Exhibit 10.1


 


FIFTH AMENDMENT


 


This
Fifth Amendment (this “Amendment”) dated as of June 15, 2009 (the “Fifth
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, the Second Amendment & Waiver dated as of May 15, 2009, the
Third Amendment & Waiver dated as of May 29, 2009, and the Fourth
Amendment & Waiver dated as of June 8, 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.                                     The Borrowers have requested that the Majority
Lenders amend the Credit Agreement as set forth in this Amendment.


 


C.                                     The Lenders
party hereto, constituting the
Majority Lenders under the Credit Agreement, are willing to amend the Credit
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 Credit Agreement.


 


(a)                                  Amendments to Section 1.01.


 


(i)                                     A new definition of “Fifth Amendment Effective
Date” is hereby added in the appropriate alphabetical order to read as follows:


 


“Fifth
Amendment Effective Date” means June 15, 2009.


 


(ii)                                  The last sentence of the definition of “Revolving
Commitment” is hereby amended in its entirety to read as follows:


 


The initial aggregate amount of the Revolving
Commitments on the Closing Date is $244,600,000.00 and reduces to
$230,000,000.00 on the First Amendment Effective Date, $210,000,000.00 on March 31,
2009, $185,000,000.00 on April 30, 2009,


 

















 


$135,000,000.00 on the Second Amendment
Effective Date, and $115,000,000.00 on the Fifth Amendment Effective Date.


 


(iii)                               The definition of “Trigger Event” is
hereby amended in its entirety to read as follows:


 


“Trigger
Event” means the occurrence of any of the following:


 


(a)                      the Parent
fails on or before June 26, 2009 (i) to initiate the commencement of
an exchange offer (or other similar offer as contemplated by or defined in any
applicable Federal securities laws) to holders of the Senior Notes (the “Senior
Notes Exchange Offer”) or (ii) to enter into one or more exchange
agreements with holders of at least 70% of the outstanding principal amount of
the Senior Notes (collectively, the “Senior Notes Exchange Agreement”)
in either case on terms necessary to meet the conditions specified in the
financing proposal the Lenders have received from the Borrower;


 


(b)                                 in the case of
a Senior Notes Exchange Offer, the Parent fails to deliver on or before June 26,
2009 to the Administrative Agent and the Lenders evidence that holders of at
least 70% of the outstanding principal amount of the Senior Notes have agreed
to accept the Senior Notes Offer;


 


(c)                                  the Parent
fails to deliver to the Administrative Agent on or before July 8,2009 a
letter that is addressed to the Administrative Agent and the Lenders and from a
finance party acceptable to the Administrative Agent in its sole discretion
confirming to the effect that such finance party actively continues to conduct
due diligence and negotiate documentation in good faith with the Borrowers on a
refinancing of the Obligations and anticipates closing the refinancing on or
before July 31, 2009;


 


(d)                                 (i) the
Senior Notes Exchange Offer (A) expires on or before, or is extended to
expire after, July 27, 2009 without holders of a sufficient amount of the
Senior Notes to make the Senior Notes Offer effective having accepted the
Senior Notes Offer or (B) is terminated on or before July 27, 2009 or
(ii) any Senior Notes Exchange Agreement is terminated or expires or the
exchange thereunder is not consummated on or before July 27, 2009;


 


(e)                                  the Borrowers
fail to deliver to the Administrative Agent and the Lenders on or before July 17,
2009 a commitment letter providing for the refinancing in full of the
Obligations on or before July 31, 2009; or


 


(f)                                    the Parent or a
Borrower receives a notice of or becomes aware of a termination or abandonment
of a refinance party, or a significant change in structure that could
reasonably be expected to delay the closing to after July 31, 2009 of, the
refinancing in full of the Obligations contemplated as of the Fifth Amendment
Effective Date or the Parent, a Borrower or one of its Subsidiaries sends
notice of the termination or abandonment of such refinancing, in each case


 

















 


without having identified another acceptable
refinance party at the sole discretion of the Administrative Agent and the
Majority Lenders;


 


in the case of (a), (b), (c), and (e), on
terms and conditions satisfactory to the Administrative Agent and the Majority
Lenders in their sole discretion.


 


(b)                                 Amendment to Section 2.14. 
Clause (a)(i) of Section 2.14 is hereby amended in its
entirety to read as follows:


 


(i)                                     if such
issuance, increase, or extension (A) would cause the Letter of Credit
Exposure to exceed the lesser of (1) the aggregate Revolving Commitments
minus the sum of the aggregate outstanding principal amount of all Revolving
Advances and (2) the Borrowing Base minus the sum of the aggregate
outstanding principal amount of all Revolving Advances or (B) would be for
the benefit of counterparty providing natural gas related hedging to any
Borrower;


 


(c)                                  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 Fifth 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
$75,000,000 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 termination of this
Agreement, repayment in full of all the Obligations, termination of all
outstanding Letters of Credit, and termination of all Revolving Commitments.


 


(d)                                 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, 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.


 


(e)                                  Authorization to Distribute Third
Amendment Fee referenced under Section 3(d) of the Third Amendment &
Waiver dated as of May 29, 2009.  The Borrowers
hereby authorize the Administrative Agent to distribute it each Revolving
Lender its ratable share of the $150,000 fee paid on the Third Amendment
Effective Date and agrees that such fee is fully earned and nonrefundable as of
the Fifth Amendment Effective Date.


 


Section 2.                                            Conditions to Effectiveness. 
This Amendment shall be effective as of the Fifth 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 the Majority Lenders;


 


(b)                                 in immediately available funds for the
ratable benefit of each Revolving Lender based on its Revolving Commitment a
refundable fee of $100,000, which the Administrative Agent shall hold in trust
for payment (i) to the Revolving Lenders on July 27, 2009 if the
Obligations have not been repaid in full before such date or (ii) to the
Borrower upon the payment in full of the Obligations before July 27, 2009;
and


 


(c)                                  in immediately available funds an amount
necessary for the Borrowers to comply with Section 5.18 of the Credit
Agreement, as amended hereby


 


Section 3.                                            Representations and Warranties. 
Each Loan Party jointly and severally hereby represents and warrants
that, as of the Fifth 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 Fifth
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 4.                                            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 5.                                            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 Fifth 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
Fifth 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 $98,183,237.86.


 


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. 
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 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.


 


[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
Fifth 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/CHUNG-TAEK OH

  
	
   

  	
  Name:
  

  	
  Chung-Taek
  Oh

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/BARBARA
  PAULSEN

  
	
   

  	
  Name:
  

  	
  Barbara
  Paulsen

  
	
   

  	
  Title:
  

  	
  Managing
  Director

  



 

















 


	
   

  	
  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, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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/MARK CONNELLY

  
	
   

  	
  Name:
  

  	
  Mark
  Connelly

  
	
   

  	
  Title:
  

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/AIDAN LANIGAN

  
	
   

  	
  Name:
  

  	
  Aidan
  Lanigan

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 

















 


	
   

  	
  RZB FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ASTRID WILKE

  
	
   

  	
  Name:
  

  	
  Astrid
  Wilke

  
	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/PEARL GEFFERS

  
	
   

  	
  Name:
  

  	
  Pearl
  Geffers

  
	
   

  	
  Title:
  

  	
  First
  Vice President