Exhibit 10.2


 


NINTH AMENDMENT TO

MASTER TRANSACTION AGREEMENT


 


This Ninth
Amendment to the Master Transaction Agreement (this “Amendment”), dated
as of March 16, 2009 (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, (G) the Seventh Amendment to Master Transaction Agreement dated as
of November 7, 2008 and (H) the Eighth Amendment to Master
Transaction Agreement dated as of November 17, 2008 (the “Eighth
Amendment”) (the original Master Transaction Agreement, as amended through
the Eighth 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;


 


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, the ISDA Master Agreement or the
Credit 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 “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);


 


(iv)      May 15, 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


 


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


 


(b)                                 A
new Section 6.09 is added at the end of Article VI (“Negative
Covenants”) thereof to read as follows:


 


“Section 6.09
Minimum Cash Requirements.                                Permit the Counterparty
to have cash on hand, minus the aggregate amount of Revolving Advances and
Bridge Loans (as defined in the Credit agreement) outstanding at such time, to
be less than (i) $20,000,000.00 at any time on or after the Amendment Date
and (ii) $40,000,000.00 at any time on or after March 31, 2009.”


 


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;


 


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


 


(d)                                 a
copy of a fully executed amendment to the Credit Agreement, amending and
restating the definition of “Milestone” in terms identical to the definition
herein;


 


(e)                                  evidence
satisfactory to the Hedge Provider that the Counterparty has fulfilled its
obligations under Section 6.09 (Minimum Cash Requirement) of the Master
Transaction Agreement; and


 


(f)                                    a
copy of an irrevocable Standby Letter of Credit in favor of the Hedge Provider,
issued by the Issuing Bank for the account of the Counterparty in connection
with the ISDA Master Agreement and the Credit Support Annex, substantially in
the form attached in Annex A hereto and for an aggregate amount not exceeding
USD35,000,000 and with an expiration date no earlier than July 24, 2009.


 


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 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;


 


(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 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 Master Transaction Agreement and 


 


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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.  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 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.


 


Section 11.                                      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 12.                                      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.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Name: Chaitu Parikh

  
	
   

  	
  Title: Vice President and CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Name: Chaitu Parikh

  
	
   

  	
  Title: Vice President and CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HEDGE PROVIDER:

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Gonzague
  Bataille

  
	
   

  	
  Name:
  Gonzague Bataille

  
	
   

  	
  Title:
  Managing Director

  



 


Signature
Page to Ninth Amendment to Master Transaction Agreement


 

















 


ANNEX A


 


IRREVOCABLE STANDBY LETTER OF
CREDIT


 


DATE OF ISSUANCE:


 


[Address
of the Issuing Bank]


 


Re:  Credit No.           


 


We hereby establish our Irrevocable Standby Letter of Credit in your
favor for the account of MXENERGY INC. (the “Account Party”), for the aggregate
amount not exceeding thirty five million United States Dollars
($35,000,000.00), available to you at sight upon demand at our counters at 1221
Avenue of the Americas, New York, NY, on or before the expiration hereof
against presentation to us of one or more of the following statements or
documents, dated and signed by a representative of the beneficiary:


 


1.              “An Event of Default (as defined
in the ISDA Master Agreement dated as of 1 August 2006, between the
beneficiary and Account Party, as the same may have been amended (the “Master
Agreement”)) has occurred and is continuing with respect to Account Party under
the Master Agreement”, in which case a partial drawing will be permitted
hereunder or alternatively the full amount of this Letter of Credit may be
drawn by the Beneficiary; or


 


2.              “An Early Termination Date (as
defined in the Master Transaction Agreement dated as of 1 August 2006) has
occurred as a result of a Termination Event (as defined in the Master
Transaction Agreement) and Account Party has failed to make all payments due
and owing to beneficiary in accordance with the terms of the Master Transaction
Agreement.”, in which case a partial drawing will be permitted hereunder or
alternatively the full amount of this Letter of Credit may be drawn by the
Beneficiary; or


 


3.              “A past due invoice, marked “unpaid”,
issued by the Beneficiary to the Account Party, in connection with the ISDA
Master Agreement or with the Master Transaction Agreement.”, in which case a
partial drawing will be permitted hereunder or alternatively the full amount of
this Letter of Credit may be drawn by the Beneficiary or


 


4.              “A Letter of Credit Default (as
defined in the ISDA Credit Support Annex dated as of 1 August 2006) has
occurred.” In this particular instance the full amount of this Letter of Credit
may be drawn by the Beneficiary.


 


Partial drawings are permitted hereunder.


 


The amount which may be drawn by you under this Letter of Credit shall
be automatically reduced by the amount of any drawings paid through the Issuing
Bank referencing this Letter of Credit No.           .


 


This Letter of Credit shall expire on 24 July 2009.


 


We hereby agree with you that documents drawn under and in compliance
with the terms of this Letter of Credit shall be duly honored upon presentation
as specified.


 


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This Letter of Credit shall be governed by the Uniform Customs and
Practice for Documentary Credits, 1993 Revision, International Chamber of
Commerce Publication No. 600 (the “UCP”), except to the extent that the
terms hereof are inconsistent with the provisions of the UCP, including but not
limited to Articles 13(b) and 17 of the UCP, in which case the terms of
this Letter of Credit shall govern.


 


With respect to Article 13(b) of the UCP, the Issuing Bank
shall have a reasonable amount of time, not to exceed three (3) banking
days following the date of its receipt of documents from the beneficiary, to
examine the documents and determine whether to take up or refuse the documents
and to inform the beneficiary accordingly.


 


In the event of an Act of God, riot, civil commotion, insurrection, war
or any other cause beyond our control that interrupts our business
(collectively, an “Interruption Event”) and causes the place for presentation
of this Letter of Credit to be closed for business on the last day for
presentation, the expiry date of this Letter of Credit will be automatically
extended without amendment to a date thirty (30) calendar days after the place
for presentation reopens for business.


 


This Letter of Credit may not be amended, changed or modified without
the express written consent of the beneficiary, the Issuing Bank and the
Account Party.


 


	
   

  	
  [BANK SIGNATURE]

  



 


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