Exhibit 10.2


 


FIRST AMENDED AND RESTATED PLEDGE AGREEMENT


 


This First
Amended and Restated Pledge Agreement dated as of August 1, 2006 (this “Pledge
Agreement”) is made by and among MxEnergy Inc., a Delaware corporation, and
MxEnergy Electric Inc., a Delaware corporation (each individually, a “Borrower”
and collectively, the “Borrowers”), MxEnergy Holdings Inc. (the “Parent”)
and the undersigned subsidiaries thereof (together with the Borrowers and the
Parent, each individually, a “Pledgor” and collectively, the “Pledgors”)
and Société Générale, as Administrative Agent (the “Administrative Agent”)
for the ratable benefit of itself and the other Secured Parties (as defined in
the Credit Agreement described below).


 


INTRODUCTION


 


A.            The Borrowers, each of the other
Pledgors, certain other Subsidiaries of the Parent, the lenders from time to
time party thereto (the “Lenders”) and the Administrative Agent have
entered into the First Amended and Restated Credit Agreement dated as of August 1, 2006
(as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”);


 


B.            Each of the Pledgors previously
executed the Pledge Agreement dated December 19, 2005 (the “Existing
Pledge Agreement”) in favor of the Administrative Agent for the ratable benefit
of the Secured Parties, and it is a condition to the making of the Revolving
Advances and the Swingline Advances and the issuance of the Letters of Credit
that the Existing Pledge Agreement be amended and restated in its entirety as
set forth herein;


 


NOW,
THEREFORE, each Pledgor hereby agrees with the Administrative Agent for its
benefit and the ratable benefit of the Secured Parties as follows:


 


Section 1.               Definitions.


 


(a)           All capitalized terms used herein but
not otherwise defined herein that are defined in the Credit Agreement shall
have the meaning assigned to such terms in the Credit Agreement. Any terms
defined in Articles 8 or 9 of the Uniform Commercial Code as in effect in the
State of New York as of the date hereof (“UCC”) and not otherwise
defined herein or in the Credit Agreement shall have the meanings assigned to
such terms in the UCC.


 


(b)           All meanings to defined terms, unless
otherwise indicated, are to be equally applicable to both the singular and
plural forms of the terms defined. Article, Section, Schedule, and Exhibit
references are to Articles and Sections of, and Schedules and Exhibits to, this
Pledge Agreement, unless otherwise specified. All references to instruments,
documents, contracts, and agreements are references to such instruments,
documents, contracts, and agreements as the same may be amended, supplemented,
and otherwise modified from time to time, unless otherwise specified. The words
“hereof”, “herein” and “hereunder” and words of similar import when used in
this Pledge


 

















 


Agreement shall refer to this Pledge Agreement as a
whole and not to any particular provision of this Pledge Agreement. As used
herein, the term “including” means “including, without limitation,”. Paragraph
headings have been inserted in this Pledge Agreement as a matter of convenience
for reference only and it is agreed that such paragraph headings are not a part
of this Pledge Agreement and shall not be used in the interpretation of any
provision of this Pledge Agreement.


 


Section 2.               Pledge.


 


(a)           Grant of Pledge. Each Pledgor
hereby pledges to the Administrative Agent, and grants to the Administrative
Agent, for its benefit and the ratable benefit of the Secured Parties, a
continuing lien on and security interest in the Pledged Collateral, as defined
in Section 2(b) below. This Pledge Agreement shall secure the prompt
performance and payment of all Obligations now or hereafter existing under the
Loan Documents or any Swap Contract to which a Lender or its Affiliate is a
party, including any extensions, modifications, substitutions, amendments and
renewals thereof (the “Secured Obligations”).


 


(b)           Pledged Collateral. “Pledged
Collateral” shall mean all of each Pledgor’s right, title, and interest in the
following, whether now owned or hereafter acquired by such Pledgor:


 


(i)            all
of the membership interests listed in the attached Schedule I issued to
such Pledgor (the “Membership Interests”), all such additional
membership interests of any issuer of such interests hereafter acquired by such
Pledgor, the certificates (if any) representing the Membership Interests and
all such additional membership interests, all of such Pledgor’s rights,
privileges, authority, and powers as a member of the issuer of such Membership
Interests under the applicable limited liability company operating agreement or
similar constitutive document of such issuer or under any applicable Legal
Requirement, and all rights to money or Property which such Pledgor now has or
hereafter acquires in respect of the Membership Interests, including, without
limitation, (A) any Proceeds from a sale by or on behalf of such Pledgor of any
of the Membership Interests, and (B) any distributions, dividends, cash,
instruments and other Property from time to time received or otherwise distributed
in respect of the Membership Interests, whether regular, special or made in
connection with the partial or total liquidation of the issuer and whether
attributable to profits, the return of any contribution or investment or
otherwise attributable to the Membership Interests or the ownership thereof
other than distributions received by such Pledgor in compliance with the Loan
Documents (collectively, the “Membership Interest distributions”);


 


(ii)           all
of the general and limited partnership interests listed in the attached Schedule
I issued to such Pledgor (the “Partnership Interests”), all such
additional limited or general partnership interests of any issuer of such
Partnership Interests hereafter acquired by such Pledgor, the certificates (if
any) representing the Partnership Interests and all such additional partnership
interests, all of such Pledgor’s rights, privileges, authority, and powers as a
limited or general partner of the issuer of such Partnership Interests under
the applicable partnership agreement or limited partnership agreement or
similar constitutive document of such issuer or under any applicable Legal
Requirement, and all rights to money or Property which such Pledgor now has or
hereafter acquires in


 


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respect
of the Partnership Interests, including, without limitation, (A) any Proceeds
from a sale by or on behalf of such Pledgor of any of the Partnership
Interests, and (B) any distributions, dividends, cash, instruments and other
Property from time to time received or otherwise distributed in respect of the
Partnership Interests, whether regular, special or made in connection with the
partial or total liquidation of the issuer and whether attributable to profits,
the return of any contribution or investment or otherwise attributable to the
Partnership Interests or the ownership thereof other than distributions
received by such Pledgor in compliance with the Loan Documents (collectively,
the “Partnership Interest distributions”);


 


(iii)          all
of the shares of stock listed in the attached Schedule I issued to such Pledgor
(the “Pledged Shares”), all such additional shares of stock of any
issuer of such Pledged Shares hereafter issued to such Pledgor, the
certificates representing the Pledged Shares and all such additional shares,
all of such Pledgor’s rights, privileges, authority, and powers as a
shareholder of the issuer of such Pledged Shares under the applicable articles
of incorporation, certificate of incorporation, bylaws or similar constitutive
document of such issuer or under any applicable Legal Requirements, and all
rights to money or Property which such Pledgor now has or hereafter acquires in
respect of the Pledged Shares, including, without limitation, (A) any Proceeds
from a sale by or on behalf of such Pledgor of any of the Pledged Shares, and
(B) any distributions, dividends, cash, instruments and other Property from
time to time received or otherwise distributed in respect of the Pledged
Shares, whether regular, special or made in connection with the partial or
total liquidation of the issuer and whether attributable to profits, the return
of any contribution or investment or otherwise attributable to the Pledged
Shares or the ownership thereof other than distributions received by such Pledgor
in compliance with the Loan Documents (collectively, the “Pledged Shares
distributions”);


 


(iv)          all
indebtedness listed in the attached Schedule I, owing to such Pledgor
from an Affiliate or Subsidiary of such Pledgor (collectively, the “Pledged
Debt”), all such additional indebtedness hereinafter owing to such Pledgor
from an Affiliate or Subsidiary of the Pledgor, any and all instruments
evidencing such indebtedness, including promissory notes, bonds, debentures and
other debt securities, and all interest, cash, instruments and other Property
from time to time received, receivable or otherwise distributed in respect of,
or in exchange for, any or all of the foregoing (collectively, the “Pledged
Debt distributions”);


 


(v)           all
of the equity interests in joint venture companies listed in the attached Schedule
I issued to such Pledgor (the “JV Interests”), all such additional
Equity Interests of any issuer of such JV Interests hereafter issued to such
Pledgor, the certificates representing the JV Interests and all such additional
Equity Interests, all of such Pledgor’s rights, privileges, authority, and
powers as an Equity Interest holder of such joint venture company under the
applicable constitutive documents of such joint venture company or under any
applicable


 


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Legal
Requirement, and all rights to money or Property of such Pledgor of any of the
JV Interests which such Pledgor now has or hereafter acquires with respect of
the JV Interests, including, without limitation, (A) any Proceeds from a sale
by or on behalf of such Pledgor of any of the JV Interests, and (B) any
distributions, dividends, cash, instruments and other Property from time to
time received or otherwise distributed in respect of the JV Interests, whether
regular, special or made in connection with the partial or total liquidation of
the issuer and whether attributable to profits, the return of any contribution
or investments or otherwise attributable to the JV Interests or the ownership
thereof other than distributions received by such Pledgor in compliance with
the Loan Documents (collectively the “JV Interest distributions”;
together with the Membership Interest distributions, the Partnership Interest
distributions, the Pledged Shares distributions, and the Pledged Debt
distributions, the “distributions”); and


 


(vi)          all
additions and accessions to, substitutions and replacements of, and all
products and proceeds from, the Pledged Collateral described in paragraphs (i),
(ii), (iii), (iv) and (v) of this Section 2(b).


 


Notwithstanding any of the other provisions set forth in this Section
2(b), this Agreement shall not constitute a grant of a security interest in any
property to the extent that such grant of a security interest is prohibited by
any Legal Requirement of a Governmental Authority, requires a consent not
obtained pursuant to such Legal Requirement or is prohibited by, or constitutes
a breach or default under or results in the termination of or requires any
consent not obtained under, any contract, license, agreement, instrument or
other document evidencing or giving rise to such property or, in the case of
any Membership Interests, Partnership Interests, Pledged Shares or JV
Interests, any applicable shareholder or similar agreement, except to the
extent that such Legal Requirement or the term in such contract, license,
agreement, instrument or other document or shareholder or similar agreement
providing for such prohibition, breach, default or termination or requiring such
consent is ineffective under applicable law.


 


(c)           Delivery of Pledged Collateral.
All certificates or instruments, if any, representing the Pledged Collateral
shall be delivered to the Administrative Agent and shall be in suitable form
for transfer by delivery, or shall be accompanied by duly executed instruments
of transfer or assignment in blank, all in form and substance reasonably
satisfactory to the Administrative Agent. After the occurrence and during the
continuance of an Event of Default, the Administrative Agent shall have the
right, upon prior written notice to the Borrowers, to transfer to or to
register in the name of the Administrative Agent or any of its nominees any of
the Pledged Collateral, subject to the rights specified in Section 2(d). In
addition, after the occurrence and during the continuance of an Event of
Default, the Administrative Agent shall have the right at any time to exchange
the certificates or instruments representing the Pledged Collateral for
certificates or instruments of smaller or larger denominations.


 


(d)           Rights Retained by Pledgor. Notwithstanding
the pledge in Section 2(a), so long as no Event of Default shall have occurred
and remain uncured:


 


(i)            or,
if an Event of Default shall have occurred and remain uncured, until such time
thereafter as such voting and other consensual rights have been


 


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terminated
pursuant to Section 5(b) hereof, each Pledgor shall be entitled to exercise any
voting and other consensual rights pertaining to the Pledged Collateral for any
purpose that does not violate the terms of this Pledge Agreement or the Credit
Agreement; provided, however, that such Pledgor shall not exercise or shall
refrain from exercising any such right if such action would have a materially
adverse effect on the value of the Pledged Collateral;


 


(ii)           except
as otherwise provided in the Credit Agreement, each Pledgor shall be entitled
to receive and retain any dividends and other distributions paid on or in
respect of the Pledged Collateral and the Proceeds of any sale of the Pledged
Collateral and all payments of principal and interest on loans and advances
made by such Pledgor to the issuer of the Pledged Collateral; and


 


(iii)          at
and after such time as voting and other consensual rights have been terminated
pursuant to Section 5 hereof, each Pledgor shall execute and deliver (or cause
to be executed and delivered) to the Administrative Agent all proxies and other
instruments as the Administrative Agent may reasonably request to (A) enable
the Administrative Agent to exercise the voting and other rights which such
Pledgor is entitled to exercise pursuant to subsection (i) of this Section
2(d), and (B) to receive the dividends or other distributions and Proceeds of
sale of the Pledged Collateral and payments of principal and interest which
such Pledgor is authorized to receive and retain pursuant to subsection (ii) of
this Section 2(d).


 


(e)           Limitation on
Amount of Secured Obligations. Notwithstanding anything contained herein to
the contrary, it is the intention of each Pledgor, the Administrative Agent and
the other Secured Parties that the amount of the Secured Obligations secured by
each Pledgor’s interests in any of its Property shall be in, but not in excess
of, the maximum amount permitted by fraudulent conveyance, fraudulent transfer
and other similar law, rule or regulation of any Governmental Authority
applicable to such Pledgor. Accordingly, notwithstanding anything to the
contrary contained in this Pledge Agreement or in any other agreement or
instrument executed in connection with the payment of any of the Secured
Obligations, the amount of the Secured Obligations secured by each Pledgor’s
interests in any of its Property pursuant to this Pledge Agreement shall be
limited to an aggregate amount equal to the largest amount that would not
render such Pledgor’s obligations hereunder or the liens and security interest
granted to the Administrative Agent hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provision of
any other applicable law.


 


Section 3.               Pledgor’s Representations and
Warranties. Each Pledgor represents and warrants to the Administrative
Agent and the Secured Parties, insofar as the same relate to such Pledgor’s
assets, actions, statements and business, as follows:


 


(a)           The Pledged Shares listed on the
attached Schedule I have been duly authorized and validly issued and is fully
paid and nonassessable.


 


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(b)           Each Pledgor is the legal and
beneficial owner of the Pledged Collateral indicated on Schedule I, free and
clear of any Lien or option except for the security interest created by this
Pledge Agreement and Permitted Liens except for restrictions on transfer under
applicable federal and state securities laws.


 


(c)           No authorization, authentication,
approval, or other action by, and no notice to or filing with, any Governmental
Authority or regulatory body is required either (i) for the pledge by such Pledgor
of the Pledged Collateral pursuant to this Pledge Agreement or for the
execution, delivery, or performance of this Pledge Agreement by such Pledgor
(except to the extent that financing statements are required under the UCC to
be filed in order to maintain a perfected security interest) or (ii) for the
exercise by the Administrative Agent or any Secured Party of the voting or
other rights in this Pledge Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Pledge Agreement (except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally).


 


(d)           Such Pledgor has the corporate power
and authority to deliver, pledge, assign and transfer the Pledged Collateral to
the Administrative Agent.


 


(e)           The Membership Interests listed on
Schedule I constitute 100% of the issued and outstanding membership interests
of each respective issuer thereof and all Membership Interests in which any
Pledgor has any ownership interest, provided that if such issuer is a
controlled foreign corporation under Section 957 of the Code, such Membership
Interests constitute 65% of the issued and outstanding membership interests of
such issuer. The Partnership Interests listed on the attached Schedule I constitute
100% of the issued and outstanding partnership interests of the respective
issuer thereof and all Partnership Interests in which any Pledgor has any
ownership interest, provided that if such issuer is a controlled foreign
corporation under Section 957 of the Code, such Partnership Interests
constitute 65% of the issued and outstanding partnership interests of such
issuer. The Pledged Shares listed on the attached Schedule I constitute 100% of
the issued and outstanding shares of capital stock of the respective issuer
thereof and all Pledged Shares in which Pledgor has any ownership interest, provided
that if such issuer is a controlled foreign corporation under Section 957
of the Code, such Pledged Shares constitute 65% of the issued and outstanding
capital stock of such issuer. The JV Interests listed on Schedule I constitute
100% of the JV Interests in which any Pledgor has any ownership interest.


 


(f)            The name of each Pledgor set forth
on the signature pages to this Pledge Agreement is the exact legal name of such
Pledgor.


 


Section 4.               Pledgors’ Covenants. During
the term of this Pledge Agreement and until the termination of the Revolving
Commitments, the payment in full of the Secured Obligations (other than
contingent indemnification obligations), and the expiration or termination of
all Letters of Credit, each Pledgor covenants and agrees with the Administrative
Agent that:


 


(a)           Protect Collateral. Each
Pledgor will warrant and defend the rights and title herein granted unto the Administrative
Agent in and to the Pledged Collateral (and all right, title, and interest
represented by the Pledged Collateral) against the claims and demands of all
Persons whomsoever (other than Permitted Liens).


 


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(b)           Transfer, Other Liens, and
Additional Shares. Each Pledgor will not (i) sell or otherwise dispose
of, or grant any option with respect to, any of the Pledged Collateral or (ii)
create or permit to exist any Lien upon or with respect to any of the Pledged
Collateral, except for the Liens and security interests under this Pledge
Agreement and Permitted Liens. Each Pledgor further agrees that it will (A)
cause each issuer of the Pledged Collateral not to issue any other membership
interests, partnership interests, capital stock, or other securities in
addition to or in substitution for the Pledged Collateral issued by such
issuer, except to such Pledgor and (B) pledge hereunder, promptly upon its
acquisition (directly or indirectly) thereof, any additional membership
interests, partnership interests, capital stock, joint venture interests or
other securities of an issuer of the Pledged Collateral. Such Pledgor shall not
approve any amendment or modification of any of the Pledged Collateral unless
it shall have given at least ten Business Days’ prior written notice (or such
lesser period as may be agreed by the Administrative Agent in writing) to the Administrative
Agent and such amendment or modification would not be materially adverse to the
interests of the Secured Parties.


 


(c)           Jurisdiction of Formation. Such
Pledgor shall not amend, supplement, modify or restate its articles or
certificate of incorporation, bylaws, limited liability company agreements, or
other equivalent constitutive documents if such amendment, supplement,
modification or restatement would be materially adverse to the interests of the
Secured Parties.


 


(d)           Further Assurances. Each
Pledgor agrees that, at its sole cost and expense, such Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be reasonably necessary and that the Administrative Agent or
any Secured Party may reasonably request, in order to perfect, maintain and
protect any security interest granted or purported to be granted hereby or to
enable the Administrative Agent or any Secured Party to exercise and enforce
its rights and remedies hereunder with respect to any Pledged Collateral.


 


Section 5.               Remedies upon Default. If
any Event of Default shall have occurred and be continuing:


 


(a)           UCC Remedies. To the extent
permitted by law, the Administrative Agent may (and at the request of the
Majority Lenders shall) exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for in this Pledge Agreement or
otherwise available to it, all the rights and remedies of a secured party under
the UCC (whether or not the UCC applies to the affected Pledged Collateral). This
Pledge Agreement shall not be construed to authorize the Administrative Agent to
take any action prohibited by the UCC or to constitute a waiver by any Pledgor
of any right that the UCC does not permit such Pledgor to waive.


 


(b)           Dividends and Other Rights.


 


(i)            All
rights of each Pledgor to exercise the voting and other consensual rights which
it would otherwise be entitled to exercise pursuant to Section 2(d)(i) may be
exercised by the Administrative Agent if the Administrative Agent so elects and
gives written notice of such election to such Pledgor, all rights of each Pledgor
to receive the dividends and other distributions on or in respect of the
Pledged Collateral and the proceeds of sale of the Pledged


 


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Collateral
which it would otherwise be authorized to receive and retain pursuant to
Section 2(d)(ii) shall cease at such time as such written notice is deemed
effective pursuant to the provisions of the Credit Agreement related to
effectiveness of notices.


 


(ii)           All
dividends and other distributions on or in respect of the Pledged Collateral
and the proceeds of sale of the Pledged Collateral that are thereafter received
by any Pledgor shall be received in trust for the benefit of the Administrative
Agent, shall be segregated from other funds of such Pledgor, and shall be
promptly paid over to the Administrative Agent as Pledged Collateral in the
same form as so received (with any necessary endorsement).


 


(c)           Sale of Pledged Collateral. The
Administrative Agent may sell all or part of the Pledged Collateral at public
or private sale, at any of the Administrative Agent’s offices or elsewhere, for
cash, on credit, or for future delivery, and upon such other terms as the Administrative
Agent may deem commercially reasonable in accordance with applicable laws. Each
Pledgor agrees that to the extent permitted by law such sales may be made
without notice. If notice is required by law, each Pledgor hereby deems 10 days’
advance notice of the time and place of any public sale or the time after which
any private sale is to be made reasonable notification, recognizing that if the
Pledged Collateral threatens to decline speedily in value or is of a type
customarily sold on a recognized market shorter notice may be reasonable. The Administrative
Agent shall not be obligated to make any sale of the Pledged Collateral
regardless of notice of sale having been given. The Administrative Agent may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. Each Pledgor shall
cooperate fully with the Administrative Agent in all respects in selling or
realizing upon all or any part of the Pledged Collateral. In addition, each
Pledgor shall fully comply with federal and state securities laws and take such
actions as may be necessary to permit the Administrative Agent to sell or
otherwise dispose of any securities representing the Pledged Collateral in
compliance with such laws; provided, however, that this provision shall not be
construed to require any Pledgor to register any of the Pledged Collateral
pursuant to federal or any state securities laws.


 


(d)           Exempt Sale. If, in the
opinion of the Administrative Agent, there is any question that a public or
semipublic sale or distribution of any Pledged Collateral will violate any
state or federal securities law, the Administrative Agent in its discretion (i)
may offer and sell securities privately to purchasers who will agree to take
them for investment purposes and not with a view to distribution and who will
agree to imposition of restrictive legends on the certificates representing the
security, or (ii) may sell such securities in an intrastate offering under
Section 3(a)(11) of the Securities Act of 1933, as amended, and no sale so made
in good faith by the Administrative Agent shall be deemed to be not “commercially
reasonable” solely because so made. Each Pledgor shall cooperate fully with the
Administrative Agent in all reasonable respects in selling or realizing upon
all or any part of the Pledged Collateral; provided, however, that this
provision shall not be construed to require any Pledgor to register any of the
Pledged Collateral pursuant to federal or any state securities laws.


 


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(e)           Application of Collateral. The
proceeds of any sale or other realization upon all or any part of the Pledged Collateral
shall be applied by the Administrative Agent as set forth in Section 7.06 of
the Credit Agreement.


 


(f)            Cumulative Remedies. Each
right, power and remedy herein specifically granted to the Administrative Agent
or otherwise available to it shall be cumulative, and shall be in addition to
every other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity, or otherwise, and each such right, power and
remedy, whether specifically granted herein or otherwise existing, may be
exercised at any time and from time to time as often and in such order as may
be deemed expedient by the Administrative Agent in its sole discretion. No
failure on the part of the Administrative Agent to exercise, and no delay in
exercising, and no course of dealing with respect to, any such right, power or
remedy, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such rights, power or remedy preclude any other or further
exercise thereof or the exercise of any other right.


 


Section 6.               Administrative Agent as
Attorney-in-Fact for Pledgors.


 


(a)           Administrative Agent Appointed Attorney-in-Fact.
Each Pledgor hereby irrevocably appoints the Administrative Agent as such
Pledgor’s attorney-in-fact, with full authority after the occurrence and during
the continuance of an Event of Default to act for such Pledgor and in the name
of such Pledgor, and, in the Administrative Agent’s discretion, subject to such
Pledgor’s revocable rights specified in Section 2(d), to take any action and to
execute any instrument which the Administrative Agent may deem necessary or
advisable to accomplish the purposes of this Pledge Agreement, including,
without limitation, to receive, indorse, and collect all instruments made
payable to the Pledgor representing the proceeds of the sale of the Pledged
Collateral, or any distribution in respect of the Pledged Collateral and to
give full discharge for the same. Each Pledgor hereby acknowledges, consents
and agrees that the power of attorney granted pursuant to this Section is
irrevocable and coupled with an interest.


 


(b)           Administrative Agent May Perform.
The Administrative Agent may from time to time perform any act which any
Pledgor agrees hereunder to perform and which such Pledgor shall fail to
perform after being requested in writing so to perform (it being understood
that no such request need be given after the occurrence and during the
continuance of any Event of Default and after notice thereof by the Administrative
Agent to such Pledgor) and the Administrative Agent may from time to time take
any other action which the Administrative Agent reasonably deems necessary for
the maintenance, preservation or protection of any of the Pledged Collateral or
of its security interest therein. The Administrative Agent shall be obligated
to provide notice to such Pledgor of any action taken hereunder by telecopy or
by registered mail.


 


(c)           Administrative Agent Has No Duty.
The powers conferred on the Administrative Agent hereunder are solely to
protect its interest in the Pledged Collateral and shall not impose any duty on
it to exercise any such powers. Except for reasonable care of any Pledged
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Administrative Agent shall have no duty as to any Pledged
Collateral or responsibility for taking any necessary steps to preserve rights
against prior parties or any other rights pertaining to any Pledged Collateral.


 


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(d)           Reasonable Care. The Administrative
Agent shall be deemed to have exercised reasonable care in the custody and preservation
of the Pledged Collateral in its possession if the Pledged Collateral is
accorded treatment substantially equal to that which the Administrative Agent
accords its own property, it being understood that the Administrative Agent
shall have no responsibility for (i) ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders, or other matters
relative to any Pledged Collateral, whether or not the Administrative Agent has
or is deemed to have knowledge of such matters, or (ii) taking any necessary
steps to preserve rights against any parties with respect to any Pledged
Collateral.


 


Section 7.               Miscellaneous.


 


(a)           Expenses. Each Pledgor will
upon demand pay to the Administrative Agent for its benefit and the benefit of
the Secured Parties the amount of any reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of its counsel and of any
experts, which the Administrative Agent and the Secured Parties may incur in
connection with (i) the custody, preservation, use, or operation of, or the
sale, collection, or other realization of, any of the Pledged Collateral, (ii)
the exercise or enforcement of any of the rights of the Administrative Agent or
any Secured Party hereunder, and (iii) the failure by any Pledgor to perform or
observe any of the provisions hereof.


 


(b)           Amendments, Etc. No amendment
or waiver of any provision of this Pledge Agreement nor any consent to any
departure by any Pledgor herefrom shall be effective unless made in writing and
authenticated by each affected Pledgor and the Administrative Agent. In
addition, no such amendment, waiver or consent shall be effective unless given
or entered into with the necessary approvals of either the Majority Lenders or
all Lenders as required under the terms of the Credit Agreement. Any such amendment,
waiver or consent, whether by the Administrative Agent or the Administrative
Agent and the Lenders shall be effective only in the specific instance and for
the specific purpose for which given.


 


(c)           Addresses for Notices. All
notices and other communications provided for hereunder shall be in the manner
and to the addresses set forth in the Credit Agreement.


 


(d)           Continuing Security Interest;
Transfer of Interest. This Pledge Agreement shall create a continuing
security interest in the Pledged Collateral and, unless expressly released by
the Administrative Agent, shall (i) remain in full force and effect until
payment in full of the Secured Obligations (including all Letter of Credit
Obligations), the termination or expiration of all Letters of Credit and the
termination of all obligations of the Issuing Bank and the Lenders in respect
of Letters of Credit, and the termination or expiration of the Revolving
Commitments, (ii) be binding upon the Pledgors, the Administrative Agent, the Secured
Parties and their successors, and assigns, and (iii) inure, together with the
rights and remedies of the Administrative Agent hereunder, to the benefit of
and be binding upon, the Administrative Agent, the Secured Parties and their
respective successors, transferees, and assigns. Upon the payment in full and
termination of the Secured Obligations, the security interest granted hereby
shall terminate and all rights to the Pledged Collateral shall revert to the
Pledgors to the extent such Pledged Collateral shall not have been sold or
otherwise applied pursuant to the terms hereof. Without limiting the generality
of the foregoing clause, when any Lender assigns or otherwise transfers any
interest held by it under the Credit Agreement or other Loan Document


 


10

















 


to any other Person pursuant to the terms of the
Credit Agreement or other Loan Document, that other Person shall thereupon
become vested with all the benefits held by such Lender under this Pledge
Agreement. Upon any such termination, the Administrative Agent will, at the
Borrowers’ expense, deliver all Pledged Collateral to the Borrowers, execute
and deliver to the Borrowers such documents as the Borrowers shall reasonably
request and take any other actions reasonably requested to evidence or effect
such termination.


 


(e)           Waivers. Each Pledgor hereby
waives:


 


(i)            promptness,
diligence, notice of acceptance, and any other notice with respect to any of
the Secured Obligations and this Pledge Agreement;


 


(ii)           any
requirement that the Administrative Agent or any Secured Party protect, secure,
perfect, or insure any Lien or any Property subject thereto or exhaust any
right or take any action against any Pledgor or any other Person or any
collateral; and


 


(iii)          any
duty on the part of the Administrative Agent to disclose to any Pledgor any
matter, fact, or thing relating to the business, operation, or condition of
such Pledgor and its respective assets now known or hereafter known by such
Person.


 


(f)            Severability. Wherever
possible each provision of this Pledge Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Pledge Agreement shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Pledge Agreement.


 


(g)           Choice of Law. This Pledge Agreement
shall be governed by and construed and enforced in accordance with the laws of
the state of New York, except to the extent that the validity or perfection of
the security interests hereunder, or remedies hereunder, in respect of any
particular Collateral are governed by the laws of a jurisdiction other than the
state of New York.


 


(h)           Counterparts. For the
convenience of the parties, this Pledge Agreement may be executed in multiple
counterparts and by different parties hereto in separate counterparts
(including by facsimile), each of which for all purposes shall be deemed to be
an original, and all such counterparts shall together constitute but one and
the same Pledge Agreement.


 


(i)            Reinstatement. If, at any
time after payment in full by the Pledgors of all Secured Obligations and
termination of the Administrative Agent’s security interest, any payments on
the Secured Obligations previously made by any Pledgor or any other person must
be disgorged by the Administrative Agent for any reason whatsoever, including,
without limitation, the insolvency, bankruptcy or reorganization of such
Pledgor or such Person, this Pledge Agreement and the Administrative Agent’s
security interests herein shall be reinstated as to all disgorged payments as
though such payments had not been made, and such Pledgor shall sign and deliver
to the Administrative Agent all documents, and shall do such other acts and
things, as may be necessary to reinstate and perfect the Administrative Agent’s
security interest.


 


11

















 


(j)            Additional Pledgors. Pursuant
to Section 5.12 of the Credit Agreement, each Subsidiary of the Parent that was
not a Subsidiary of the Parent on the date of the Credit Agreement is required
to enter into this Pledge Agreement as a Pledgor upon becoming a Subsidiary of
the Parent. Upon execution and delivery after the date hereof by the
Administrative Agent and such Subsidiary of an instrument in the form of Annex
1, such Subsidiary shall become a Pledgor hereunder with the same force and
effect as if originally named as a Pledgor herein. The execution and delivery
of any instrument adding an additional Pledgor as a party to this Pledge
Agreement shall not require the consent of any other Pledgor hereunder. The
rights and obligations of each Pledgor hereunder shall remain in full force and
effect notwithstanding the addition of any new Pledgor as a party to this
Pledge Agreement.


 


(k)           Intercreditor
Agreement. To the fullest extent possible, the terms and provisions of the
Intercreditor Agreement shall be read together with the terms and provisions of
this Pledge Agreement so that the terms and provisions of this Pledge Agreement
do not conflict with the terms and provisions of the Intercreditor Agreement;
provided, however, notwithstanding the foregoing, in the event that any of the
terms or provisions of this Pledge Agreement conflict with any terms or
provisions of the Intercreditor Agreement, the terms or provisions of the
Intercreditor Agreement shall govern and control for all purposes.


 


Section 8.               Acknowledgment and Restatement.


 


(a)           Acknowledgment of Security
Interests.


 


(i)            Each
Pledgor hereby acknowledges, confirms and agrees that the Administrative Agent
for the ratable benefit of the Secured Parties shall continue to have a
security interest in and lien upon the Pledged Collateral heretofore granted to
the Administrative Agent for the ratable benefit of the Secured Parties
pursuant to the Loan Documents to secure the Secured Obligations, as well as
any Pledged Collateral granted under this Pledge Agreement or under any of the
other Loan Documents or otherwise granted to or held by the Administrative
Agent or any Secured Party.


 


(ii)           The
liens and security interests of the Administrative Agent for the benefit of the
Secured Parties in the Pledged Collateral shall be deemed to be continuously
granted and perfected from the earliest date of the granting and perfection of
such liens and security interests to the Administrative Agent for the ratable
benefit of the Secured Parties, whether under this Pledge Agreement or any of
the other Loan Documents.


 


(b)           Loan Documents. Each Pledgor
hereby acknowledges, confirms and agrees that: (i) the Loan Documents have been
duly executed and delivered by such Pledgor, the Borrowers and the Guarantors
and are in full force and effect as of the date hereof and (ii) the agreements
and obligations of such Pledgor contained in the Loan Documents constitute the
legal, valid and binding obligations of such Pledgor enforceable against it in
accordance with its terms and such Pledgor has no valid defense to the
enforcement of such obligations and (iii) the Administrative Agent on behalf of
the Secured Parties is entitled to all of the rights and remedies provided for
in


 


12

















 


favor of the Administrative Agent for the benefit of
the Secured Parties in the Loan Documents, as amended and restated by this Pledge
Agreement.


 


(c)           Restatement. The amendment and
restatement contained herein shall not, in any manner, be construed to
constitute payment of, or impair, limit, cancel or extinguish, or constitute a
novation in respect of, the indebtedness and other obligations and liabilities
of any Pledgor evidenced by or arising under the Loan Documents, and the liens
and security interests in the Pledged Collateral (as such term is defined
herein) of the Administrative Agent for the ratable benefit of the Secured
Parties securing such indebtedness and other obligations and liabilities, which
shall not in any manner be impaired, limited, terminated, waived or released,
but shall continue in full force and effect in favor of Administrative Agent
for the ratable benefit of Secured Parties.


 


[Remainder of Page Intentionally Left Blank]


 


13

















 


The parties hereto have caused this Pledge
Agreement to be duly executed as of the date first above written.


 


	
   

  	
  PLEDGORS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Carole R. Artman-Hodge

  	
   

  
	
   

  	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
   

  	
  Executive Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Carole R. Artman-Hodge

  	
   

  
	
   

  	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Carole R. Artman-Hodge

  	
   

  
	
   

  	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
   

  	
  Executive Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ONLINE CHOICE INC.

  
	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
  INFOMETER.COM INC.

  
	
   

  	
  MXENERGY CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY CAPITAL CORP.

  
	
   

  	
  MXENERGY GAS CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL HOLDINGS

  
	
   

  	
  CORP.

  
	
   

  	
  MXENERGY GAS CAPITAL CORP.

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL CORP.

  
	
   

  	
  TOTAL GAS & ELECTRIC INC.

  
	
   

  	
  TOTAL GAS & ELECTRICITY (PA) INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Carole R. Artman-Hodge

  	
   

  
	
   

  	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
   

  	
  Vice President

  



 


Signature Page to First Amended and Restated
Pledge Agreement


 

















 


	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ GÉNÉRALE,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chung-Taek Oh

  	
   

  
	
   

  	
  Name: Chung-Taek Oh

  
	
   

  	
  Title: Associate

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara Paulsen

  	
   

  
	
   

  	
  Name: Barbara Paulsen

  
	
   

  	
  Title: Director

  



 

















 


SCHEDULE I


 


PLEDGED COLLATERAL


 


I.                                         Membership
Interests


 


None.


 


II.                                     Partnership
Interests


 


None.


 


III.                                 Shares


 


	
  Pledgor

  	
   

  	
  Pledged

  Subsidiary

  	
   

  	
  State or Country

  of Organization

  (Pledged

  Subsidiary)

  	
   

  	
  Class of Stock

  	
   

  	
  Certificate(s)

  No(s).

  	
   

  	
  Number of

  Shares

  
	
  MxEnergy Electric Inc.

  	
   

  	
  Total Gas & Electricity (PA) Inc.

  	
   

  	
  Florida

  	
   

  	
  Common

  	
   

  	
  #4

  	
   

  	
  10 Shares

  
	
  MxEnergy Inc.

  	
   

  	
  Total Gas & Electric Inc.

  	
   

  	
  Florida

  	
   

  	
  Common

  	
   

  	
  #63

  	
   

  	
  566,500 Shares

  
	
  MxEnergy Holdings Inc.

  	
   

  	
  MxEnergy Capital Holdings Corp.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #1

  	
   

  	
  100 Shares

  
	
  MxEnergy Capital Holdings Corp.

  	
   

  	
  MxEnergy Capital Corp.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #1

  	
   

  	
  100 Shares

  
	
  MxEnergy Capital Corp.

  	
   

  	
  Online Choice Inc.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #4

  	
   

  	
  10,000 Shares

  
	
  MxEnergy Capital Corp.

  	
   

  	
  MxEnergy Gas Capital Holdings Corp.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #1

  	
   

  	
  100 Shares

  



 

















 


	
  MxEnergy Capital Corp.

  	
   

  	
  MxEnergy Electric Capital Holdings Corp.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #1

  	
   

  	
  100 Shares

  
	
  MxEnergy Capital Corp.

  	
   

  	
  MxEnergy Services Inc.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #3

  	
   

  	
  100 Shares

  
	
  MxEnergy Capital Corp.

  	
   

  	
  Infometer.com Inc.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #4

  	
   

  	
  10,000 Shares

  
	
  MxEnergy Gas Capital Holdings Corp.

  	
   

  	
  MxEnergy Gas Capital Corp.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #1

  	
   

  	
  100 Shares

  
	
  MxEnergy Electric Capital Holdings Corp.

  	
   

  	
  MxEnergy Electric Capital Corp.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #1

  	
   

  	
  100 Shares

  
	
  MxEnergy Gas Capital Corp.

  	
   

  	
  MxEnergy Inc.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #222

  	
   

  	
  100 Shares

  
	
  MxEnergy Electric Capital Corp.

  	
   

  	
  MxEnergy Electric Inc.

  	
   

  	
  Delaware

  	
   

  	
  Common

  	
   

  	
  #6

  	
   

  	
  100,000 Shares

  



 


IV.                                 Intercompany Indebtedness


 


None.


 


V.                                     Joint Venture Interests


 


None.