Exhibit 10.1


 


THIRD
AMENDMENT & WAIVER


 


This Third Amendment &
Waiver (this “Amendment”) dated as of May 29, 2009 (the “Third
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”), and the financial
institutions and other Persons whose signatures appear below as Lenders.


 


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 and the First Amendment &
Waiver dated as of May 15, 2009 (the “Second Amendment”)(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 it is an Event of Default (1) if the Borrowers fail to
deliver to the Administrative Agent and the Lenders, on or before May 15,
2009, an executed contract for a Liquidity Event, which contract shall 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) (a “Liquidity Event Contract”) and (2) if a
Liquidity Event shall not have been consummated on or before May 31,
2009.  Under the Second Amendment, the
Majority Lenders waived through May 29, 2009 the requirement to provide a
Liquidity Event Contract.  As of the date
hereof, the Borrowers have failed to deliver a Liquidity Event Contract to the
Administrative Agent and the Lenders or to consummate a Liquidity Event
(together, the “Trigger Event Requirement”).


 


C.            The Borrowers
have requested that the Majority Lenders amend the Credit Agreement as
set forth in this Amendment and waive the Trigger Event Requirement through June 8,
2009.


 


D.            The Lenders party hereto, constituting the Majority Lenders under the Credit Agreement, are
willing to amend the Credit Agreement and waive the Trigger Event Requirement
through June 8, 2009, each 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)        Amendment
to Section 1.01.  A new
definition of “Third Amendment Effective Date” is hereby added in the
appropriate alphabetical order to read as follows:


 


“Third Amendment Effective Date” means May 29,
2009.


 


(b)        Amendment
to Section 5.18.  Section 5.18
is hereby amended in its entirety to read as follows:


 


Section 5.18.  Cash Collateral.  On or prior to the Third Amendment Effective
Date, the Borrowers shall deposit or cause to be deposited with the
Administrative Agent or a Lender acceptable to the Administrative Agent not
less 


 

















 


than $65,000,000 in cash, which cash the
Administrative Agent shall hold as Collateral or shall be held at by such
Lender subject to a control agreement satisfactory to the Administrative Agent
and to a first perfected security interest in favor of the Administrative Agent
until the earlier of (a) so long as no Default has occurred and is
continuing, June 29, 2009, and (b) termination of this Agreement,
repayment in full of all the Obligations, termination of all outstanding
Letters of Credit, and termination of all Revolving Commitments.


 


(c)        Amendment
to Section 6.28.  Section 6.28
is hereby amended in its entirety to read as follows:


 


Section 6.28.  Marketing
Expenses.  From and after the
calendar week beginning May 16, 2009 and, so long as no Default has
occurred and is continuing, to but excluding the calendar week beginning June 29,
2009, permit the aggregate marketing expenses of the Loan Parties accrued for
such week to exceed $225,000.00 plus, for any calendar week beginning on
or after May 23, 2009, the amount by which such aggregate marketing
expenses accrued for the previous calendar week were less than $225,000.00.


 


Section 2.           Waiver.


 


(a)        The
Majority Lenders hereby agree, subject to the terms and conditions of this
Amendment, to waive the Trigger Event Requirement, provided, that, the
Borrowers deliver to the Administrative Agent and the Lenders, on or before June 8,
2009, a Liquidity Event Contract or the waiver contained herein shall terminate
and be of no effect as of the close of business on June 8, 2009.


 


(b)        The
waiver by the Majority Lenders described in this Section 2 is
contingent upon the satisfaction of the conditions precedent set forth below in
this Amendment and the proviso in paragraph (a) above and is limited to
the Trigger Event Requirement.  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
Third Amendment Effective Date when the Administrative Agent shall have
received confirmation of each of the following in form and substance
satisfactory to the Administrative Agent:


 


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


 


(b)        a duly
executed amendment or waiver to the Master Transaction Agreement in form and
substance satisfactory to the Majority Lenders, which amends the 


 

















 


Master Transaction Agreement or waives the provisions thereof (i) to
extend the date required for delivery of a Liquidity Event Contract to June 8,
2009, (ii) to extend the Borrower’s ability obtain hedging to June 8,
2009, and (iii) to reduce total hedging available to no less than 12 Bcf;


 


(c)        the
Borrowers shall have complied with Section 5.18 of the Credit Agreement,
as amended hereby; and


 


(d)        that
the Borrowers shall have paid in immediately available funds to the
Administrative Agent (i) for the benefit of each Revolving Lender that
executes this Amendment on or before the Third Amendment Effective Date a
non-refundable fee equal to 0.05% of each such Lender’s Revolving Commitment on
the Third Amendment Effective Date and (ii) for the ratable benefit of
each Revolving Lender based on its Revolving Commitment, a refundable fee of
$150,000, which the Administrative Agent shall hold in trust for payment (A) to
the Revolving Lenders on July 17, 2009 if the Obligations have not been
repaid in full before such date or (B) to the Borrower upon the payment in
full of the Obligations before July 17, 2009.


 


Section 4.           Representations
and Warranties.  Each Loan Party
jointly and severally hereby represents and warrants that, as of the Third
Amendment Effective Date:


 


(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 Third 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 Third 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 Third 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 $103,984,295.


 


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 Third Amendment Effective
Date.


 


	
   

  	
   

  	
  BORROWERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/CHAITU PARIKH

  
	
  Name:

  	
   

  	
  Chaitu Parikh

  
	
  Title:

  	
   

  	
  Vice President and
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/CHAITU PARIKH

  
	
  Name:

  	
   

  	
  Chaitu Parikh

  
	
  Title:

  	
   

  	
  Vice President and
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/CHAITU PARIKH

  
	
  Name:

  	
   

  	
  Chaitu Parikh

  
	
  Title:

  	
   

  	
  Vice President and
  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:

  	
   

  	
  Vice President and
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/CHAITU PARIKH

  
	
  Name:

  	
   

  	
  Chaitu Parikh

  
	
  Title:

  	
   

  	
  Vice President and
  Chief Financial Officer

  
					



 

















 


	
   

  	
   

  	
  LENDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SOCIÉTÉ GÉNÉRALE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/BARBARA
  PAULSEN

  
	
  Name:

  	
   

  	
  Barbara Paulsen

  
	
  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/MELISSA JAMES

  
	
  Name:

  	
   

  	
  Melissa James

  
	
  Title:

  	
   

  	
  Authorized
  Signatory

  
					



 

















 


	
   

  	
   

  	
  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/HERMINE
  KIROLOS

  	
  By:

  	
   

  	
  /s/PEARL GEFFERS

  
	
  Name:

  	
   

  	
  Hermine Kirolos

  	
  Name:

  	
   

  	
  Pearl Geffers

  
	
  Title:

  	
   

  	
  Group Vice
  President

  	
  Title:

  	
   

  	
  Group Vice
  President