SUPPLEMENTAL INDENTURE
Exhibit
4.1
SUPPLEMENTAL
INDENTURE dated as of August 1, 2007 (the “Supplemental Indenture”), by and
among MxEnergy Holdings Inc., a Delaware corporation (the “Company”), the
guarantors party hereto (the “Guarantors”) and Law Debenture Trust Company of
New York, as trustee (the “Trustee”), to the Indenture, dated as of August 4,
2006 (the “Indenture”), by and among the Company, the guarantors party thereto
(the “Initial Guarantors”), Deutsche Bank Trust Company Americas, as paying
agent and registrar, and the Trustee. Capitalized terms used in this
Supplemental Indenture and not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture.
WITNESSETH:
WHEREAS,
the Company, the Initial Guarantors and the Trustee have heretofore executed
and
delivered the Indenture providing for the issuance of Floating Rate Senior
Notes
due 2011 (the “Notes”) of the Company;
WHEREAS,
Section 9.2 of the Indenture provides that the Company, the Trustee and the
Guarantors may, with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including consents obtained
in
connection with a tender offer for the Notes), amend or supplement the Indenture
and/or the Notes;
WHEREAS,
the Company has offered to purchase for cash any and all of the outstanding
Notes upon the terms and subject to the conditions set forth in the Amended
and
Restated Offer to Purchase and Consent Solicitation Statement, dated July 30,
2007, as the same may be amended, supplemented or modified (the
“Offer”);
WHEREAS,
the Offer is conditioned upon, among other things, the proposed amendments
(the
“Proposed Amendments”) to the Indenture set forth herein having been approved by
at least a majority in aggregate principal amount of the Notes outstanding,
with
Article I of this Supplemental Indenture becoming operative with respect to
the
Indenture upon the date hereof and Article II of this Supplemental Indenture
becoming operative with respect to the Indenture upon the acceptance for payment
of Notes representing a majority in aggregate principal amount of the
outstanding Notes pursuant to the Offer (the “Acceptance”);
WHEREAS,
the Company has received and delivered to the Trustee the requisite consents
to
effect the Proposed Amendments under the Indenture;
WHEREAS,
the Company has been authorized by a resolution of its Board of Directors to
enter into this Supplemental Indenture; and
1
WHEREAS,
all other acts and proceedings required by law, by the Indenture and the amended
and restated certificate of incorporation and amended restated by-laws of the
Company to make this Supplemental Indenture a valid and binding agreement of
the
Company for the purposes expressed herein, in accordance with its terms, have
been duly done and performed;
NOW
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, and for other good and valuable consideration the receipt
of
which is hereby acknowledged, and for the equal and proportionate benefit of
the
Holders of the Notes, the Company, the Guarantors and the Trustee hereby agree
as follows:
Article
I.
Amendments
to the Indenture
1.1 Defined
Terms. As used in this Supplemental Indenture, terms defined in
the Indenture or in the preamble or recital hereto are used herein as therein
defined. The words “herein,” “hereof” and “hereby” and other words of
similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section hereof.
1.2 Amendment
of Section 1.1. Section 1.1 of the Indenture is hereby
amended to include the following terms in alphabetical order with the other
terms appearing within Section 1.1 of the Indenture:
““Additional
Exchange Offer” means the offer made by the Company to exchange Series A Notes
for Series B Notes pursuant to Section 4.20 of this Indenture.
“Additional
Exchange Offer Registration Statement” means a Registration Statement on an
appropriate registration form with respect to a registered offer to exchange
any
and all of the Registrable Notes for a like aggregate principal amount of the
Exchange Notes.
“Additional
Interest” has the meaning set forth in Section 4.20(m) hereof.
“Applicable
Period” has the meaning set forth in Section 4.20(f) hereof.
“Current
Exchange Offer” means the offer made by the Company to exchange Series A Notes
for Series B Notes pursuant to the Registration Statement on Form S-4
(Registration No. 333-138425) filed with the Commission on November 3, 2006,
as
amended.
2
“Effectiveness
Date” means the 90th day after the Termination Date; provided, however,
that if the Effectiveness Date would otherwise fall on a day that is not a
Business Day, then the Effectiveness Date shall be the next succeeding Business
Day.
“Effectiveness
Period” has the meaning set forth in Section 4.20(l)(ii) hereof.
“Event
Date” has the meaning set forth in Section 4.20(n) hereof.
“Exchange
Offer” means (i) the Current Exchange Offer or (ii) the Additional Exchange
Offer.
“Exchange
Notes” means the Floating Rate Senior Notes due 2011 issued in exchange for the
Initial Notes, which Exchange Notes are registered under the Securities Act
and
issued pursuant to (i) the terms of a certain registration rights agreement
dated as of August 4, 2006 by and among the Company, the Guarantors and the
initial purchasers named therein; or (ii) the terms of Section 4.20 of this
Indenture.
“Filing
Date” means the 45th day following the Termination Date; provided, however,
that if the Filing Date would otherwise fall on a day that is not
a
Business Day, then the Filing Date shall be the next succeeding Business
Day.
“Offer”
means the Company’s offer to purchase for cash any and all of its outstanding
Notes upon the terms and subject to the conditions set forth in the Amended
and
Restated Offer to Purchase and Consent Solicitation Statement, dated as of
July
30, 2007, and in the related Letter of Transmittal and Consent.
“Participating
Broker-Dealer” means any broker-dealer that is the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by
such
broker-dealer in the Additional Exchange Offer.
“Prospectus”
means the prospectus included in any Registration Statement (including, without
limitation, any prospectus subject to completion and a prospectus that includes
any information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Notes” means each Note (and the related Guarantees) upon its original issuance
and at all times subsequent thereto, each Exchange Note (and the related
Guarantees) as to which Section 4.20(k)(iii) hereof is applicable upon
original issuance and at all times subsequent thereto, until, in each case,
the
earliest to occur of
3
(i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 4.20(k)(iii) hereof is applicable, the Additional Exchange
Offer Registration Statement) covering such Note or Exchange Note has been
declared effective by the Commission and such Note or Exchange Note (and the
related Guarantees), as the case may be, has been disposed of in accordance
with
such effective Registration Statement, (ii) such Note has been exchanged
pursuant to the Additional Exchange Offer for an Exchange Note (and the related
Guarantees) that may be resold without restriction under state and federal
securities laws, (iii) such Note or Exchange Note (and the related
Guarantees), as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note or Exchange Note (and the related Guarantees),
as the case may be, may be resold without restriction pursuant to
Rule 144(k) (as amended or replaced) under the Securities Act.
“Registration
Rights Agreement” means that certain Registration Rights Agreement, dated as of
August 4, 2006, by and among the Company, the Guarantors and Deutsche Bank
Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
“Registration
Statement” means any registration statement of the Company and the Guarantors
that covers any of the Notes or the Exchange Notes (and the related guarantees,
if any) filed with the Commission under the Securities Act, including the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
“Shelf
Notice” has the meaning set forth in Section 4.20(k) hereof.
“Shelf
Registration” has the meaning set forth in Section 4.20(l) hereof.
“Solicitation”
means Company’s solicitation of consents from the Holders of the Notes to the
adoption of proposed amendments to the Indenture upon the terms and subject
to
the conditions set forth in the Amended and Restated Offer to Purchase and
Consent Solicitation Statement, dated as of July 30, 2007, and in the related
Letter of Transmittal and Consent.
“Termination
Date” means the date, if any, that the Offer and the Solicitation are terminated
by the Company.”
1.3 Amendment
of Article IV. Article IV of the Indenture is hereby amended by
adding the following covenant immediately after Section 4.19 of the
Indenture:
“Section
4.20. Registration Rights.
4
(a) If
the Company terminates the Offer and the Solicitation after consummation of
the
Current Exchange Offer, then, unless the Additional Exchange Offer would violate
applicable law or any applicable interpretation of the staff of the Commission,
the Company and the Guarantors shall use their commercially reasonable efforts
to file with the Commission, no later than the Filing Date, an Additional
Exchange Offer Registration Statement to exchange any and all of the Registrable
Notes for a like aggregate principal amount of the Exchange Notes guaranteed
by
the Guarantors that are identical in all material respects to the Initial Notes,
except that (i) the Exchange Notes shall contain no restrictive legend thereon
and (ii) the Exchange Notes shall not be entitled to any of the rights set
forth
in Section 4.20(m) hereof, and that are entitled to the benefits of the
Indenture, which shall be qualified under the TIA. The Additional
Exchange Offer shall comply in all material respects with all applicable tender
offer rules and regulations under the Exchange Act and other applicable
laws. The Company and the Guarantors shall (x) use their
commercially reasonable efforts to cause the Additional Exchange Offer
Registration Statement to be declared effective under the Securities Act on
or
before the Effectiveness Date; (y) keep the Additional Exchange Offer open
for at least 30 days (or longer if required by applicable law) after the date
that notice of the Additional Exchange Offer is mailed to Holders; and
(z) consummate the Additional Exchange Offer on or prior to the 120th day
following the Termination Date; provided, however, that if
such 120th day would otherwise fall on a day that is not a Business Day, then
such Additional Exchange Offer must be consummated not later than the next
succeeding Business Day.
(b) Each
Holder (including, without limitation, each Participating Broker-Dealer) who
participates in the Additional Exchange Offer will be required to represent
to
the Company and the Guarantors in writing (which may be contained in the
applicable letter of transmittal) that: (i) any Exchange Notes
acquired in exchange for Registrable Notes tendered are being acquired in the
ordinary course of business of the Person receiving such Exchange Notes, whether
or not such recipient is such Holder itself; (ii) at the time of the
commencement or consummation of the Additional Exchange Offer neither such
Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder has an arrangement or understanding with any
Person to participate in the “distribution” (within the meaning of the
Securities Act) of the Exchange Notes in violation of the provisions of the
Securities Act; (iii) neither the Holder nor, to the actual knowledge of
such Holder, any other Person receiving Exchange Notes from such Holder is
an
“affiliate” (as defined in Rule 405) of the Company or, if it is an
affiliate of the Company, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable and will
provide information to be included in the Shelf Registration Statement in
accordance with Section 5 of the Registration Rights Agreement in order to
have
their Notes included in the Shelf Registration Statement and benefit from the
provisions regarding Additional Interest in Section 4.20(m) hereof;
(iv) neither such Holder nor, to the actual knowledge of such Holder, any
other Person receiving Exchange Notes from such Holder is engaging in or
5
intends
to engage in a distribution of the Exchange Notes; and (v) if such Holder
is a Participating Broker-Dealer, such Holder has acquired the Registrable
Notes
as a result of market-making activities or other trading activities and that
it
will comply with the applicable provisions of the Securities Act (including,
but
not limited to, the prospectus delivery requirements thereunder) in connection
with any resale of the Exchange Notes.
(c) Upon
consummation of the Additional Exchange Offer in accordance with this
Section 4.20, the provisions of this Section 4.20 shall continue to apply
solely with respect to Registrable Notes that are Exchange Notes as to which
Section 4.20(k)(iii) hereof is applicable and Exchange Notes held by
Participating Broker-Dealers, and the Company and the Guarantors shall have
no
further obligation to register Registrable Notes (other than Exchange Notes
as
to which Section 4.20(k)(iii) hereof applies) pursuant to
Section 4.20(l) hereof.
(d) No
securities other than the Exchange Notes shall be included in the Additional
Exchange Offer Registration Statement.
(e) The
Company and the Guarantors shall include within the Prospectus contained in
the
Additional Exchange Offer Registration Statement a section entitled “Plan of
Distribution” which shall contain a summary statement of the positions taken or
policies made by the staff of the Commission with respect to the potential
“underwriter” status of any Participating Broker-Dealer, whether such positions
or policies have been publicly disseminated by the staff of the Commission
or
such positions or policies represent the prevailing view of the staff of the
Commission. Such “Plan of Distribution” section shall also expressly
permit, to the extent permitted by applicable policies and regulations of the
Commission, the use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including, to the extent permitted
by applicable policies and regulations of the Commission, all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes in compliance with
the Securities Act.
(f) The
Company and the Guarantors shall use their commercially reasonable efforts
to
keep the Additional Exchange Offer Registration Statement effective and to
amend
and supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as is
necessary to comply with applicable law in connection with any resale of the
Exchange Notes; provided, however, that such period shall not
be required to exceed 30 days or such longer period if extended pursuant to
the
last paragraph of Section 5 of the Registration Rights Agreement (the
“Applicable Period”).
6
(g) In
addition to the provisions set forth elsewhere in this Section 4.20, in
connection with the Additional Exchange Offer, the Company and the Guarantors
shall:
(1) mail,
or cause to be mailed, to each Holder of record entitled to participate in
the
Additional Exchange Offer a copy of the Prospectus forming part of the
Additional Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize
the services of a depositary for the Additional Exchange Offer with an address
in the Borough of Manhattan, The City of New York;
(3) permit
Holders to withdraw tendered Notes at any time prior to the close of business,
New York time, on the last Business Day on which the Additional Exchange Offer
remains open; and
(4) otherwise
comply in all material respects with all applicable laws, rules and
regulations.
(h) As
soon as practicable after the close of the Additional Exchange Offer, the
Company and the Guarantors shall:
(1) accept
for exchange all Registrable Notes validly tendered and not validly withdrawn
pursuant to the Additional Exchange Offer;
(2) cause
the depositary for the Additional Exchange Offer to deliver to the Trustee
for
cancellation all Registrable Notes so accepted for exchange; and
(3) cause
the Trustee to authenticate and deliver promptly to each Holder of Notes or
Exchange Notes, as the case may be, equal in principal amount to the Notes
of
such Holder so accepted for exchange; provided that, in the case of any
Notes held in global form by a depositary, authentication and delivery to such
depositary of one or more replacement Notes in global form in an equivalent
principal amount thereto for the account of such Holders in accordance with
the
Indenture shall satisfy such authentication and delivery
requirement.
(i) The
Additional Exchange Offer shall not be subject to any conditions, other than
that (i) the Additional Exchange Offer or the making of any exchange by a
Holder, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission; (ii) no action or proceeding
shall
7
have
been
instituted or threatened in any court or by any governmental agency with respect
to the Additional Exchange Offer which might materially impair the ability
of
the Company and the Guarantors to proceed with the Additional Exchange Offer,
(iii) no material adverse development shall have occurred in any existing
action or proceeding with respect to the Company and the Guarantors;
(iv) all governmental approvals shall have been obtained, which approvals
the Company and the Guarantors deem necessary for the consummation of the
Additional Exchange Offer; (v) the tender of Registrable Notes shall be
made in accordance with the Additional Exchange Offer; and (vi) each Holder
of Registrable Securities exchanged in the Additional Exchange Offer shall
have
made all of the representations required to be made pursuant to Section 4.20(b)
hereof.
(j) The
Exchange Notes shall be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture, with such changes
as are necessary to comply with the requirements of the Commission to effect
or
maintain the qualification thereof under the TIA, and which, in either case,
has
been qualified under the TIA or is exempt from such qualification and shall
provide that the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture.
(k) If,
(i) because of any change in law or in currently prevailing interpretations
of the staff of the Commission, the Company and the Guarantors are not permitted
to effect the Additional Exchange Offer, (ii) the Additional Exchange Offer
is not consummated within 120 days of the Termination Date; provided,
however, that if such 120th
day would
otherwise fall on a day that is not a Business Day then such Additional Exchange
Offer must be consummated not later than the next succeeding Business Day or
(iii) in the case of any Holder that participates in the Additional
Exchange Offer, such Holder does not receive Exchange Notes on the date of
the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such Holder as an affiliate of
the
Company or the Guarantors within the meaning of the Securities Act) and so
notifies the Company within 30 days after such Holder first becomes aware of
such restrictions, in the case of each of clauses (i) to and including (iii)
of
this sentence, then the Company and the Guarantors shall promptly deliver to
the
Holders and the Trustee written notice thereof (the “Shelf Notice”) and shall
file a Shelf Registration pursuant to Section 4.20(l)
hereof.
(l) If
a Shelf Notice is delivered as contemplated by Section 4.20(k) hereof,
then:
(i) The
Company and the Guarantors shall as promptly as practicable file with the
Commission a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Registrable Notes (the “Shelf
Registration”). The Company and the Guarantors shall use their
commercially reasonable efforts to file with the Commission the Shelf
Registration as promptly as practicable. The Shelf Registration shall
be on Form S-1 or another appropriate form
8
permitting
registration of such Registrable Notes for resale by Holders in the manner
or
manners designated by Holders of a majority of the aggregate principal amount
of
such Registrable Notes participating in the Shelf Registration (including,
without limitation, one or more underwritten offerings). The Company
and the Guarantors shall not permit any securities other than the Registrable
Notes and the Guarantees to be included in the Shelf Registration.
(ii) The
Company and the Guarantors shall use their commercially reasonable efforts
to
cause the Shelf Registration to be declared effective under the Securities
Act
on or prior to the Effectiveness Date and to keep the Shelf Registration
continuously effective under the Securities Act until the date that is two
years
from the Issue Date or such shorter period ending when all Registrable Notes
covered by the Shelf Registration have been sold or cease to be outstanding
in
the manner set forth and as contemplated in the Shelf Registration (the
“Effectiveness Period”); provided, however, that the
Effectiveness Period in respect of the Shelf Registration shall be extended
to
the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and shall be subject to reduction to the extent
that the applicable provisions of Rule 144(k) are amended or revised to
reduce the two year holding period set forth therein.
(iii) If the
Shelf Registration ceases to be effective for any reason at any time during
the
Effectiveness Period (other than because of the sale of all of the Notes
registered thereunder), the Company and the Guarantors shall use their
commercially reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days
of such cessation of effectiveness amend such Shelf Registration Statement
in a
manner to obtain the withdrawal of the order suspending the effectiveness
thereof.
(iv) The
Company and the Guarantors shall promptly supplement and amend the Shelf
Registration if required by the rules, regulations or instructions applicable
to
the registration form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Notes (or their counsel) covered
by such Registration Statement with respect to the information included therein
with respect to one or more of such Holders, or by any underwriter of such
Registrable Notes with respect to the information included therein with respect
to such underwriter.
(v) Each
Holder of Registrable Securities agrees that, upon receipt of any notice from
the Company or any Guarantor of the happening of any event of the kind described
in Section 5(c)(ii), 5(c)(iv)or 5(c)(v) of the Registration Rights Agreement,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Shelf Registration until such Holder’s receipt of the copies of
the
9
supplemented
or amended Prospectus contemplated by Section 5(j) of the Registration Rights
Agreement and, if so directed by the Company or any Guarantor, such Holder
will
deliver to the Company and the Guarantors all copies in its possession, other
than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Registrable Securities that is current at the time of receipt
of
such notice. If the Company or any Guarantor shall give any notice
pursuant to this Section 4.20(l)(v) to delay or suspend the disposition of
Registrable Securities pursuant to a Shelf Registration, the Company and the
Guarantors shall extend the period during which such Shelf Registration shall
be
maintained effective pursuant to this Indenture by the number of days during
the
period from and including the date of the giving of such notice to and including
the date when the Holders of such Registrable Securities shall have received
copies of the supplemented or amended Prospectus necessary to resume such
dispositions. The Company and the Guarantors may give any such notice
only twice during any 365-day period and any such delays and suspensions shall
not exceed 60 days in the aggregate and there shall not be more than two
suspensions in effect during any 365-day period.
(m) The
Company and the Guarantors agree that the Holders will suffer damages if the
Company and the Guarantors fail to fulfill their obligations under
Sections 4.20(a)-(l) hereof and that it would not be feasible to ascertain
the extent of such damages with precision. Accordingly, the Company
and the Guarantors agree that, as liquidated damages, the interest rate on
the
Notes will increase (“Additional Interest”) under the circumstances and to the
extent set forth below (each of which shall be given independent
effect):
(i) if
(A) neither the Additional Exchange Offer Registration Statement nor the Shelf
Registration has been filed on or prior to the Filing Date applicable thereto
or
(B) notwithstanding that the Company and the Guarantors have consummated or
will
consummate the Additional Exchange Offer, the Company and the Guarantors are
required to file a Shelf Registration and such Shelf Registration is not filed
on or prior to the Filing Date applicable thereto, then, commencing on the
day
after any such Filing Date, Additional Interest shall accrue on the principal
amount of the Notes at a rate of 0.25% per annum for the first 90 days
immediately following such applicable Filing Date, and such Additional Interest
rate shall increase by an additional 0.25% per annum at the beginning of each
subsequent 90 day period; or
(ii) if
(A) neither the Additional Exchange Offer Registration Statement nor the Shelf
Registration is declared effective by the Commission on or prior to the
Effectiveness Date applicable thereto or (B) notwithstanding that the
Company and the Guarantors have consummated or will consummate the Additional
Exchange Offer, the Company and the Guarantors are required to file a Shelf
Registration and such Shelf Registration is not declared effective by the
Commission on or prior to the Effectiveness Date applicable to such Shelf
Registration, then, commencing on the day after such
10
Effectiveness
Date, Additional Interest shall accrue on the principal amount of the Notes
at a
rate of 0.25% per annum for the first 90 days immediately following the day
after such Effectiveness Date, and such Additional Interest rate shall increase
by an additional 0.25% per annum at the beginning of each subsequent 90 day
period; or
(iii) if
(A) the Company and the Guarantors have not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms of the Additional
Exchange Offer on or prior to the 120th day after the Termination Date;
provided, however, that if such 120th day would otherwise fall
on a day that is not a Business Day, then such Additional Exchange Offer must
be
consummated not later than the next succeeding Business Day; or (B) if
applicable, a Shelf Registration has been declared effective and such Shelf
Registration ceases to be effective or usable by the Holders for any reason
for
30 days in the aggregate in any consecutive twelve-month period during the
Effectiveness Period, then Additional Interest shall accrue on the principal
amount of the Notes at a rate of 0.25% per annum for the first 90 days
commencing on the (x) 120th day after the Termination Date, in the case of
(A) above, or (y) the day such Shelf Registration ceases to be effective or
usable in the case of (B) above, and such Additional Interest rate shall
increase by an additional 0.25% per annum at the beginning of each such
subsequent 90 day period;
provided,
however, that (1) the Additional Interest rate on the Notes may not
accrue under more than one of the foregoing clauses (i)-(iii) at any one time
and at no time shall the aggregate amount of Additional Interest accruing exceed
in the aggregate 1.0% per annum; provided, further,
however, that (1) upon the filing of the applicable Additional
Exchange Offer Registration Statement or the applicable Shelf Registration
as
required hereunder (in the case of clause (i) above of this
Section 4.20(m)), (2) upon the effectiveness of the Additional
Exchange Offer Registration Statement or the applicable Shelf Registration
Statement as required hereunder (in the case of Section 4.20(m)(ii) hereof),
or
(3) upon the exchange of the Exchange Notes for all Notes tendered (in the
case of Section 4.20(m)(iii)(A) hereof), or upon the effectiveness of the
applicable Shelf Registration Statement which had ceased to remain effective
(in
the case of Section 4.20(m)(iii)(B) hereof), Additional Interest on the Notes
in
respect of which such events relate as a result of such clause (or the relevant
subclause thereof), as the case may be, shall cease to
accrue. Notwithstanding any other provision of this Section 4.20(m),
the Company and the Guarantors shall not be obligated to pay Additional Interest
required by Section 4.20(m)(i)(B), Section 4.20(m)(ii)(B) or Section
4.20(m)(iii)(B) hereof during any delay or suspension of the effectiveness
of a
Shelf Registration pursuant to Section 4.20(l)(v) hereof.
(n) The Company
and the Guarantors shall notify the Trustee within three Business Days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an “Event Date”). Any amounts of
Additional Interest due pursuant to Section 4.20(m) hereof will be payable
in
cash
11
semiannually
on each February 1 and August 1 (to the holders of record on the January 15
and
July 15 immediately preceding such dates), commencing with the first such date
occurring after any such Additional Interest commences to accrue. The
amount of Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the Registrable Notes,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on the
basis of a 360 day year comprised of twelve 30 day months and, in the
case of a partial month, the actual number of days elapsed), and the denominator
of which is 360. No Additional Interest shall accrue with respect to
Notes that are not Registrable Notes.
(o) In
connection with the filing of any Registration Statement pursuant to Sections
4.20(a)-(l) hereof, the Company and the Guarantors shall comply with the
provisions set forth in Section 5 of the Registration Rights
Agreement.”
Article
II.
Amendments
to the Indenture and the Notes
2.1 Amendment
of Sections 3.9 through 3.10. Sections 3.9 through 3.10 of the
Indenture, inclusive, are hereby deleted in their entirety and each Section
is
replaced with the following: “[intentionally omitted]”.
2.2 Amendment
of Sections 4.3 through 4.4. Sections 4.3 through 4.4 of the
Indenture, inclusive, are hereby deleted in their entirety and each Section
is
replaced with the following: “[intentionally omitted]”.
2.3 Amendment
of Sections 4.7 through 4.12. Sections 4.7 through 4.12 of the
Indenture, inclusive, are hereby deleted in their entirety and each Section
is
replaced with the following: “[intentionally omitted]”.
2.4 Amendment
of Sections 4.14 through 4.16. Sections 4.14 through 4.16 of the
Indenture, inclusive, are hereby deleted in their entirety and each Section
is
replaced with the following: “[intentionally omitted]”.
2.5 Amendment
of Sections 4.18 through 4.19. Sections 4.18 through 4.19 of the
Indenture, inclusive, are hereby deleted in their entirety and each Section
is
replaced with the following: “[intentionally omitted]”.
2.6 Amendment
of Section 5.1. Section 5.1(a)(2)-(4), Section 5.1(c)(3)-(4) and
the last paragraph of Section 5.1 of the Indenture are hereby deleted in its
entirety and is replaced with the following: “[intentionally
omitted]”.
12
2.7 Amendment
of Section 6.1. Sections 6.1(c)-(e) of the Indenture are hereby
deleted in their entirety and replaced with the following: “[intentionally
omitted]”.
2.8 Amendment
of Defined Terms. All terms defined in Sections 1.1 and 1.2 of
the Indenture and contained in the Articles, Sections and Clauses of the
Indenture deleted pursuant to Sections 2.1 through 2.7, inclusive, of this
Supplemental Indenture, but not otherwise used elsewhere in the Indenture,
are
hereby deleted in their entirety.
2.9 Amendment
of Section References. All references in the Indenture to the
Articles, Sections and Clauses of the Indenture deleted pursuant to this Article
II of this Supplemental Indenture are hereby deleted in their
entirety.
2.10 Amendment
to Notes. The Notes are hereby amended to delete all provisions
inconsistent with the amendments to the Indenture effected by this Article
II of
this Supplemental Indenture.
Article
III.
Effectiveness
3.1 Effectiveness
of this Supplemental Indenture. This Supplemental Indenture is
entered into pursuant to and consistent with Section 9.2 of the Indenture,
and
nothing herein shall constitute a waiver, amendment, modification or deletion
of
the Indenture requiring the approval of each Holder affected thereby pursuant
to
clauses (1) through (8) of the second paragraph of Section 9.2 of the
Indenture. Upon the execution of this Supplemental Indenture by the
Company, the Guarantors and the Trustee, the Indenture shall be amended and
supplemented in accordance herewith, and this Supplemental Indenture shall
form
a part of the Indenture for all purposes and each Holder shall be bound thereby;
provided, however, that the provisions of the Indenture referred
to in Article II above (such provisions being referred to as the “Article II
Provisions”) will remain in effect in the form they existed prior to the
execution of this Supplemental Indenture, and the waivers, amendments,
modifications and deletions to the Article II Provisions will not become
operative, and the terms of the Indenture will not be waived, amended, modified
or deleted, in each case, until the Acceptance.
Article
IV.
Miscellaneous
4.1 Continuing
Effect of the Indenture. Except as expressly provided herein, all
of the terms, provisions and conditions of the Indenture and the Notes
outstanding thereunder shall remain in full force and effect.
13
4.2 Reference
and Effect on the Indenture. On and after the Acceptance, each
reference in the Indenture to “the Indenture,” “this Indenture,” “hereunder,”
“hereof” or “herein” shall mean and be a reference to the Indenture as
supplemented by this Supplemental Indenture, unless the context otherwise
requires.
4.3 Trust
Indenture Act Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with a provision of the TIA or another
provision that would be required or deemed under such Act to be part of and
govern this Supplemental Indenture if this Supplemental Indenture were subject
thereto, the latter provision shall control. If any provision of this
Supplemental Indenture modifies or excludes any provisions of the TIA that
may
be so modified or excluded, the latter provision shall be deemed to apply to
this Supplemental Indenture as so modified or excluded, as the case may
be.
4.4 Governing
Law. THE VALIDITY AND INTERPRETATION OF THIS SUPPLEMENTAL
INDENTURE, THE INDENTURE, THE GUARANTEES, IF ANY, AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. EACH PARTY HERETO AGREES TO SUBMIT TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO
THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE GUARANTEES, IF ANY, AND THE
NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS IN RESPECT
OF SUCH SUIT OR ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE
GUARANTEES. EACH OF THE TRUSTEE, THE COMPANY AND ANY GUARANTOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. Nothing
herein shall affect the right of the Trustee or any Holder of the Notes to
serve
process in any other manner permitted by law or to commence legal proceedings
or
otherwise proceed against the Company or any Guarantor in any other
jurisdiction.
14
4.5 Separability. In
case any provision of this Supplemental Indenture shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
4.6 Counterpart
Originals. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
4.7 Headings. The
headings of the Articles and Sections of this Supplemental Indenture, which
have
been inserted for convenience of reference only, are not intended to be
considered a part of this Supplemental Indenture and shall in no way modify
or
restrict any of the terms or provisions hereof.
15
IN
WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be
duly
executed as of the date first written above.
| MXENERGY HOLDINGS INC. | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx | |||
| Title: President and CEO | |||
| MXENERGY CAPITAL HOLDINGS CORP. | |||
| MXENERGY CAPITAL CORP. | |||
| ONLINE CHOICE INC. | |||
| MXENERGY GAS CAPITAL HOLDINGS CORP. | |||
| MXENERGY ELECTRIC CAPITAL HOLDINGS CORP. | |||
| MXENERGY SERVICES INC. | |||
| XXXXXXXXX.XXX INC. | |||
| MXENERGY GAS CAPITAL CORP. | |||
| MXENERGY ELECTRIC CAPITAL CORP. | |||
| MXENERGY INC. | |||
| MXENERGY ELECTRIC INC. | |||
|
|
By: |
/s/
Xxxxxxx
Xxxxx
|
||
|
|
Name:
Xxxxxxx Xxxxx
|
|||
|
|
Title:
President and CEO
|
| LAW
DEBENTURE
TRUST COMPANY OF NEW YORK, as Trustee |
|||
|
|
By:
|
/s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |||
| Title: Vice President | |||
16
