Exhibit 10.1(b)
(Multicurrency - Cross Border)
ISDA®
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of September 22, 2009
SEMPRA ENERGY TRADING LLC
MXENERGY ELECTRIC INC.
("Party A")
("Party B")
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: -
1.
INTERPRETATION
(A)
DEFINITIONS.
THE TERMS DEFINED IN SECTION 14 AND IN THE SCHEDULE
WILL HAVE THE MEANINGS THEREIN SPECIFIED FOR THE PURPOSE OF THIS MASTER
AGREEMENT.
(B)
INCONSISTENCY.
IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE
PROVISIONS OF THE SCHEDULE AND THE OTHER PROVISIONS OF THIS MASTER AGREEMENT,
THE SCHEDULE WILL PREVAIL. IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE
PROVISIONS OF ANY CONFIRMATION AND THIS MASTER AGREEMENT (INCLUDING THE
SCHEDULE), SUCH CONFIRMATION WILL PREVAIL FOR THE PURPOSE OF THE RELEVANT
TRANSACTION.
(C)
SINGLE AGREEMENT.
ALL TRANSACTIONS ARE ENTERED INTO IN RELIANCE
ON THE FACT THAT THIS MASTER AGREEMENT AND ALL CONFIRMATIONS FORM A SINGLE
AGREEMENT BETWEEN THE PARTIES (COLLECTIVELY REFERRED TO AS THIS "AGREEMENT"),
AND THE PARTIES WOULD NOT OTHERWISE ENTER INTO ANY TRANSACTIONS.
2.
OBLIGATIONS
(A)
GENERAL CONDITIONS.
(I)
EACH PARTY WILL MAKE EACH PAYMENT OR DELIVERY SPECIFIED IN EACH
CONFIRMATION TO BE MADE BY IT, SUBJECT TO THE OTHER PROVISIONS OF THIS
AGREEMENT.
(II)
PAYMENTS UNDER THIS AGREEMENT WILL BE MADE ON THE DUE DATE FOR
VALUE ON THAT DATE IN THE PLACE OF THE ACCOUNT SPECIFIED IN THE RELEVANT
CONFIRMATION OR OTHERWISE
PURSUANT TO THIS AGREEMENT, IN FREELY TRANSFERABLE FUNDS AND IN THE MANNER
CUSTOMARY FOR PAYMENTS IN THE REQUIRED CURRENCY. WHERE SETTLEMENT IS BY DELIVERY
(THAT IS, OTHER THAN BY PAYMENT), SUCH DELIVERY WILL BE MADE FOR RECEIPT ON THE
DUE DATE IN THE MANNER CUSTOMARY FOR THE RELEVANT OBLIGATION UNLESS OTHERWISE
SPECIFIED IN THE RELEVANT CONFIRMATION OR ELSEWHERE IN THIS AGREEMENT.
(III)
EACH OBLIGATION OF EACH PARTY UNDER SECTION 2(A)(I) IS SUBJECT TO
(1) THE CONDITION PRECEDENT THAT NO EVENT OF DEFAULT OR POTENTIAL EVENT OF
DEFAULT WITH RESPECT TO THE OTHER PARTY HAS OCCURRED AND IS CONTINUING, (2) THE
CONDITION PRECEDENT THAT NO EARLY TERMINATION DATE IN RESPECT OF THE RELEVANT
TRANSACTION HAS OCCURRED OR BEEN EFFECTIVELY DESIGNATED AND (3) EACH OTHER
APPLICABLE CONDITION PRECEDENT SPECIFIED IN THIS AGREEMENT.
(B)
CHANGE OF ACCOUNT. EITHER PARTY MAY CHANGE ITS ACCOUNT FOR
RECEIVING A PAYMENT OR DELIVERY BY GIVING NOTICE TO THE OTHER PARTY AT LEAST
FIVE LOCAL BUSINESS DAYS PRIOR TO THE SCHEDULED DATE FOR THE PAYMENT OR DELIVERY
TO WHICH SUCH CHANGE APPLIES UNLESS SUCH OTHER PARTY GIVES TIMELY NOTICE OF A
REASONABLE OBJECTION TO SUCH CHANGE.
(C)
NETTING. IF ON ANY DATE AMOUNTS WOULD OTHERWISE BE PAYABLE: -
(I)
IN THE SAME CURRENCY; AND
(II)
IN RESPECT OF THE SAME TRANSACTION,
by each party to the other, then, on such date, each party's obligation to make
payment of