Exhibit 10.30


 


TENTH
AMENDMENT TO

MASTER TRANSACTION AGREEMENT


 


This Tenth Amendment to the
Master Transaction Agreement (this “Amendment”), dated as of May 15,
2009 (the “Amendment Date”), by and among MXEnergy Inc., a Delaware
corporation (the “Counterparty”), MXEnergy Holdings Inc. (the “Parent”)
and certain Subsidiaries thereof, as guarantors (collectively, the “Guarantors”),
and Société Générale, as hedge provider (the “Hedge Provider”).


 


PRELIMINARY
STATEMENTS


 


A.            Reference is made to each of
(i) the Master Transaction Agreement, dated as of August 1, 2006 (as
amended by (A) the First Amendment to Master Transaction Agreement dated
as of April 6, 2007, (B) the Second Amendment to Master Transaction
Agreement dated as of December 17, 2007, (C) the Third Amendment to
Master Transaction Agreement dated as of May 12, 2008, (D) the Fourth
Amendment to Master Transaction Agreement dated as of July 31, 2008, (E) the
Fifth Amendment to Master Transaction Agreement dated as of September 30,
2008, (F) the Sixth Amendment to Master Transaction Agreement dated as of November 4,
2008, (G) the Seventh Amendment to Master Transaction Agreement dated as
of November 7, 2008,  (H) the
Eighth Amendment to Master Transaction Agreement dated as of November 17,
2008 and (I) the Ninth Amendment to Master Transaction Agreement dated as
of March 16, 2009  (the “Ninth
Amendment”) (the original Master Transaction Agreement, as amended through
the Ninth Amendment, being herein referred to as the “Master Transaction
Agreement”), among the Counterparty, the Guarantors and the Hedge Provider,
(ii) the ISDA Master Agreement (as defined in the Master Transaction
Agreement and amended to date), and (iii) the Credit Agreement (as defined
in the Master Transaction Agreement and amended to date);


 


B.            The Counterparty and the
Guarantors have requested that the Counterparty amend the Master Transaction
Agreement;


 


C.            The Hedge Provider is willing
to amend the Master Transaction Agreement on the terms and conditions set forth
herein; and


 


D.            The Hedge Provider and the
Counterparty have agreed to certain other matters relating to the foregoing as
set forth herein.


 


AGREEMENT


 


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


 


Section 1.               Definitions.  Unless otherwise specifically provided
herein, capitalized terms used but not defined herein shall have the meanings
specified in the Master Transaction Agreement, the ISDA Master Agreement or the
Credit Agreement (as applicable).


 


Section 2.               Amendments to Master
Transaction Agreement.  The
Master Transaction Agreement is hereby amended, effective as of the Amendment
Date, as follows:


 


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(a)           The fourth paragraph of the definition
of “Milestone” is hereby amended and restated in its entirety as follows:


 


(iv) May 29, 2009,
the Borrowers shall deliver to the Hedge Counterparty, the Administrative Agent
and the Lenders an executed contract for a Liquidity Event acceptable to all of
such parties that does 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); and


 


(b)   Section 2.06(a) of
the Master Transaction Agreement is hereby amended to allow new Natural Gas
Hedging Transactions to be entered into after May 29, 2009 only if the
Counterparty or any successor to the existing Counterparty, on such date, is
acceptable to the Hedge Provider in its sole discretion.


 


Section 3.               Conditions to
Effectiveness.  This
Amendment shall be effective on the date when the Hedge Provider shall have
received each of the following, in form and substance satisfactory to the Hedge
Provider (such date, the “Amendment Effective Date”):


 


(a)           counterparts of
this Amendment, duly executed and delivered by the Counterparty and the Guarantors;


 


(b)           evidence of corporate
authority satisfactory to the Hedge Provider, which may include an opinion of
outside counsel, regarding the authority of Counterparty and all Guarantors to
execute and deliver this Amendment and to fulfill their respective obligations
hereunder;


 


(c)           evidence satisfactory to the
Hedge Provider of any and all third party consents required in connection with
this Amendment; and


 


(d)           a copy of a fully executed waiver
to the Credit Agreement in regards to the May 15, 2009 Milestone;


 


Section 4.               Representations
and Warranties.  Each Transaction
Party hereby jointly and severally represents and warrants to the Hedge Provider
that, as of the Amendment Date and as of the Amendment Effective Date:


 


(a)           all
representations and warranties of such Transaction Party contained in the Master
Transaction Agreement and any other Transaction Document are true and correct
in all material respects with the same effect as if such representations and
warranties had been made on the Amendment 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);


 


(b)           no Specified
Event, and no Event of Default, Termination Event or Third Party Hedge
Agreement Specified Event on the part of any Transaction Party, has occurred
and is continuing;


 


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(c)           no
authorization, approval, consent, waiver or other action by, and no notice to
or filing with, any Governmental Authority or any other Person is required for
the due execution, delivery and performance by any Transaction Party of this
Amendment;


 


(d)           this Amendment
has been duly authorized by all necessary corporate or other organizational
action of each Transaction Party and has been duly executed and delivered by
each Transaction Party; and


 


(e)           this Amendment
and the Master Transaction Agreement (as amended by this Amendment) constitutes
a legal, valid and binding obligation of each Transaction Party, enforceable
against each Transaction Party in accordance with its terms.


 


Section 5.               Consent of
Guarantors; Confirmation of Guarantees and Transaction Documents.  Each Guarantor hereby consents to the
execution, delivery and performance of this Amendment and hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the Guarantee
contained in Article VIII of the Master Transaction Agreement and the
terms and provisions of each other Transaction Document are, and each of the
same shall continue to be, in full force and effect and are hereby ratified and
confirmed in all respects.


 


Section 6.               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 7.               Entire
Agreement; Transaction Document.  Except to the extent specifically modified
and amended by this Amendment, the Master Transaction Agreement shall remain in
full force and effect and is hereby ratified and confirmed.  This Amendment, the Master Transaction
Agreement and the other Transaction 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. 
This Amendment is and shall be deemed to be a Transaction Document in
all respects and for all purposes.


 


Section 8.               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 9.               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 10.             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.


 


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Section 11.             Legal Fees.  Counterparty and the Guarantors shall pay
promptly upon request by the Hedge Provider, all legal fees incurred by the
Hedge Provider in connection with this Amendment.


 


Section 12.             No Novation.  The parties intend that the execution and
deliver of this Amendment shall not constitute a novation of either Agreement
or any Transactions thereunder.


 


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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 Amendment Date.


 


	
   

  	
  COUNTERPARTY:

  
	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chaitu Parikh

  
	
   

  	
   

  	
  Chaitu Parikh

  
	
   

  	
   

  	
  Vice President and Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
  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.

  
	
   

  	
  MXENERGY CAPITAL CORP.

  
	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
  INFOMETER.COM INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chaitu Parikh

  
	
   

  	
   

  	
  Chaitu Parikh

  
	
   

  	
   

  	
  Vice President and Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HEDGE
  PROVIDER:

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gonzague Bataille

  
	
   

  	
   

  	
  Gonzague Bataille

  
	
   

  	
   

  	
  Managing Director, Head of
  Commodity Markets, The Americas

  



 


Signature Page to Tenth Amendment
to Master Transaction Agreement