Exhibit 10.1
FIRST AMENDMENT
DATED AS OF SEPTEMBER 28, 2009
TO THE
ISDA MASTER AGREEMENT
DATED AS OF SEPTEMBER 22, 2009
AMONG
SEMPRA ENERGY TRADING LLC,
MXENERGY INC.
AND
THE SPECIFIED ENTITIES PARTY THERETO
FIRST AMENDMENT dated as of September 28, 2009 (this "First Amendment") to the
ISDA MASTER AGREEMENT, dated as of September 22, 2009 (as amended, supplemented
or otherwise modified as of the date hereof, the "Gas Master ISDA Agreement"),
among SEMPRA ENERGY TRADING LLC ("Party A"), MXENERGY INC. ("Party B") and the
Specified Entities party thereto.
W I T N E S S E T H :
WHEREAS, Party A and Party B, among others, are parties to that certain ISDA
Master Agreement dated as of September 22, 2009 and to the Schedule dated as of
September 22, 2009 to the Gas Master ISDA Agreement (the "Gas Master ISDA
Schedule"); and
WHEREAS, Party A and Party B wish to amend the Gas Master ISDA Schedule on the
terms and conditions provided for herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1
DEFINITIONS AND INTERPRETATION.
(A)
ALL CAPITALIZED TERMS USED HEREIN WHICH ARE
NOT OTHERWISE SPECIFICALLY DEFINED HEREIN SHALL HAVE THE RESPECTIVE MEANING AS
ASCRIBED THERETO IN THE GAS MASTER ISDA AGREEMENT.
(B)
UNLESS OTHERWISE EXPRESSLY INDICATED, ALL
REFERENCES CONTAINED HEREIN TO SECTIONS OR OTHER SUBDIVISIONS, SCHEDULES,
ANNEXES OR EXHIBITS REFER TO THE CORRESPONDING SECTIONS AND OTHER SUBDIVISIONS,
SCHEDULES, ANNEXES OR EXHIBITS OF THE GAS MASTER ISDA AGREEMENT.
(C)
THE SECTIONS AND THE HEADINGS IN THE
SECTIONS IN THIS FIRST AMENDMENT ARE FOR CONVENIENCE ONLY.
SAID SECTIONS AND
HEADINGS SHALL NOT BE DEEMED TO BE PART OF THIS FIRST AMENDMENT AND IN NO WAY
DEFINE, LIMIT, EXTEND OR DESCRIBE THE SCOPE OR INTENT OF ITS PROVISIONS.
ARTICLE II
AMENDMENTS
SECTION 2.1
AMENDMENT TO PART 12(A)(VI)(A).
PART 12(A)(VI)(A) OF THE GAS
MASTER ISDA SCHEDULE IS HEREBY AMENDED BY DELETING THE SEMICOLON AND INSERTING
IN LIEU THEREOF THE FOLLOWING:
"provided that for the fiscal year ended June 30, 2009, Party B will furnish the
financial statements referred to in the foregoing clauses (A)(1) and (A)(2) to
Party A on or before October 13, 2009;"
SECTION 2.2
AMENDMENTS TO PART 14(A).
(A)
THE DEFINITION OF "ADJUSTED CONSOLIDATED
TANGIBLE NET WORTH" SET FORTH IN PART 14(A) OF THE GAS MASTER ISDA SCHEDULE IS
HEREBY AMENDED BY RENUMBERING THE EXISTING CLAUSE (VI) THEREOF AS CLAUSE
(VII) AND INSERTING THE FOLLOWING NEW CLAUSE (VI) IMMEDIATELY FOLLOWING THE WORD
"APPLICATION" IN CLAUSE (V):
", (vi) non-cash charges associated with any deferred tax valuation allowances"
(B)
THE DEFINITION OF "PERMITTED INDEBTEDNESS"
SET FORTH IN PART 14(A) OF THE GAS MASTER ISDA SCHEDULE IS HEREBY AMENDED BY
DELETING THE WORD "AND" APPEARING AT THE END OF CLAUSE (XII) THEREOF, REPLACING
THE PERIOD AT THE END OF CLAUSE (XIII) THEREOF WITH A SEMICOLON AND INSERTING
THE WORD "AND" IMMEDIATELY THEREAFTER, AND