Administrative Agent:


 


(a)           counterparts of this Amendment, duly executed by each
Loan Party, the Majority Lenders and the Other Bridge Loan Lenders;


 


(b)           evidence that the Borrowers have paid (i) $75,000.00
to Goldin Inc. as a retainer for financial consultant services, (ii) $75,000.00
to Hughes Hubbard in respect of legal fees and expenses, (iii) $75,000.00
to Bracewell & Giuliani LLP in respect of legal fees and expenses, and
(iv) all other costs, accrued and unpaid fees and expenses to the extent
due and payable to the Lenders and the Administrative Agent as of the date
hereof pursuant to the Credit Agreement;


 


(c)           a duly executed amendment or waiver to
the Master Transaction Agreement, which amends the Master Transaction Agreement
or waives the provisions thereof to extend the date required for delivery of a
Liquidity Event Contract to May 29, 2009;


 


(d)           The Borrowers shall have complied with Section 5.18
of the Credit Agreement, as amended hereby.


 


Section 4.               Representations and Warranties.  Each Loan
Party jointly and severally hereby represents and warrants that, as of the
Second Amendment Effective Date:


 


(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 Second
Amendment Effective Date (it being understood and agreed that any
representation which by its terms is made as of a specified date shall be
required to be true and correct only as of such specified date); and


 


(b)           no Default has occurred and is
continuing.


 


Section 5.               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 6.               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, 


 


5

















 


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
Second 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
Second 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 $104,275,129.


 


Section 7.               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 8.               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 9.               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 10.             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 11.             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]


 


6

















 


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
Second Amendment Effective Date.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chaitu Parikh

  
	
   

  	
  Name:

  	
  Chaitu
  Parikh

  
	
   

  	
  Title:

  	
  Vice
  President & CFO

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chaitu Parikh

  
	
   

  	
  Name:

  	
  Chaitu
  Parikh

  
	
   

  	
  Title:

  	
  Vice
  President & CFO

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chaitu Parikh

  
	
   

  	
  Name:

  	
  Chaitu
  Parikh

  
	
   

  	
  Title:

  	
  Vice
  President & CFO

  
	
   

  	
   

  
	
   

  	
  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 & CFO

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  SERVICES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chaitu Parikh

  
	
   

  	
  Name:

  	
  Chaitu
  Parikh

  
	
   

  	
  Title:

  	
  Vice
  President & CFO

  



 


Second Amendment &
Waiver


 
















 


	
   

  	
  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

  



 


Second Amendment &
Waiver


 

















 


	
   

  	
  WACHOVIA BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven Markunas

  
	
   

  	
  Name:

  	
  Steven
  Markunas

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  



 


Second Amendment &
Waiver


 

















 


	
   

  	
  CoBANK, ACB

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dale Keyes

  
	
   

  	
  Name:

  	
  Dale
  Keyes

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Second Amendment &
Waiver


 

















 


	
   

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Melissa James

  
	
   

  	
  Name:

  	
  Melissa
  James

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Second Amendment &
Waiver


 

















 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Maiorella

  
	
   

  	
  Name:

  	
  David
  Maiorella

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


Second Amendment &
Waiver


 

















 


	
   

  	
  ALLIED IRISH BANKS p.l.c.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Moyle

  
	
   

  	
  Name:

  	
  Robert
  Moyle

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David O’Driscoll

  
	
   

  	
  Name:

  	
  David
  O’Driscoll

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  



 


Second Amendment &
Waiver


 
















 


	
   

  	
  RZB FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hermine Kirolos

  
	
   

  	
  Name:

  	
  Hermine
  Kirolos

  
	
   

  	
  Title:

  	
  Group
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Pearl Geffers

  
	
   

  	
  Name:

  	
  Pearl
  Geffers

  
	
   

  	
  Title:

  	
  First
  Vice President

  



 


Second Amendment &
Waiver


 

















 


The undersigned Other Bridge Loan Lenders hereby consent to Section 1(f) of
the foregoing Amendment this 15th day of May, 2009:


 


	
   

  	
  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
  Person

  



 


Second Amendment &
Waiver


 

















 


	
   

  	
  /s/
  Jeffrey Mayer

  
	
   

  	
  Jeffrey
  Mayer

  



 


Second Amendment to
Credit Agreement


 

















 


	
   

  	
  /s/
  Chaitu Parikh

  
	
   

  	
  Chaitu
  Parikh

  



 


Second Amendment to
Credit Agreement


 

















 


	
   

  	
  /s/
  Steven Murray

  
	
   

  	
  Steven
  Murray

  



 


Second Amendment to
Credit Agreement


 

















 


	
   

  	
  /s/
  Carole R. Artman-Hodge

  
	
   

  	
  Carole
  R. Artman-Hodge

  



 


Second Amendment to
Credit Agreement