**Exhibit 10.45**

 

**SIXTEENTHAMENDMENT TOMASTER TRANSACTION AGREEMENT**

 

This Sixteenth Amendment to the Master TransactionAgreement (this “Amendment”), dated as of September 3, 2009 (the “AmendmentDate”), by and among MXEnergy Inc., a Delaware corporation (the “Counterparty”),MXEnergy Holdings Inc. (the “Parent”) and certain Subsidiariesthereof, as guarantors (collectively, the “Guarantors”), and SociétéGénérale, as hedge provider (the “Hedge Provider”).

 

**PRELIMINARYSTATEMENTS**

 

Reference is made to each of (i) the Master Transaction Agreement,dated as of August 1, 2006, as amended by (A) the First Amendment toMaster Transaction Agreement dated as of April 6, 2007, (B) theSecond 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 ofJuly 31, 2008, (E) the Fifth Amendment to Master TransactionAgreement dated as of September 30, 2008, (F) the Sixth Amendment toMaster Transaction Agreement dated as of November 4, 2008, (G) theSeventh Amendment to Master Transaction Agreement dated as of November 7,2008, (H) the Eighth Amendment to Master Transaction Agreement dated as ofNovember 17, 2008, (I) the Ninth Amendment to Master TransactionAgreement dated as of March 16, 2009, (J) the Tenth Amendment to theMaster Transaction Agreement dated as of May 15, 2009, (K) theEleventh Amendment to the Master Transaction Agreement dated as of May 29,2009, (L) the Twelfth Amendment to the Master Transaction Agreement datedas of June 8, 2009,(M) the Thirteenth Amendment to the MasterTransaction Agreement dated as of July 31, 2009, (N) the FourteenthAmendment and Waiver to the Master Transaction Agreement dated as of August 14,2009, (O) the Fifteenth Amendment and Waiver to the Master TransactionAgreement dated as of August 31, 2009 and (P) this Amendment (theoriginal Master Transaction Agreement, as amended through this Amendment, beingherein referred to as the “Master Transaction  Agreement”), among the Counterparty, theGuarantors and the Hedge Provider, (ii) the ISDA Master Agreement (asdefined in the Master Transaction Agreement and amended to date, including bythe Eighth Amendment to the Schedule to the ISDA Master Agreement dated as ofthe date hereof), (iii) the Credit Agreement (as defined in the MasterTransaction Agreement and amended to date), and (iv) the IntercreditorAgreement (as defined in the Master Transaction Agreement and amended to date);

 

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

 

The Hedge Provider is willing to amend the Master Transaction Agreementon the terms and conditions set forth herein.

 

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**AGREEMENT**

 

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

 

Section 1. Definitions. Unless otherwisespecifically provided herein, capitalized terms used but not defined hereinshall have the meanings specified in the Master Transaction Agreement.

 

Section 2. Amendment to Master TransactionAgreement. The Master Transaction Agreement is hereby amended as follows,which amendment shall be effective as of the date on which the requirements setforth in Section 3 of this Amendment are satisfied (the “AmendmentEffective Date”): Section 7.01 of the Master Transaction Agreement ishereby amended by changing the reference to “September 3, 2009” in each ofclauses (q) and (r) thereof to “September 8, 2009”.

 

Section 3. Conditions to Effectiveness. ThisAmendment shall be effective on the date on which the Hedge Provider shall havereceived each of the following, in form and substance satisfactory to the HedgeProvider:

 

(a)           written evidence in form and substance satisfactory to theHedge Provider that any and all third party consents or waivers required inconnection with this Amendment have been obtained;

 

(b)           counterparts of this Amendment, duly executed anddelivered by the Counterparty and the Guarantors;

 

(c)           the tenth amendment to the Schedule to the ISDA MasterAgreement has been executed and delivered by the Hedge Provider and theCounterparty;

 

(d)           written evidence of corporate authority satisfactory tothe Hedge Provider, which may include an opinion of outside counsel, regardingthe authority of Counterparty and all Guarantors to execute and deliver thisAmendment and to fulfill their respective obligations hereunder;

 

Section 4. Representations and Warranties. Eachof the Counterparty, the Parent and the Guarantors (each a “TransactionParty” and, collectively, the “Transaction  Parties”) hereby jointly and severallyrepresents and warrants to the Hedge Provider that, as of the Amendment Dateand as of the Amendment Effective Date:

 

(a)           all representations and warranties of such TransactionParty contained in the Master Transaction Agreement and any other TransactionDocument are true and correct in all material respects with the same effect asif such representations and warranties had been made on the Amendment Date (itbeing understood and agreed that any representation which by its terms is madeas of a specified date shall be required to be true and correct only as of suchspecified date);

 

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(b)           except as expressed herein and after giving effect to thewaiver set forth herein, no Specified Event, and no Event of Default orTermination Event on the part of any Transaction Party, has occurred and iscontinuing;

 

(c)           the Counterparty has delivered a copy of this Amendment inits final form to the Administrative Agent and the Lenders under the CreditAgreement;

 

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

 

(e)           this Amendment has been duly authorized by all necessarycorporate or other organizational action of each Transaction Party and has beenduly executed and delivered by each Transaction Party; and

 

(f)            thisAmendment 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. Release. As a material partof the consideration for the Hedge Provider to enter into this Amendment, eachTransaction Party, on behalf of itself and its officers, directors, equityholders, Affiliates, successors and assigns, hereby releases and foreverdischarges the Hedge Provider and their respective predecessors, officers,managers, directors, shareholders, employees, agents, attorneys,representatives, subsidiaries, and Affiliates (each a “Hedge Party”) fromany and all claims, expenses, costs, causes of actions or other losses orliabilities of any nature whatsoever existing on the Amendment Date, including,without limitation, all claims, expenses, costs, causes of actions or otherlosses or liabilities for or in respect of contribution and indemnity, whetherarising at law or in equity, whether liability be direct or indirect,liquidated or unliquidated, whether absolute or contingent, foreseen orunforeseen, and whether or not heretofore asserted, which any Transaction Partymay have or claim to have against any Hedge Party under, arising out of, inconnection with, or in any way related to, this Amendment or any TransactionDocuments. For the avoidance of doubt, the provisions of this clause shallsurvive any termination of the Master Transaction Agreement, as amended hereby.

 

Section 6. Consent of Guarantors;Confirmation of Guarantees and Transaction Documents. Each Guarantor hereby consents to theexecution, delivery and performance of this Amendment and hereby confirms andagrees that, notwithstanding the effectiveness of this Amendment, the Guaranteecontained in Article VIII of the Master Transaction Agreement and theterms and provisions of each other Transaction Document are, and each of thesame shall continue to be, in full force and effect and arc hereby ratified andconfirmed in all respects.

 

Section 7. Governing Law. This Amendmentshall be governed by, and construed and enforced in accordance with, theinternal laws of the State of New York without regard to conflict of lawsprinciples.

 

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Section 8. Entire Agreement TransactionDocument. Except to the extent specifically modified and amended by thisAmendment, the Master Transaction Agreement shall remain in full force andeffect and is hereby ratified and confirmed. This Amendment, the MasterTransaction Agreement and the other Transaction Documents constitute the entireagreement and understanding among the parties and supersede all prioragreements and understandings, whether written or oral, among the partieshereto concerning the transactions provided herein and therein. This Amendmentis and shall be deemed to be a Transaction Document in all respects and for allpurposes.

 

Section 9. Execution in Counterparts. ThisAmendment may be executed in any number of counterparts and by differentparties hereto in separate counterparts, each of which when so executed shallbe deemed to be an original and all of which taken together shall constituteone and the same agreement. Delivery of an executed counterpart of a signature page tothis Amendment by facsimile shall be as effective as delivery of a manuallyexecuted counterpart of this Amendment.

 

Section 10. Headings. The headings setforth in this Amendment are and shall be without substantive meaning or contentof any kind whatsoever and are not a part of the agreement between the partieshereto.

 

Section 11. Severability. In case anyprovision in or obligation under this Amendment shall be invalid, illegal orunenforceable in any jurisdiction, the validity, legality and enforceability ofthe remaining provisions or obligations, or of such provision or obligation in anyother jurisdiction, shall not in any way be affected or impaired thereby.

 

Section 12. Payments; Reimbursement of LegalFees; No Novation Fees. Counterparty and the Guarantors shall pay promptlyupon request by the Hedge Provider all legal fees incurred by the HedgeProvider in connection with this Amendment. The Hedge Provider agrees that,except as otherwise set forth herein, no additional fees shall be due from theCounterparty or the Guarantors in respect of the novation of the HedgingFacility or any similar transaction related to Hedging Facility entered into bythe Counterparty other than amounts representing costs and expenses actuallyand reasonably incurred by the Hedge Provider and its outside counsel inconnection therewith and any amount payable in respect of the value of theHedging Facility.

 

Section 13. No Novation. The partiesintend that the execution and delivery of this Amendment shall not constitute anovation of either Master Transaction Agreement or any Hedging Transactionsthereunder.

 

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INWITNESS WHEREOF, the parties hereto have caused this Amendment to be dulyexecuted and delivered by their respective duly authorized officers as of theAmendment Date.

 
|   | BORROWERS:     |
|--------|----------------|
|   |           |
|   | MXENERGY  INC. |
|   |           |
|   | By:       | /s/  CHAITU PARIKH |
|   | Name:     | Chaitu  Parikh |
|   | Title:    | 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.         |
|   | INFOMETER.COM  INC.                      |
|   | MXENERGY  SERVICES INC                   |
|   | MXENERGY  CAPITAL CORP.                  |

 

 
|   | By:     | /s/  CHAITU PARIKH                          |
|--------|--------------|---------------------------------------------|
|   | Name:   | Chaitu  Parikh                              |
|   | Title:  | Vice  President and Chief Financial Officer |

 

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|   | HEDGE  PROVIDER:                        |
|--------|-----------------------------------------|
|   |                                    |
|   | SOCIÉTÉ GÉNÉRALE    |
|   |                                    |
|   |                                    |
|   | /s/ Gonzague Bataille                   |
|   | Name: Gonzague Bataille                 |
|   | Title: Managing Director                |
|   | Head of Commodity  Markets-The Americas |

 

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