Exhibit 10.21


 


EXECUTION COPY


 


FIFTH AMENDMENT TO

MASTER TRANSACTION AGREEMENT


 


This Fifth
Amendment to Master Transaction Agreement (this “Amendment”), dated as
of September 30, 2008 (the “Amendment Date”), by and among MXenergy
Inc., a Delaware corporation (the “Counterparty”), MXenergy Holdings
Inc. 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 the Master Transaction Agreement, dated as of August 1, 2006
(as amended by (i) the First Amendment to Master Transaction Agreement
dated as of April 6, 2007, (ii) the Second Amendment to Master
Transaction Agreement dated as of December 17, 2007, (iii) the Third
Amendment to Master Transaction Agreement dated as of May 12, 2008, and (iv) the
Fourth Amendment to Master Transaction Agreement dated as of July 31,
2008, collectively, the “Agreement”), among the Counterparty, the
Guarantors and the Hedge Provider (unless otherwise expressly provided herein,
capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Agreement);


 


B.                                     The Counterparty and the Guarantors have
requested that the Hedge Provider amend the Agreement as hereinafter
provided; and


 


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


 


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


 


AGREEMENT


 


Section 1.                                            Amendments
to Agreement.  The Agreement is
hereby amended, effective as of the Amendment Date,  as follows:


 


(a)                                  Amendment
to Section 1.01.  The definition
of “Credit Agreement” in Section 1.01 of the Agreement is hereby amended
and restated, effective as of the Amendment Date, in its entirety to read as
follows:


 


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


 


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


 


“Section 6.01                          Credit
Agreement Negative and Financial Covenants. 
Take or fail to take any action which causes a violation of any of the
negative covenants or 


 

















 


financial covenants set forth in Article VI of the Credit
Agreement, each as in effect on the Closing Date (as defined in the Credit
Agreement), each such negative covenant and financial covenant, and all defined
terms set forth in the Credit Agreement and referenced therein in their
respective entireties (in each case as in effect on the Closing Date (as
defined in the Credit Agreement)) being hereby incorporated herein by reference
as if fully set forth herein (all such negative covenants, financial covenants
and related defined terms being collectively referred to herein as the “First
Lien Negative Covenants”).”


 


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


 


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)                                 a
fully executed copy of the Second Amended and Restated Credit Agreement, dated
as of September 30, 2008 (the “Credit Agreement”), duly executed
and delivered by Transaction Parties, the Administrative Agent and the Majority
Lenders;


 


(c)                                  a
complete revised Risk Management Policy of the Counterparty, in form and
substance satisfactory to the Hedge Provider in its sole discretion;


 


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


 


(e)                                  evidence
satisfactory to the Hedge Provider that the Counterparty has paid all accrued
and unpaid costs, expenses, fees and other amounts (including, without
limitation, Management Fees and attorneys’ fees) due and payable to the Hedge
Provider as of the Amendment Date pursuant to the Agreement or any other
Transaction Document.


 


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 the Amendment Effective Date:


 


(a)                                  all
representations and warranties of such Transaction Party contained in the 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); and


 


(b)                                 no
Specified Event has occurred and is continuing.


 


2

















 


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 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. 
This Amendment, the 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.


 


3

















 


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

  
	
   

  	
   

  	
  Name:

  	
  Gonzague
  Bataille

  
	
   

  	
   

  	
  Title:

  	
  Head of
  Commodities Market – Americas

  
						



 


Fifth Amendment to Master Transaction Agreement