**Exhibit 10.27**

 

**AMENDMENT NO. 2**

** **

This Amendment No. 2 dated as of November 7,2008 (this “Amendment”) is among (a) Société Générale, asAdministrative Agent (in such capacity, with its successors and assigns, the “CreditAgreement Representative”) for the Credit Agreement Secured Parties, (b) SociétéGénérale, as a Secured Counterparty (“Secured Counterparty”), (c) DenhamCommodity Partners Fund LP (formerly Sowood Commodity Partners Fund LP), aDelaware limited partnership (together with its successors and assigns, “Sowood”),and (d) MxEnergy Holdings Inc., a Delaware corporation, MxEnergy Inc., aDelaware corporation (“MxEnergy”), MxEnergy Electric Inc., a Delawarecorporation (“MxElectric”, and together with MxEnergy, the “Borrowers”),and certain of their respective subsidiaries party thereto (the “IntercreditorParties”).

 

**INTRODUCTION**

** **

A.                                   The Borrowers, the Parent,the other Loan Parties, the Credit Agreement Representative and certainfinancial institutions are parties to a Second Amended and Restated CreditAgreement dated as of September 30, 2008 (as amended, supplemented,restated, or otherwise modified from time to time, the “Restated CreditAgreement”) pursuant to which such financial institutions have agreed tomake loans and extend other financial accommodations to the Borrowers.

 

B.                                     MxEnergy, certain of theother Loan Parties, and the Secured Counterparty are parties to the MasterTransaction Agreement dated as of August 1, 2006, as amended through theSeventh Amendment to Master Transaction Agreement dated November 7, 2008(the “Seventh Amendment to Master Transaction Agreement”) pursuant towhich the Secured Counterparty, among other things, provides natural gashedging arrangements for MxEnergy (the original Master Transaction Agreement,as amended through the Seventh Amendment to Master Transaction Agreement and asfurther amended, supplemented, restated, or otherwise modified from time totime, the “Master Transaction Agreement”).

 

C.                                     The Borrowers haverequested, and, upon this Amendment becoming effective, the other IntercreditorParties have agreed, that certain provisions of the Subordination andIntercreditor Agreement dated as of December 19, 2005, as amended byAmendment No. 1 dated as of August 1, 2008 (the “IntercreditorAgreement”) among the Intercreditor Parties be amended in the mannerprovided for in this Amendment.

 

Therefore, the parties to this Amendmenthereby agree as follows:

 

Section 1.                                            Defined Terms. Except to the extent specifically provided otherwise herein, capitalizedterms not defined herein but defined in the Intercreditor Agreement and usedherein shall have the meanings given to such terms in the IntercreditorAgreement.

 

Section 2.                                            Amendment to Intercreditor Agreement. In Section 1 of the Intercreditor Agreement, the definition of “SecuredCounterparty Primary Collateral” is amended in its entirety to read as follows:

 

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“Secured Counterparty Primary Collateral” means, with respect toeach Secured Counterparty, all rights, whether now owned or hereafter acquired,and proceeds therefrom under (a) all contracts of the Borrower or any ofits Subsidiaries for the sale of electricity or gas or related products on afixed price basis to one of such Loan Party’s customers (i) for which suchSecured Counterparty provides (A) any of the electricity or gas or relatedproducts or (B) commodity price hedging or futures sales of commodities,and (ii) in which a Lien is granted or purported to be granted to suchSecured Counterparty as security for any Secured Counterparty Obligation owingto such Secured Counterparty, excluding, however, accounts (as defined in theUCC) with respect to such contracts, whether now owned or hereafter acquired,and all proceeds from such accounts and (b) all Collateral Accounts andCollateral Account Property.

 

Section 3.                                            Agreement.  The SecuredCounterparty and the Borrowers agree not to amend, supplement or otherwisemodify any Secured Counterparty Contract or related agreement after theexecution and delivery of the amendments effective on November 7, 2008 toincorporate covenants, events of default, termination events or other termsmore conservative or restrictive than those contained in the Credit AgreementDocuments, without the prior written consent of the Credit AgreementRepresentative.  For the avoidance of doubt, the Secured Counterpartyshall not be required to make any conforming amendments to any SecuredCounterparty Contract if the Credit Agreement Documents are modified or amendedafter such date and any such amendment or modification causes the SecuredCounterparty Contract or related agreement to be more conservative orrestrictive than the Credit Agreement Documents.

 

Section 4.                                            Conditions to Effectiveness. This Amendment shall become effective on the date (the “AmendmentEffective Date”) on which (a) all Intercreditor Parties shall haveexecuted and delivered this Amendment, and (b) the Secured Counterpartyhas received payment in full in immediately available funds of all SpecifiedPayments (as defined in the Seventh Amendment to Master Transaction Agreement)and all accrued interest thereon.

 

Section 5.                                            Miscellaneous.

 

(a)                                  Representation and Warranties. Each Intercreditor Party hereby represents and warrants to each otherIntercreditor Party, as of the Amendment Effective Date, that:

 

(i)                                     Corporate Power; Authorization;Enforceable Obligations.

 

(1)                                  Such Intercreditor Party has thecorporate power and authority, and the legal right, to execute, deliver, andperform its obligations under this Amendment, and has taken all necessary corporateor other organizational action to authorize the execution, delivery andperformance of this Amendment.

 

(2)                                  No consent or authorization of, approvalby, notice to, filing with or other act by or in respect of, any GovernmentalAuthority or any other Person is required in connection with the execution anddelivery 

 

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of this Amendmentor with the performance, validity or enforceability of this Amendment.

 

(3)                                  This Amendment has been duly executed anddelivered on behalf of such Intercreditor Party.

 

(4)                                  This Amendment constitutes a legal, validand binding obligation of such Intercreditor Party, enforceable against suchIntercreditor Party in accordance with its terms, except as affected bybankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium andother similar laws relating to or affecting the enforcement of creditors’rights generally, general equitable principles (whether considered in aproceeding in equity or at law) and an implied covenant of good faith and fairdealing.

 

(ii)                                  No Legal Bar. The execution, delivery and performance of this Amendment will notviolate any applicable law or contractual obligation of such IntercreditorParty and will not result in, or require, the creation or imposition of anyLien on any of its or their respective properties or revenues pursuant to anysuch applicable law or contractual obligation.

 

(b)                                 Costs and Expenses. The Borrowers agree to pay all of the out-of-pocket costs and reasonableexpenses incurred by the other Intercreditor Parties in connection with thisAmendment, any other documents prepared in connection herewith and thetransactions contemplated hereby, including, without limitation, the reasonablefees and disbursements of its counsel.

 

(c)                                  No Other Amendments; Confirmation. Except as expressly amended, modified and supplemented hereby, theprovisions of the Intercreditor Agreement are and shall remain in full forceand effect.

 

(d)                                 Governing Law. This Amendment and the rights and obligations of the parties heretoshall be governed by, and construed and interpreted in accordance with, thelaws of the State of New York, without regard to principles of conflicts oflaws thereof (other than Sections 5-1401 and 5-1402 of the New York GeneralObligations Law).

 

(e)                                  Counterparts. This Amendment may be executed by one or more of the IntercreditorParties on any number of separate counterparts, and all of said counterpartstaken together shall be deemed to constitute one and the same instrument.  This Amendment may be delivered by facsimiletransmission of the relevant signature pages hereof.

 

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INWITNESS WHEREOF, the parties hereto have caused this Amendment to be dulyexecuted and delivered by their respective proper and duly authorized officersas of the day and year first above written.

 
|   | SOCIÉTÉ  GÉNÉRALE, as Credit Agreement Representative for and on behalf of the Credit  Agreement Secured Parties |
|--------|--------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  | /s/  BARBARA PAULSEN |
|   | Name:                                                                                                                                | Barbara  Paulsen |
|   | Title:                                                                                                                               | Managing  Director |
|   |                                                                                                                                 |   |
|   |                                                                                                                                 |   |
|   | By:                                                                                                                                  | CHUNG-TAEK  OH |
|   | Name:                                                                                                                                | Chung-Taek  Oh |
|   | Title:                                                                                                                               | Vice  President |
|   |                                                                                                                                 |   |
|   |                                                                                                                                 |   |
|   | SOCIÉTÉ  GÉNÉRALE, as Secured Counterparty                                                                       |
|   |                                                                                                                                 |   |
|   |                                                                                                                                 |   |
|   | /s/ GONZAGUE BATAILLE                                                                                                                |
|   | Name:                                                                                                                                | Gonzague Bataille |
|   | Title:                                                                                                                               | Managing Director |

 

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|   | MXENERGY  INC.                              |
|--------|---------------------------------------------|
|   |                                        |
|   | By:                                    | /s/  CHAITU PARIKH |
|   | Name:                                  | Chaitu  Parikh |
|   | Title:                                 | VP  and CFO |
|   |                                        |   |
|   |                                        |   |
|   | MXENERGY  ELECTRIC INC.                     |
|   |                                        |   |
|   | By:                                    | /s/ CHAITU PARIKH |
|   | Name:                                  | Chaitu Parikh |
|   | Title:                                 | VP and CFO |
|   |                                        |   |
|   |                                        |   |
|   | MXENERGY HOLDINGS INC.                      |
|   |                                        |   |
|   | By:                                         | /s/ JEFFREY A. MAYER |
|   | Name:                                       | Jeffrey A. Mayer |
|   | Title:                                      | Chairman and CEO |
|   |                                        |   |
|   |                                        |   |
|   | ONLINE  CHOICE INC.                         |
|   | MXENERGY  GAS CAPITAL HOLDINGS CORP.        |
|   | MXENERGY ELECTRIC CAPITAL HOLDINGS CORP.    |
|   | MXENERGY GAS CAPITAL CORP.                  |
|   | MXENERGY ELECTRIC CAPITAL CORP.             |
|   | TOTAL  GAS & ELECTRIC INC.         |
|   | TOTAL  GAS & ELECTRICITY (PA) INC. |
|   | MXENERGY  CAPITAL HOLDINGS CORP.            |
|   | MXENERGY  CAPITAL CORP.                     |
|   | MXENERGY  SERVICES INC.                     |
|   | INFOMETER.COM  INC.                         |
|   |                                        |
|   |                                        |
|   | By:                                         | /s/ JEFFREY A. MAYER |
|   | Name:                                       | Jeffrey A. Mayer |
|   | Title:                                      | Chairman and CEO |

 

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|   | 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 |

 

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