Exhibit
10.2


 


Execution
Version


FIRST
AMENDMENT TO


FIRST
AMENDED AND RESTATED CREDIT AGREEMENT


 


                This
First Amendment (this “Amendment”), dated as of April 6, 2007 (the “Amendment
Effective Date”), is by and among MxEnergy Inc., a Delaware corporation (“MXEnergy”),
and 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 signature appears below
as Lenders.


 


PRELIMINARY
STATEMENTS


 


                A.            Reference is made to the First
Amended and Restated Credit Agreement dated as of August 1, 2006 (as amended to
date, the “Credit Agreement”) among the Borrowers, the Guarantors, the
lenders party thereto and the Administrative Agent. 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 has requested that the Majority Lenders amend the
Credit Agreement as hereinafter provided; and


 


                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)            The definition of “Borrowing Base”
in Section 1.01 of the Credit Agreement is hereby amended by replacing clause
(a) of such definition its entirety as follows:


(a)  an amount equal to (i) 100% of cash and Cash
Equivalents of the Borrowers and their Subsidiaries in Dollars that are subject
to an Acceptable Security Interest and (ii) 95% of the current market value of
the Investments permitted under Section 6.05(j); plus


 


(ii)           The definition of “Consolidated
Tangible Net Worth” in Section 1.01 of the Credit Agreement is hereby amended
by adding the following clause immediately prior to the end of such definition:


 


 

















 


plus (i) non-cash
compensation expenses from July 1, 2006 through such date to the extent
included in the calculation of Consolidated Net Income for such period


 


(b)           Amendments
to Section 5.06.


 


(i)            Section 5.06(e) of the Credit
Agreement is hereby amended by inserting a “(i)” in front of the phrase “Within
seven Business Days” appearing at the beginning of such Section and adding the
following new clause (ii) at the end of such Section:


and (ii) within 60 days
following the last day of each fiscal quarter, a Borrowing Base Report as of
the last day of such fiscal quarter, together with supporting documentation
reasonably acceptable to the Administrative Agent, setting forth (A) the actual
Borrowing Base as of the end of such fiscal quarter, (B) any significant
discrepancies in the Borrowing Base since the date of the Borrowing Base Report
delivered on the last day of such fiscal quarter and (C) a statement explaining
the reasons for any such discrepancies;


 


(ii)           Section
5.06(f) of the Credit Agreement is hereby amended by inserting a new clause
(ii) and re-numbering the existing clause (ii) as clause (iii):


 


(ii)  on the last day of each fiscal quarter, a
certificate from a Responsible Officer of the Borrowers certifying a
description of any revisions or updates to the schedules to the Risk Management
Policy or, if there have been no such revisions or updates, certifying that
there have not been any such revisions or updates.


 


(c)           Amendment to Section 6.05.  Section 6.05 of the Credit Agreement is
hereby amended by inserting a new clause (j) and re-lettering the existing
clause (j) as clause (k):


(j)            Investments in the form of auction rate securities which
are repriced at least every 35 days and have a rating of AAA or higher by
S&P or Aaa or higher by Moody’s; and


 


(d)           Amendment to Section 6.17.  Section 6.17 of the Credit Agreement is
hereby amended in its entirety to read as follows:


Minimum
Consolidated Tangible Net Worth.   Permit Consolidated Tangible Net Worth at
any time to be less than the sum of (a) $30,000,000.00 plus (b) an amount equal
to 50% of the sum of (i) the positive year-to-date Consolidated Net Income (plus,
to the extent excluded from 


 


 


2

















 


Consolidated Net Income,
non-cash compensation expenses) through such date and (ii) other than for the
then current fiscal year, the positive Consolidated Net Income (plus, to the
extent excluded from Consolidated Net Income, non-cash compensation expenses)
for each full fiscal year ending on and after June 30, 2007 plus (c) an amount
equal to 100% of the net proceeds from any equity issued by the Parent.


 


(e)           Amendment to Section 6.18.  Section 6.18 of the Credit Agreement is
hereby amended by replacing “$130,000,000” with “$145,000,000”.


(f)            Amendment to Section 6.20.  The first sentence of Section 6.20 of the
Credit Agreement is hereby amended in its entirety to read as follows:


Permit, as of the last day
of any fiscal quarter occurring during any period set forth below, the ratio of
Consolidated EBITDA for the four quarters then ending to Consolidated Interest
Expense for such period to be less than the ratio set forth below opposite such
period:


 


	
  Period

  	
   

  	
  Interest Coverage Ratio

  
	
   

  	
   

  	
   

  
	
  From the Closing Date
  through December 31, 2007

  	
   

  	
  2.00
  to 1.00

  
	
   

  	
   

  	
   

  
	
  January 1, 2008 and
  thereafter

  	
   

  	
  1.60
  to 1.00

  



 


Section 2.               Amendment to Exhibit B.  Exhibit B to the Credit Agreement is hereby
amended by replacing item 1.(a) thereon in its entirety with the following:


	
  (a)

  	
   

  	
  (i) cash and Cash
  Equivalents of the Borrowers and their Subsidiaries in Dollars that are
  subject to an Acceptable Security Interest; and

  	
   

  	
  $          

  	
   

  	
  100

  	
  %

  	
  $           

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii) current market value
  of the Investments permitted under Section 6.05(j)

  	
   

  	
  $          

  	
   

  	
  95

  	
  %

  	
  $          

  



 


 


3

















 


Section 3.               Conditions to Effectiveness.  This Amendment shall be effective as of the 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 certificate of Secretary or other
officer of each Loan Party certifying the name and title of the officer of such
Loan Party that is authorized to execute this Amendment and that none of the
organizational documents of such Loan Party have been changed since the Closing
Date; and


(c)           evidence that the Borrowers have paid
(i) the Administrative Agent for the pro rata benefit of each Lender an
amendment fee equal to 0.10% of the aggregate Revolving Commitments of all
Lenders  and (ii) all other costs,
accrued and unpaid fees and expenses to the extent due and payable to the
Lenders and the Administrative Agent as of the Amendment Effective Date
pursuant to the Credit Agreement and any fee letter executed by the Borrowers.


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


(a)           all representations and warranties of
such Loan Party contained in the Credit Agreement 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 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.               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.


 


4

















 


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]


 


 


5

















 


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 Effective Date.


	
   

  	
  BORROWERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chaitu Parikh

  
	
   

  	
   

  	
  Chaitu Parikh

  
	
   

  	
   

  	
  Vice President and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Chaitu Parikh

  
	
   

  	
   

  	
  Chaitu Parikh

  
	
   

  	
   

  	
  Vice President and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Chaitu Parikh

  
	
   

  	
   

  	
  Chaitu Parikh

  
	
   

  	
   

  	
  Vice President and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
  ONLINE CHOICE INC.

  
	
   

  	
  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.

  
	
   

  	
  MXENERGY CAPITAL HOLDINGS
  CORP.

  
	
   

  	
  MXENERGY CAPITAL CORP.

  
	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
  INFOMETER.COM INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Chaitu Parikh

  
	
   

  	
   

  	
  Chaitu Parikh

  
	
   

  	
   

  	
  Vice President and CFO

  



 


 


[First
Amendment to Credit Agreement]


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Emmanuel Chesneau

  
	
   

  	
  Name:

  	
  Emmanuel Chesneau

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chung Taek Oh

  
	
   

  	
  Name:

  	
  Chung Taek Oh

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


 


 


 


[First
Amendment to Credit Agreement]


 


 

















 


 


 


	
   

  	
  WACHOVIA BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dean Gorton

  
	
   

  	
  Name:

  	
  Dean Gorton

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LA SALLE BANK NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Meghan A. Schultz

  
	
   

  	
  Name:

  	
  Meghan A. Schultz

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ALLIED IRISH BANKS, P.L.C.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Aidan Lanigan

  
	
   

  	
  Name:

  	
  Aidan Lanigan

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David O’Driscoll

  
	
   

  	
  Name:

  	
  David O’Driscoll

  
	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN STANLEY SENIOR
  FUNDING, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel Gioia

  
	
   

  	
  Name:

  	
  Daniel Gioia

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


 


[First
Amendment to Credit Agreement]