Exhibit 10.2


 


ELEVENTH AMENDMENT TO

MASTER TRANSACTION AGREEMENT


 


This
Eleventh Amendment to the Master Transaction Agreement (this “Amendment”),
dated as of May 29, 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 Societe Generale, 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, (H) the Eighth Amendment to Master Transaction Agreement dated as of
November 17, 2008, (I) the Ninth Amendment to Master Transaction
Agreement dated as of March 16, 2009 (the “Ninth Amendment”), and (J) the
Tenth Amendment to the Master Transaction Agreement dated as of May 15,
2009 (the original Master Transaction Agreement, as amended through the Tenth
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 tenns 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:


 


(a)        The fourth and fifth
paragraphs of the definition of “Milestone” are hereby amended and
restated in their entirety as follows:


 


(iv) June 8, 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) June 8, 2009, a Liquidity Event shall be consummated.


 


(b)      The
Master Transaction Agreement is hereby amended to provide that the Counterparty
hereby agrees to deliver to the Hedge Provider as soon as available (i) fully
executed term sheets pertaining to the Liquidity Event and (ii) copies of
all bondholder consents and agreements required under the Liquidity Event terms
and conditions.


 


(c)       Section 2.06(a) of
the Master Transaction Agreement is hereby amended (1) to change the limit
on Natural Gas Hedging Position Volumes in respect of all Natural Gas Hedging
Transactions from time to time in effect between the Hedge Provider and the
Counterparty (as determined by the Hedge Provider) to 12 Bcf (rather than 25
Bcf), and (2) to allow new Natural Gas Hedging Transactions to be entered
into after June 8, 2009 only if the Counterparty or any successor to the
existing Counterparty, at such date, is acceptable to the Hedge Provider in its
sole discretion.


 


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;


 


(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 Third Amendment and Waiver
amendment in regards to the May 29, 2009 Milestones.


 


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.  Release.  As a material part of the consideration for
the Hedge Provider to enter into this Amendment, each Transaction Party, on
behalf of itself and its officers, directors, equity holders, Affiliates,
successors and assigns, hereby releases and forever discharges the Hedge
Provider and their respective predecessors, officers, managers, directors,
shareholders, employees, agents, attorneys, representatives, subsidiaries, and
Affiliates (each a “Hedge Party”) from any and all claims, expenses,
costs, causes of actions or other losses or liabilities of any nature
whatsoever existing on the Eleventh 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 Transaction Party may have or
claim to have against any Hedge Party under, arising out of, in connection
with, or in any way related to, this Amendment or any Hedge Documents.  For the avoidance of doubt, the provisions of
this clause shall survive any termination of the Master Transaction Agreement,
as amended hereby.


 


Section 6.           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 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 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 he a Transaction Document in all respects and for all purposes.


 


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.


 


Section 12.         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 13.         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:

  	
  /s/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

  
	
   

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HEDGE PROVIDER:

  
	
   

  	
   

  
	
   

  	
  SOCIETE GENERALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/GONZAGUE
  BATAILLE

  
	
   

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  	
  Head
  of Commodity Markets

  
	
   

  	
   

  	
  The
  Americas