Exhibit 10.1


 


WAIVER AGREEMENT AND AMENDMENT NO. 1


 


This Waiver Agreement and Amendment No. 1
dated as of November 7, 2008 (this “Waiver”) is executed in
connection with the Second Amended and Restated Credit Agreement dated as of September 30,
2008 (the “Credit Agreement”) among MxEnergy Inc., a Delaware
corporation (“MxEnergy”), and 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, the lenders party thereto and Société Générale, as the
Administrative Agent.  Unless otherwise
defined in this Waiver, each capitalized term used in this Waiver has the
meaning given to such term in the Credit Agreement.


 


INTRODUCTION


 


The Borrowers have requested that the Majority
Lenders waive certain provisions of the Credit Agreement to permit the issuance
of Letters of Credit to the beneficiaries listed on the attached Exhibit A
in an aggregate amount not to exceed $25,360,000, including a Letter of Credit in
favor of Atlanta Gas Light Company in the face amount of $20,570,400.


 


THEREFORE, in consideration of the premises
and the mutual agreements, representations and warranties set forth herein, and
for other good and valuable consideration, the parties hereby agree as follows:


 


Section 1.               Amendment.  The definition of “Applicable Margin” in the
Credit Agreement is amended to increase the Applicable Margin for Swing Line
Advances, Revolving Advances, and Letter of Credit Fees by 1.000% for the
period from the date of this Waiver until the Credit Agreement is amended as
contemplated in Section 2(b) below.


 


Section 2.               Waiver and
Certain Agreements.


 


(a)           The Majority Lenders
hereby (i) waive any provision of Section 2.14(a)(i) or Section 3.02(b) or
(c) of the Credit Agreement solely to permit the issuance of Letters of
Credit to the beneficiaries listed on the attached Exhibit A in an
aggregate face amount not to exceed $25,360,000, including a Letter of Credit in
favor of Atlanta Gas Light Company in the face amount of $20,570,400 and (ii) agree
that any such Letters of Credit shall not be treated as Letter of Credit
Exposure for purposes of Section 2.01(a) or 2.07(c)(i) or
included in the calculation of Borrowing Base Availability.


 


(b)           The Majority Lenders
and the Borrowers agree that an Event of Default shall occur if (i) the
Borrowers or the Administrative Agent have not received at least $10,000,000 in
gross cash proceeds from the Bridge Financing (as defined below) on terms
acceptable to the Administrative Agent and the Majority Lenders and (ii) the
Credit Agreement has not been amended to permit the Bridge Financing in a
manner satisfactory to the Administrative Agent and the Majority Lenders, in
each case on or before November 17, 2008.


 


(c)           The Majority Lenders,
the Borrowers, and the Swing Line Lender agree that (i) Swing Line
Advances are no longer available and (ii) no Revolving Advances will be 


 

















 


available for the period
from the date of this Waiver until the Credit Agreement is amended as
contemplated in Section 2(b) above.


 


(d)           The Borrowers agree
that they shall not request for the benefit of or provide to the Secured
Counterparty (i) any additional Letters of Credit or increases to existing
Letters of Credit or (ii) any cash collateral.


 


(e)           The Majority Lenders
hereby authorize the Administrative Agent, on behalf of and for the benefit of
the Secured Parties, to execute an amendment to the Intercreditor Agreement
that amends the definition of “Secured Counterparty Primary Collateral” in the
Intercreditor Agreement as described in Section 4(e) below.


 


(f)            The express amendment,
waiver and agreements set forth in this Waiver are limited to the extent
described herein.  This Waiver shall not
constitute a waiver or modification of any of the Lenders’ or the
Administrative Agents’ rights and remedies contained in the Loan Documents,
except as specifically set forth above, and the Lenders and the Administrative
Agent hereby reserve all of their rights and remedies pursuant to the Loan
Documents and applicable law.


 


(g)           Except as expressly set
forth herein, the Credit Agreement, each other Loan Document and each document
executed in connection therewith shall continue to be, and shall remain, in
full force and effect in accordance with the provisions thereof.  Except as expressly set forth herein, this
Waiver shall not be deemed to be an amendment or waiver of, or consent to any
departure from, any other term or condition of the Credit Agreement, any other
Loan Document or any document executed in connection therewith or to prejudice
any other right or rights which the Administrative Agent or any Lender may now
have or may have in the future under or in connection with the Credit
Agreement, any other Loan Document or any document executed in connection
therewith.  Except as explicitly set
forth herein, this Waiver does not create a course of conduct or an agreement
to fund Revolving Advances, issue or modify Letters of Credit or waive any
Default or Event of Default.


 


(h)           The Lenders reserve the
right to exercise any rights and remedies available to them in connection with
any other present or future defaults with respect to the Credit Agreement or
any other provision of any Loan Document.


 


(i)            Each reference in the
Credit Agreement to “this Agreement” and each reference in each of the Loan
Documents to the “Credit Agreement” shall be deemed to refer to such agreement
as modified by this Waiver.  This Waiver
constitutes a Loan Document and any breach of the Borrowers’ agreements under
this Waiver shall constitute an Event of Default.


 


Section 3.               Representations
and Warranties.  Each Loan Party jointly
and severally represents and warrants to the Lenders that (a) no Default
or Event of Default has occurred and is continuing (except to the extent waived
hereby) and (b) each of the representations and warranties of such Loan
Party in the Credit Agreement and the other Loan Documents are true and correct
on the date hereof in all material respects (except to the extent stated as of
a prior date only).


 


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Section 4.               Effectiveness.
 This Waiver shall become effective when:


 


(a)           the Administrative
Agent shall have received duly executed counterpart signature pages to
this Waiver from the Loan Parties and the Majority Lenders;


 


(b)           the Borrowers shall
have paid to each Lender executing this Waiver on or before November 7,
2008 a fee equal to 0.75% of such Lender’s Revolving Commitment;


 


(c)           the Administrative
Agent shall have received written agreements satisfactory to the Administrative
Agent from one or more of the holders of the Equity Interests in the Parent to
provide a combination of at least $10,000,000 in the aggregate in unsecured
loans and/or a non-voting, funded first, paid last tranche of the Revolving
Commitments (the “Bridge Financing”) to the Borrowers, which shall be
funded or consummated no later than November 17, 2008;


 


(d)           the Administrative
Agent shall have received written evidence that the Secured Counterparty has (i) deferred
all payments that would otherwise be due to it beginning November 5, 2008
through and including November 18, 2008 to no earlier than the earlier of (A) November 19,
2008 and (B) the date on which the amendment to the Credit Agreement
described in Section 2(b) above has become effective, (ii) agreed
to waive any existing breaches, events of default or termination events under
the Secured Counterparty Contracts and any related agreement it has with any
Loan Party, and (iii) agreed to not amend, supplement or otherwise modify
any Secured Counterparty Contract or related agreement to incorporate
covenants, events of default, termination events or other terms more
conservative or restrictive than those contained in the Loan Documents;


 


(e)           the Administrative
Agent shall have received written consent from the Secured Counterparty and
Sowood to an amendment to the Intercreditor Agreement to change all contracts
for the sale of electricity, natural gas or related products on a variable rate
basis between a Loan Party and any of its customers from Secured Counterparty
Primary Collateral to Credit Agreement Primary Collateral (it being understood that
such contracts shall not be included in the Borrowing Base in any way); and


 


(f)            the Borrower shall
have paid all invoiced, but unpaid expenses due under Section 10.04 of the
Credit Agreement.


 


Section 5.               Release;
Acknowledgement of Debt.


 


(a)           As a material part of
the consideration for the Administrative Agent and the Lenders entering into
this Waiver, 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, 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 date hereof, 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, 


 


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whether absolute or
contingent, foreseen or unforeseen, and whether or not heretofore asserted,
which the Borrower may have or claim to have against any Lender Party under,
arising out of, in connection with, or in any way related to, this Waiver or
any other Loan Documents.  For the
avoidance of doubt, the provisions of this clause shall survive any termination
of this Waiver.


 


(b)           As of November 6,
2008: (i) the aggregate outstanding principal amount of (A) Revolving
Advances is $0 and (B) Swing Line Advances is $0; and (ii) the
aggregate undrawn face amount of the Letters of Credit is $118,917,861.75.  Interest and fees have accrued on the
Revolving Advances and Letters of Credit as provided in the Credit Agreement.


 


Section 6.               Choice of Law.
This Waiver shall be governed by and construed and enforced in accordance with
the laws of the State of New York, without reference to the principles thereof
regarding conflicts of laws.


 


Section 7.               Counterparts.  This Waiver may be signed in any number of
counterparts, each of which when so executed shall be deemed to be an original and
all of which when taken together shall constitute one and the same agreement.  Transmission by facsimile or email of an
electronic copy of an executed counterpart of this Waiver shall be deemed to
constitute due and sufficient delivery of such counterpart.


 


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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed by their duly authorized officers as of the first day and year
written above.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Name: Chaitu Parikh

  
	
   

  	
  Title: Vice President and CFO

  
	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Name: Chaitu Parikh

  
	
   

  	
  Title: Vice President and CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Name: Chaitu Parikh

  
	
   

  	
  Title: Vice President and CFO

  
	
   

  	
   

  
	
   

  	
  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.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Name: Chaitu Parikh

  
	
   

  	
  Title: Vice President and CFO

  



 


[Signature page to Waiver]


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Barbara
  Paulsen

  
	
   

  	
  Name:
  Barbara Paulsen

  
	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/   Chung-Taek
  Oh

  
	
   

  	
  Name: Chung-Taek Oh

  
	
   

  	
  Title: Vice President

  



 


[Signature page to Waiver]


 

















 


	
   

  	
  WACHOVIA
  BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ John
  Puckhaber

  
	
   

  	
  Name: John
  Puckhaber

  
	
   

  	
  Title:
  Senior Vice President

  



 


[Signature page to Waiver]


 

















 


	
   

  	
  CoBANK, ACB

  
	
   

  	
   

  
	
   

  	
  /s/
        Dale Keyes

  
	
   

  	
  Name: Dale
  Keyes

  
	
   

  	
  Title: Vice
  President

  



 


[Signature page to Waiver]


 

















 


	
   

  	
  MORGAN
  STANLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
    Daniel Twenge

  
	
   

  	
  Name: Daniel
  Twenge

  
	
   

  	
  Title:
  Authorized Signatory

  



 


[Signature page to Waiver]


 

















 


	
   

  	
  BANK OF
  AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Ronald
  J. Parisi

  
	
   

  	
  Name: Ronald
  J. Parisi

  
	
   

  	
  Title:
  Senior Vice President

  



 


[Signature page to Waiver]


 

















 


	
   

  	
  ALLIED IRISH
  BANKS p.l.c.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
      Vaughn Buck

  
	
   

  	
  Name: Vaughn
  Buck

  
	
   

  	
  Title:
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Robert
  Moyle

  
	
   

  	
  Name: Robert
  Moyle

  
	
   

  	
  Title:
  Senior Vice President

  



 


[Signature page to Waiver]


 

















 


	
   

  	
  RZB
  FINANCIAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Astrid
  Wilke

  
	
   

  	
  Name: Astrid
  Wilke

  
	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
    Pearl Geffers

  
	
   

  	
  Name: Pearl
  Geffers

  
	
   

  	
  Title: First
  Vice President

  



 


[Signature page to Waiver]


 

















 


EXHIBIT A


 


Sonat Pipeline


 


Virginia Power Energy Marketing, Inc.


 


TCO Pipeline


 


Miscellaneous Gas Suppliers


 


Atlanta Gas Light Company