Exhibit 10.25


 


EIGHTH AMENDMENT TO

MASTER TRANSACTION AGREEMENT


 


This Eighth
Amendment to Master Transaction Agreement (this “Amendment”), dated as
of November 17, 2008 (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, and (G) the Seventh Amendment to Master Transaction Agreement dated
as of November 7, 2008 (the “Seventh Amendment”) (the original
Master Transaction Agreement, as amended through the Seventh 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 to conform to similar provisions under the Credit
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 or in the ISDA Master 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 definition of “Liquidity
Event”  is hereby amended by deleting
the first clause therein and shall read in full as follows:  “(i) the indefeasible repayment and
termination in full of all the Obligations, or (ii) an equity contribution
into the Parent (as defined in the Credit Agreement) in an amount not less than
$75,000,000 in gross proceeds, in each case which shall be made on terms and
conditions satisfactory to the Administrative Agent, the Majority Lenders and
the Hedge Provider in their sole discretion.”


 


(b)           The
definition of “Milestone” is hereby amended and restated in its entirety
as follows:


 


(i)    December 15, 2008,
the Counterparty shall retain an investment bank to obtain a Liquidity Event
with respect to the Loan Parties (as defined in the Credit Agreement);


 


(ii)   December 31, 2008, the Counterparty shall deliver
to the Hedge Counterparty, the Administrative Agent and the Lenders a plan for
a proposed Liquidity Event acceptable to all of such parties that does not
contemplate any financing from any of the Revolving Lenders (as defined in the
Credit Agreement) (excluding any Revolving Lender that separately agrees to
participate in any such financing of a Liquidity Event);


 


(iii)  February 15,
2009, the Counterparty shall deliver to the Hedge Counterparty, the
Administrative Agent and the Lenders an executed, non-binding letter of intent
acceptable to all of such parties for a Liquidity Event 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);


 


(iii)  March 31, 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


 


(iv)  May 31, 2009, a Liquidity Event shall be consummated.


 


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; and


 


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


 


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Section 4.           Subordination of Collateral.  Section 4 of the Seventh Amendment
entitled “Release of Collateral” is replaced with the title “Subordination of
Collateral”.


 


Section 5.           Waiver and Release.  Without limiting any other term or provision
of this Amendment or any other Transaction Document, each Transaction Party hereby
voluntarily, knowingly, irrevocably, unconditionally, absolutely and
permanently waives, releases, dismisses, cancels, terminates and forever
discharges (collectively, the “Specified Releases”) the Hedge Provider,
each of its Affiliates and each of its and their respective agents, officers,
directors, managers, members, partners, employees, contractors,
representatives, advisors, attorneys and agents, and each of their respective
successors, assigns and representatives (each a “Released Party” and collectively,
the “Released Parties”), from any and all claims, inferences,
complaints, cross-complaints, filings, disputes, grievances, demands, duties,
actions, causes of action, defenses, counterclaims, offset, damages, costs,
expenses, liabilities, obligations, losses and similar items of any kind or
character whatsoever, in each case whether known or unknown, anticipated or
unanticipated, suspected or unsuspected, actual or contingent, express or
implied, or conditional, direct or indirect, at law or in equity, or otherwise,
irrespective of whether any of the foregoing arise out of contract, tort,
violation of law or regulations, or otherwise (collectively, the “Released
Items”):


 


(a)           with
respect to any Released Items arising out of, from or in connection with the
Master Transaction Agreement, any other Transaction Document, any Transaction,
or any related matter, the Specified Releases shall apply to the Released
Parties with respect to any and all Released Items now existing or arising or
originating at any time prior to the Amendment Effective Date; and


 


(b)           with respect to any
Released Items arising out of, from or in connection with any Specified Event
of Default and any Financial Covenant Default, including the negotiation,
preparation, execution, delivery or performance of this Amendment, the
Specified Releases shall apply to the Released Parties with respect to any and
all Released Items now existing or arising or originating at any time prior to
or following the date hereof.


 


Section 6.           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 7.           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 8.           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 9.           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 10.         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 11.         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 12.         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 13.         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 14.         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:

  	
   

  
	
   

  	
   

  	
  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:

  	
   

  
	
   

  	
   

  	
  Chaitu
  Parikh

  
	
   

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HEDGE
  PROVIDER:

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to Eighth Amendment to Master Transaction Agreement