**Exhibit 10.21**

 

**EXECUTION COPY**

 

**FIFTH AMENDMENT TOMASTER TRANSACTION AGREEMENT**

** **

This FifthAmendment to Master Transaction Agreement (this “Amendment”), dated asof September 30, 2008 (the “Amendment Date”), by and among MXenergyInc., a Delaware corporation (the “Counterparty”), MXenergy HoldingsInc. and certain Subsidiaries thereof, as guarantors (collectively, the “Guarantors”),and Société Générale, as hedge provider (the “Hedge Provider”).

 

**PRELIMINARY STATEMENTS**

 

A.                                   Referenceis made to the Master Transaction Agreement, dated as of August 1, 2006(as amended by (i) the First Amendment to Master Transaction Agreementdated as of April 6, 2007, (ii) the Second Amendment to MasterTransaction Agreement dated as of December 17, 2007, (iii) the ThirdAmendment to Master Transaction Agreement dated as of May 12, 2008, and (iv) theFourth Amendment to Master Transaction Agreement dated as of July 31,2008, collectively, the “Agreement”), among the Counterparty, theGuarantors and the Hedge Provider (unless otherwise expressly provided herein,capitalized terms used but not otherwise defined herein shall have the meaningsassigned to such terms in the Agreement);

 

B.                                     The Counterparty and the Guarantors haverequested that the Hedge Provider amend the Agreement as hereinafterprovided; and

 

C.                                     TheHedge Provider is willing to amend the Agreement on the terms and conditionsset forth herein.

 

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

 

**AGREEMENT**

** **

Section 1.                                            Amendmentsto Agreement.  The Agreement ishereby amended, effective as of the Amendment Date,  as follows:

 

(a)                                  Amendmentto Section 1.01.  The definitionof “Credit Agreement” in Section 1.01 of the Agreement is hereby amendedand restated, effective as of the Amendment Date, in its entirety to read asfollows:

 

““Credit Agreement” means the Second Amended and Restated CreditAgreement dated as of September 30, 2008 among the Borrowers, theGuarantors, the Lenders, and the Administrative Agent.”

 

(b)                                 Amendmentto Section 6.01.  Section 6.01of the Agreement is hereby amended and restated, effective as of the AmendmentDate, in its entirety to read as follows:

 

“Section 6.01                          CreditAgreement Negative and Financial Covenants. Take or fail to take any action which causes a violation of any of thenegative covenants or 

 

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financial covenants set forth in Article VI of the CreditAgreement, each as in effect on the Closing Date (as defined in the CreditAgreement), each such negative covenant and financial covenant, and all definedterms set forth in the Credit Agreement and referenced therein in theirrespective entireties (in each case as in effect on the Closing Date (asdefined in the Credit Agreement)) being hereby incorporated herein by referenceas if fully set forth herein (all such negative covenants, financial covenantsand related defined terms being collectively referred to herein as the “FirstLien Negative Covenants”).”

 

Section 2.                                            Consentto Risk Management Policy.  The HedgeProvider hereby consents, effective as of the Amendment Date, to the revisedRisk Management Policy dated September [    ], 2008and delivered by the Counterparty to the Hedge Provider before the AmendmentDate.

 

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

 

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

 

(b)                                 afully executed copy of the Second Amended and Restated Credit Agreement, datedas of September 30, 2008 (the “Credit Agreement”), duly executedand delivered by Transaction Parties, the Administrative Agent and the MajorityLenders;

 

(c)                                  acomplete revised Risk Management Policy of the Counterparty, in form andsubstance satisfactory to the Hedge Provider in its sole discretion;

 

(d)                                 evidencereasonably acceptable to the Hedge Provider that all conditions toeffectiveness of the Credit Agreement shall have been satisfied; and

 

(e)                                  evidencesatisfactory to the Hedge Provider that the Counterparty has paid all accruedand unpaid costs, expenses, fees and other amounts (including, withoutlimitation, Management Fees and attorneys’ fees) due and payable to the HedgeProvider as of the Amendment Date pursuant to the Agreement or any otherTransaction Document.

 

Section 4.                                            Representationsand Warranties.  Each TransactionParty hereby jointly and severally represents and warrants to the HedgeProvider that, as of the Amendment Date and the Amendment Effective Date:

 

(a)                                  allrepresentations and warranties of such Transaction Party contained in the Agreementand any other Transaction Document are true and correct in all materialrespects with the same effect as if such representations and warranties hadbeen made on the Amendment Date (it being understood and agreed that anyrepresentation which by its terms is made as of a specified date shall berequired to be true and correct only as of such specified date); and

 

(b)                                 noSpecified Event has occurred and is continuing.

 

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Section 5.                                            Consentof 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 Agreement and the terms and provisions ofeach 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.                                            GoverningLaw.  This Amendment shall be governedby, and construed and enforced in accordance with, the internal laws of theState of New York without regard to conflict of laws principles.

 

Section 7.                                            EntireAgreement; Transaction Document. This Amendment, the Agreement and the other Transaction Documentsconstitute the entire agreement and understanding among the parties andsupersede all prior agreements and understandings, whether written or oral,among the parties hereto concerning the transactions provided herein andtherein.  This Amendment is and shall bedeemed to be a Transaction Document in all respects and for all purposes.

 

Section 8.                                            Executionin Counterparts.  This Amendment maybe executed in any number of counterparts and by different parties hereto inseparate counterparts, each of which when so executed shall be deemed to be anoriginal and all of which taken together shall constitute one and the sameagreement.  Delivery of an executedcounterpart of a signature page to this Amendment by facsimile shall be aseffective as delivery of a manually executed counterpart of this Amendment.

 

Section 9.                                            Headings.  The headings set forth in this Amendment areand shall be without substantive meaning or content of any kind whatsoever andare not a part of the agreement between the parties hereto.

 

Section 10.                                      Severability.  In case any provision in or obligation underthis Amendment shall be invalid, illegal or unenforceable in any jurisdiction,the validity, legality and enforceability of the remaining provisions orobligations, or of such provision or obligation in any other jurisdiction,shall not in any way be affected or impaired thereby.

 

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IN WITNESSWHEREOF, the parties hereto have caused this Amendment to be duly executed anddelivered by their respective duly authorized officers as of the AmendmentDate.

 
|   | 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 |
|   |                                      | Name: | Gonzague  Bataille |
|   |                                      | Title: | Head of  Commodities Market – Americas |
|        |                                           |  |  |  |  |

 

*Fifth Amendment to Master Transaction Agreement*

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