Exhibit 10.1
SECOND AMENDMENT
DATED AS OF DECEMBER 21, 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
SECOND AMENDMENT dated as of December 21, 2009 (this "Second 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 (as amended, 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 SECOND AMENDMENT ARE FOR CONVENIENCE ONLY.
SAID SECTIONS AND
HEADINGS SHALL NOT BE DEEMED TO BE PART OF THIS SECOND AMENDMENT AND IN NO WAY
DEFINE, LIMIT, EXTEND OR DESCRIBE THE SCOPE OR INTENT OF ITS PROVISIONS.
ARTICLE II
AMENDMENTS
SECTION 2.
AMENDMENT TO PART 8(B)(II)
.
PART 8(B)(II)
OF THE GAS MASTER ISDA
SCHEDULE IS HEREBY AMENDED BY DELETING WORDS "NO LATER THAN 90 DAYS AFTER THE
CLOSING DATE," APPEARING IN THE SECOND LINE AND INSERTING IN LIEU THEREOF THE
FOLLOWING:
"no later than April 1, 2010,"
ARTICLE III
MISCELLANEOUS
SECTION 3.1
GAS MASTER ISDA AGREEMENT.
EXCEPT AS AMENDED BY THIS SECOND
AMENDMENT, THE GAS MASTER ISDA AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT
IN ACCORDANCE WITH ITS TERMS.
THIS SECOND AMENDMENT SHALL BE DEEMED TO BE PART
OF THE GAS MASTER ISDA AGREEMENT.
SECTION 3.2
REFERENCES TO GAS MASTER ISDA SCHEDULE.
WHENEVER IN ANY
CERTIFICATE, LETTER, NOTICE OR OTHER INSTRUMENT REFERENCE IS MADE TO THE GAS
MASTER ISDA SCHEDULE, SUCH REFERENCE WITHOUT MORE SHALL INCLUDE REFERENCE TO
THIS SECOND AMENDMENT.
SECTION 3.3
LEGAL, VALID AND BINDING OBLIGATION.
EACH PARTY HERETO HEREBY
REPRESENTS AND WARRANTS THAT THIS SECOND AMENDMENT IS A LEGAL, VALID AND BINDING
OBLIGATION OF SUCH PARTY AND IS ENFORCEABLE AGAINST SUCH PARTY IN ACCORDANCE
WITH ITS TERMS.
SECTION 3.4
CONFIRMATION AND REAFFIRMATION OF ISDA DOCUMENTS.