Exhibit 10.1


 


SEVENTH AMENDMENT & WAIVER


 


This
Seventh Amendment & Waiver (this “Amendment”) dated as of August 14,
2009 (the “Seventh Amendment Effective Date”) is by and among MxEnergy
Inc., a Delaware corporation (“MxEnergy”), 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 (collectively, the “Guarantors”), the financial
institutions and other Persons whose signatures appear below as Lenders,
Société Générale, as Issuing Bank, and Société Générale, as Administrative
Agent.


 


PRELIMINARY STATEMENTS


 


A.            Reference is made to the Third
Amended and Restated Credit Agreement dated as of November 17, 2008 among
the Borrowers, the Guarantors, the lenders party thereto and the Administrative
Agent, as amended by the First Amendment dated as of March 11, 2009, the
Second Amendment & Waiver dated as of May 15, 2009, the Third
Amendment & Waiver dated as of May 29, 2009, the Fourth Amendment &
Waiver dated as of June 8, 2009, the Fifth Amendment dated as of June 15,
2009, and the Sixth Amendment, Waiver & Consent dated as of July 31,
2009 (as amended through the date hereof, the “Credit Agreement”).  Unless otherwise expressly provided herein,
capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement.


 


B.            Section 7.01(m) of the
Credit Agreement provides that a Trigger Event is an Event of Default.  It is a Trigger Event if on or prior to August 7,
2009, the Parent and MxEnergy fail to deliver (i) to the Administrative
Agent, a letter from the Refinance Party confirming to the effect that the
Refinance Party actively continues to negotiate definitive documentation in
good faith with the Parent and the Borrowers on the Refinance Transaction and
that the Refinance Party’s due diligence investigation of the Borrowers’
business has not identified any materially adverse matters in the judgment of
the Refinance Party, (ii) to Bracewell & Giuliani LLP, the
Commercial Term Sheet, (iii) to the Administrative Agent, a certificate
from an authorized officer of the Parent certifying that the Commercial Term
Sheet (y) evidences that any collateral to be provided to the Refinance
Party in connection with the Refinance Transaction shall specifically exclude
the LC Cash Collateral Account and the “Cash Collateral” (as defined in the
Amended DACA (as defined in the Sixth Amendment)) and (z) enables a
refinancing in full of the Obligations and permits MxEnergy to request the
issuance of letters of credit in a face amount sufficient to enable the
Borrowers to comply with Section 2.14(e)(ii), and (iv) to the
Administrative Agent, a written agreement among the Refinance Party, the Parent
and the Borrowers confirming that (x) such Commercial Term Sheet
represents the agreement of such Persons as to the matters contained therein, (y) no
other material matters in connection with the Senior Notes Exchange Offer or
the Refinance Transaction remain outstanding as between such Persons, and (z) such
Commercial Term Sheet is not inconsistent in any manner with the Equity &
Intercreditor Term Sheets ((i)-(iv) collectively, the “August 7
Milestone Requirements”).  As of the
date hereof, an Event of Default has occurred and is continuing under Section 7.01(m) of
the Credit Agreement due to the failure of the Parent and MxEnergy to comply
with the August 7 Milestone Requirements (the “Seventh Amendment
Default”).


 

















 


C.            The Borrowers have requested that the Lenders, the Issuing Bank and the
Administrative Agent amend the Credit Agreement as set forth in this
Amendment and waive the Seventh Amendment Default to the extent provided
herein.


 


D.            The Lenders party hereto, constituting all of the Lenders under
the Credit Agreement, the Issuing Bank and the Administrative Agent are willing
to amend the Credit Agreement and waive the Seventh Amendment Default 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 Credit Agreement.


 


(a)           Amendments
to Section 1.01.


 


(i)            The following new definitions are
hereby added in the appropriate alphabetical order to read as follows:


 


“Seventh
Amendment” means the Seventh Amendment & Waiver, dated as of August 14,
2009, to the Agreement, by and among the Borrowers, the Parent, the Guarantors,
the Lenders, the Issuing Bank and the Administrative Agent.


 


“Seventh
Amendment Effective Date” means the date upon which the Seventh Amendment
becomes effective in accordance with its terms.


 


(ii)           The definition of “Maturity Date” is
hereby amended in its entirety to read as follows:


 


“Maturity Date” means August 18,
2009; provided that, if on or prior to August 14, 2009 the
Administrative Agent has received (a) a fully executed copy of a letter
regarding the Refinance Transaction from the Refinance Party to MxEnergy and/or
the Parent which is in form and substance satisfactory to the Administrative
Agent and the Majority Lenders in their sole discretion, (b) effective
amendments to the Exchange Offering Memo and the Lock-Up Agreement, in each
case (i) containing terms substantially consistent with the Term Sheets
and other terms agreed to (pursuant to evidence reasonably satisfactory to the
Administrative Agent and the Majority Lenders) by the Parent, the Refinance
Party and the holders of the Senior Notes, (ii) extending the expiration
date of the Senior Notes Exchange Offer to no later than 12:00 midnight New
York time on August 29, 2009, (iii) identifying the Refinance Party
by name and (iv) in form and substance reasonably satisfactory to the
Administrative Agent and the Majority Lenders, and (c) evidence 


 

















 


satisfactory to the Administrative Agent and
the Majority Lenders in their sole discretion that all consents, approvals and
notices set forth on Part A of Schedule I to the Sixth Amendment
have been obtained or made on or prior to such date, then the Maturity Date
shall be extended to August 31, 2009.


 


Section 2.               Waiver.


 


(a)           The
Lenders hereby agree, subject to the terms and conditions of this Amendment, to
waive the Seventh Amendment Default.  The
foregoing waiver shall relate back to, and be deemed effective as of, the date
of the occurrence of the Seventh Amendment Default.


 


(b)           The
waiver by the Lenders described in this Section 2 is contingent
upon the satisfaction of the conditions precedent set forth below in this
Amendment and is limited to the Seventh Amendment Default.  Such waiver is limited to the extent
described herein and shall not be construed to be a consent to or a permanent
waiver of Section 7.01(m) of the Credit Agreement or any other
terms, provisions, covenants, warranties or agreements contained in the Credit
Agreement or in any of the other Loan Documents.  The Administrative Agent and the Lenders
reserve the right to exercise any rights and remedies available to them in
connection with any other present or future Defaults or Events of Default with
respect to the Credit Agreement or any other provision of any Loan Document.


 


Section 3.               Conditions
to Effectiveness.  This Amendment
shall be effective as of the Seventh Amendment Effective Date when the
Administrative Agent shall have received each of the following:


 


(a)           counterparts
of this Amendment, duly executed by each Loan Party and each Lender; and


 


(b)           a
duly executed amendment or waiver to the Master Transaction Agreement which
shall be effective and shall amend the Master Transaction Agreement or waive
the provisions thereof (i) to provide for an automatic extension of the
Borrowers’ ability to obtain hedging on an unmargined basis in accordance with
the terms of the Master Transaction Agreement through August 31, 2009 upon
the satisfaction of conditions substantially similar to those contained in the
proviso set forth in the definition of “Maturity Date”, as amended by this
Amendment, (ii) to waive any default thereunder with respect to any “Milestone”
to the extent the corresponding Trigger Event is waived hereunder, (iii) for
which no fees are paid to the Secured Counterparty in consideration, and (iv) which
shall otherwise be satisfactory to the Administrative Agent and the Majority
Lenders in their sole discretion.


 


Section 4.               Representations
and Warranties.  Each Loan Party
jointly and severally hereby represents and warrants that, as of the Seventh
Amendment Effective Date (after giving effect to this Amendment):


 


(a)           all
representations and warranties of such Loan Party contained in the Credit
Agreement, as amended hereby, and any other Loan Document are true and correct
in 


 

















 


all material respects with the same effect as if such representations
and warranties had been made on the Seventh Amendment Effective 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
Default has occurred and is continuing.


 


Section 5.               Consent
of Guarantors; Confirmation of Guarantees. 
Each Guarantor hereby consents to this Amendment and hereby confirms and
agrees that notwithstanding the effectiveness of this Amendment, the Guarantee
contained in Article VIII of the Credit Agreement is, and shall continue
to be, in full force and effect and is hereby ratified and confirmed in all
respects.


 


Section 6.               Release;
Acknowledgement of Debt.


 


(a)           As
a material part of the consideration for the Administrative Agent and the
Lenders entering into this Amendment, 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 Seventh
Amendment Effective Date, 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, whether absolute
or contingent, foreseen or unforeseen, and whether or not heretofore asserted,
which any Borrower or Guarantor may have or claim to have against any Lender
Party under, arising out of, in connection with, or in any way related to, this
Amendment, the Credit Agreement, as amended hereby, or any other Loan
Documents.  For the avoidance of doubt,
the provisions of this clause shall survive any termination of the Credit
Agreement, as amended hereby.


 


(b)           As
of 9 a.m. New York time on the Seventh Amendment Effective Date, (i) the
aggregate outstanding principal amount of (A) Revolving Advances is $0 and
(B) Bridge Loans is $5,400,000.00; and (ii) the aggregate undrawn
face amount of the Letters of Credit is 91,939,826.44.


 


Section 7.               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 8.               Entire
Agreement.  This Amendment, the
Credit Agreement and the other Loan 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.


 


Section 9.               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 10.             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 11.             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.


 


[Signature pages follow]


 

















 


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
Seventh Amendment Effective Date.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
     Chaitu
  Parikh

  
	
   

  	
  Title:

  	
     Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
     Chaitu
  Parikh

  
	
   

  	
  Title:

  	
     Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
     Chaitu
  Parikh

  
	
   

  	
  Title:

  	
     Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
  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.

  
	
   

  	
  INFOMETER.COM
  INC.

  
	
   

  	
  MXENERGY
  CAPITAL CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
     Chaitu
  Parikh

  
	
   

  	
  Title:

  	
     Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  SERVICES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/CHAITU
  PARIKH

  
	
   

  	
  Name:

  	
     Chaitu
  Parikh

  
	
   

  	
  Title:

  	
     Chief
  Financial Officer

  



 

















 


	
   

  	
  SOCIÉTÉ GÉNÉRALE, as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/EMANUEL
  CHESNEAU

  
	
   

  	
  Name:

  	
     Emanuel
  Chesneau

  
	
   

  	
  Title:

  	
     Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/CHUNG-TAEK
  OH

  
	
   

  	
  Name:

  	
     Chung-Taek
  Oh

  
	
   

  	
  Title:

  	
     Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ GÉNÉRALE, as
  Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/EMANUEL
  CHESNEAU

  
	
   

  	
  Name:

  	
     Emanuel
  Chesneau

  
	
   

  	
  Title:

  	
     Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/CHUNG-TAEK
  OH

  
	
   

  	
  Name:

  	
     Chung-Taek
  Oh

  
	
   

  	
  Title:

  	
     Vice
  President

  



 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/EMANUEL
  CHESNEAU

  
	
   

  	
  Name:

  	
     Emanuel
  Chesneau

  
	
   

  	
  Title:

  	
     Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/CHUNG-TAEK
  OH

  
	
   

  	
  Name:

  	
     Chung-Taek
  Oh

  
	
   

  	
  Title:

  	
     Vice
  President

  



 

















 


	
   

  	
  WACHOVIA BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/STEVEN
  MARKUNAS

  
	
   

  	
  Name:

  	
     Steven
  Markunas

  
	
   

  	
  Title:

  	
     Assistant
  Vice President

  



 

















 


	
   

  	
  CoBANK, ACB

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/DALE
  KEYES

  
	
   

  	
  Name:

  	
     Dale
  Keyes

  
	
   

  	
  Title:

  	
     Vice
  President

  



 






 












 


	
   

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/TODD
  WANNUCCI

  
	
  Name: 

  	
  Todd
  Wannucci

  
	
  Title: 

  	
  Managing
  Director

  
			



 

















 


	
   

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/DAVID
  MAIORELLA

  
	
  Name: 

  	
  David
  Maiorella

  
	
  Title: 

  	
  Senior Vice President

  
			



 

















 


	
   

  	
  ALLIED
  IRISH BANKS p.l.c.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ROBERT
  MOYLE

  
	
  Name: 

  	
  Robert
  Moyle

  
	
  Title: 

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
  By: 

  	
  /s/DAVID
  O’DRISCOLL

  
	
  Name: 

  	
  David
  O’Driscoll

  
	
  Title: 

  	
  Assistant
  Vice President

  
			



 

















 


	
  RZB FINANCE LLC

  
	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ASTRID
  WILKE

  	
   

  	
  By: 

  	
  /s/PEARL
  GEFFERS

  
	
  Name: 

  	
  Astrid
  Wilke

  	
   

  	
  Name: 

  	
  Pearl
  Geffers

  
	
  Title: 

  	
  Vice
  President

  	
   

  	
  Title: 

  	
  First
  Vice President

  



 

















 


	
   

  	
  DENHAM COMMODITY PARTNERS FUND LP

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  DENHAM COMMODITY PARTNERS GP

  
	
   

  	
   

  	
  LP, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  DENHAM
  GP LLC, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/PAUL
  WINTERS

  
	
   

  	
  Name: 
  

  	
  Paul
  Winters

  
	
   

  	
  Title: 
  

  	
  Authorized
  Signatory

  



 

















 


	
   

  	
  /s/JEFFREY
  MAYER

  
	
   

  	
  Jeffrey
  Mayer

  



 

















 


	
   

  	
  /s/CHAITU
  PARIKH

  
	
   

  	
  Chaitu
  Parikh

  



 

















 


	
   

  	
  /s/
  CAROLE R. ARTMAN-HODGE

  
	
   

  	
  Carole
  R. Artman-Hodge