Exhibit 10.3


 


SEVENTH AMENDMENT TO

MASTER TRANSACTION AGREEMENT


 


This Seventh
Amendment to Master Transaction Agreement (this “Amendment”), dated as
of November 7, 2008 (the “Amendment Date”), by and among MXenergy
Inc., a Delaware corporation (the “Counterparty”), MXenergy Holdings
Inc. (the “Parent”) and certain Subsidiaries thereof, as guarantors
(collectively, the “Guarantors”), and Société Générale, as hedge provider
(the “Hedge Provider”).


 


PRELIMINARY STATEMENTS


 


A.                                   Reference
is made to each of (i) the Master Transaction Agreement, dated as of August 1,
2006 (as amended by (A) the First Amendment to Master Transaction
Agreement dated as of April 6, 2007, (B) the Second Amendment to
Master Transaction Agreement dated as of December 17, 2007, (C) the
Third Amendment to Master Transaction Agreement dated as of May 12, 2008, (D) the
Fourth Amendment to Master Transaction Agreement dated as of July 31,
2008, (E) the Fifth Amendment to Master Transaction Agreement dated as of September 30,
2008, and (F) the Sixth Amendment to Master Transaction Agreement dated as
of November 4, 2008 (the “Sixth Amendment”) (the original Master
Transaction Agreement, as amended through the Sixth Amendment, being  herein referred to as the “Master
Transaction Agreement”), among the Counterparty, the Guarantors and the Hedge
Provider, (ii) the ISDA Master Agreement (as defined in the Master
Transaction Agreement and amended to date), and (iii) the Credit Agreement
(as defined in the Master Transaction Agreement and amended to date);


 


B.                                     The
Counterparty and the Guarantors have requested that the Counterparty amend the Master
Transaction Agreement and the ISDA Master Agreement to defer certain payments
and agree to release certain collateral in order to permit the Counterparty and
its affiliates to modify its financing under the Credit Agreement and to allow
time for the Counterparty and its affiliates to 
explore a possible sale, merger or other infusion of equity;


 


C.                                     The
Hedge Provider is willing to amend the Master Transaction Agreement on the terms
and conditions set forth herein; and


 


D.                                    The
Hedge Provider and the Counterparty have agreed to certain other matters
relating to the foregoing as set forth herein.


 


AGREEMENT


 


NOW THEREFORE,
in consideration of the premises and the covenants and agreements contained
herein, the parties hereto hereby agree as follows:


 


Section 1.                                            Definitions.  Unless otherwise specifically provided
herein, capitalized terms used but not defined herein shall have the meanings
specified in the Master Transaction Agreement or in the ISDA Master Agreement
(as applicable).


 


Section 2.                                            Amendments
to Master Transaction Agreement.  The
Master Transaction Agreement is hereby amended, effective as of the Amendment
Date, as follows:


 


1

















 


(a)                                  The
definition of “Applicable Hedging Transaction Spread” is hereby amended to
mean with respect to any Natural Gas Hedging Transaction entered into on or
after the Amendment Date, the execution/credit spread, expressed in cents per
MMBtu set forth opposite the applicable term to maturity below:


 


	
  Months

  	
   

  	
  Nymex

  Cents /

  MMBtu

  	
   

  	
  Basis

  Cents /

  MMBtu

  	
   

  
	
  0-6 Months

  	
   

  	
  2.00

  	
   

  	
  0.50

  	
   

  
	
  7-18 Months

  	
   

  	
  3.00

  	
   

  	
  1.00

  	
   

  



 


(b)                                 The
following definition of “Bridge Financing” is hereby added, to mean a
combination of at least $10,000,000 in the aggregate in unsecured loans and/or
a non-voting, first-in, last-out tranche of the Revolving Commitments (as
defined in the Credit Agreement) from one or more of the holders of the equity
interests in the Parent that satisfies the requirements of the Lenders.


 


(c)                                  The
definition of “Deferred Payment Date” (as defined in the Sixth
Amendment) is hereby amended to mean the earlier of (i) November 19,
2008, or (ii) the date of closing of the Bridge Financing (rather than November 15,
2008), such that each Specified Payment, together with interest thereon as
provided in the Sixth Amendment, shall be payable in full on such deferred date.


 


(d)                                 The
definition of “First Lien Negative Covenants” is hereby amended to refer
to the negative covenants and financial covenants set forth in Article VI
of the Credit Agreement, as amended through the Amendment Date (rather than the
Credit Agreement as in effect on the Closing Date).


 


(e)                                  The
following definition of “Liquidity Event”  is hereby added, to mean: (i) a sale or
merger of the Loan Parties (as defined in the Credit Agreement) that results in
all of the Obligations (as defined in the Credit Agreement) being indefeasibly
repaid and terminated in full, (ii) the indefeasible repayment and
termination in full of all such Obligations, or (iii) an equity
contribution into the Borrowers (as defined in the Credit Agreement) in an
amount no less than $75,000,000, which shall be made on terms and conditions
satisfactory to the Administrative Agent and the Majority Lenders in their sole
discretion.


 


(f)                                    The
following definition of “Milestone” is hereby added:  the obligation of the Counterparty to satisfy
each of the following requirements no later than the applicable dates set forth
below:


 


(i)             December 15,
2008, the Counterparty shall retain an investment bank to obtain a Liquidity
Event with respect to the Loan Parties (as defined in the Credit Agreement);


 


2

















 


(ii)          December 31, 2008,
the Counterparty shall deliver to the Hedge Counterparty, the Administrative
Agent and the Lenders a plan for a proposed Liquidity Event acceptable to all
of such parties that does not contemplate any financing from any of the
Lenders;


 


(iii)  January 31,
2009, the Counterparty shall deliver to the Hedge Counterparty, the
Administrative Agent and the Lenders an executed, non-binding letter of intent acceptable
to all of such parties for a Liquidity Event that does not contemplate any
financing from any of the Lenders;


 


(iii)       March 31, 2009, the
Borrowers shall deliver to the Hedge Counterparty, the Administrative Agent and
the Lenders an executed contract for a Liquidity Event acceptable to all of
such parties; and


 


(iv)      May 31, 2009, a
Liquidity Event shall be consummated.


 


(g)                                 Section 2.01
of the Master Transaction Agreement is hereby amended (i) to change the
maximum maturity or expiration of each Natural Gas Hedging Transaction to June 30,
2010 (rather than a term not to exceed 39 months), and (ii) to add a
requirement that all payment dates under each Natural Gas Hedging Transaction (other
than basis swaps) be the third Business Day of each month.


 


(h)                                 Section 2.06(a) of
the Master Transaction Agreement is hereby amended (i) to change the limit
on Natural Gas Hedging Position Volumes in respect of all Natural Gas Hedging
Transactions from time to time in effect between the Hedge Provider and the
Counterparty (as determined by the Hedge Provider) to 25 Bcf (rather than 65
Bcf), and (ii) new Natural Gas Hedging Transactions may be entered into after
March 31, 2009 only if the Counterparty or any successor to the existing
Counterparty at such time is acceptable to the Hedge Provider in its sole
discretion.


 


(i)                                     The
provisions relating to NYMEX Put Options in Paragraph 6 of the Sixth Amendment
are hereby amended to provide that (i) the Hedge Provider will sell, close
out, liquidate, terminate or otherwise cancel, in whole, all NYMEX Put Options
on the Amendment Date, at which time the Hedge Provider will calculate and provide
to the Counterparty the amount of Counterparty NYMEX Put Option Termination
Payment Obligations, and (ii) if and for so long as no Specified Event,
and no Event of Default or Termination Event on the part of any Transaction
Party has occurred and is continuing, the Counterparty shall pay and satisfy
the Counterparty NYMEX Put Option Termination Payment Obligations in
installments, in accordance with the following table (each payment date set
forth below being a “Counterparty NYMEX Put Option Termination Payment
Obligation Payment Date”), together with interest on each such Counterparty
NYMEX Put Option Termination Payment Obligation determined at the Non-Default
Rate from (and including) the related NYMEX Put Option Termination Payment Date
to (but excluding) the Counterparty NYMEX Put Option Termination Payment
Obligation Payment Date:


 


3

















 




	
  Counterparty NYMEX Put Option

  Termination Payment Obligation

  Payment Date

  	
   

  	
  Monthly Percentage Payable of Total

  Counterparty NYMEX Put Option

  Termination Payment Obligations

  	
   

  
	
  28-Nov-08

  	
   

  	
  5

  	
  %

  
	
  31-Dec-08

  	
   

  	
  7

  	
  %

  
	
  30-Jan-09

  	
   

  	
  7

  	
  %

  
	
  27-Feb-09

  	
   

  	
  7

  	
  %

  
	
  31-Mar-09

  	
   

  	
  7

  	
  %

  
	
  30-Apr-09

  	
   

  	
  23

  	
  %

  
	
  29-May-09

  	
   

  	
  22

  	
  %

  
	
  30-Jun-09

  	
   

  	
  22

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  100

  	
  %

  






 


(j)                                     The
following Specified Events are hereby added to Section 7.01:


 


(i)                                     Failure
of the Counterparty to receive the proceeds of the Bridge Financing by November 17,
2008 (or such later date as the Hedge Provider may approve).


 


(j)                                     Failure
of the Counterparty to satisfy the requirements of any Milestone.


 


Section 3.                                            Conditions
to Effectiveness.  This Amendment
shall be effective on the date when the Hedge Provider shall have received each
of the following, in form and substance satisfactory to the Hedge Provider
(such date, the “Amendment Effective Date”):


 


(a)                                  counterparts of this
Amendment, duly executed and delivered by the Counterparty and the Guarantors;


 


(b)                                 counterparts of the Third
Amendment to the ISDA Master Agreement, dated as of the Amendment Date, duly
executed and delivered by the Counterparty and the Guarantors;


 


(c)                                  a copy of a fully
executed commitment for the Bridge Financing;


 


(d)                                 evidence
of corporate authority satisfactory to the Hedge Provider, which may include an
opinion of outside counsel, regarding the authority of Counterparty and all
Guarantors to execute and deliver this Amendment and the Third Amendment to
ISDA Master Agreement and to fulfill their respective obligations hereunder and
thereunder; and


 


(e)                                  evidence
satisfactory to the Hedge Provider of any and all third party consents required
in connection with this Amendment; and


 


(f)                                    evidence
satisfactory to the Hedge Provider that the Counterparty has purchased natural
gas put option contracts traded on the New York Mercantile Exchange to hedge
market risk incurred by the Counterparty under and in connection with Natural
Gas Hedging


 


4

















 


Transactions
between the Hedge Provider and the Counterparty, where the strike price is
equal to the price deck used in the Counterparty’s November 4, 2008 Lender’s
presentation under the “$1.50 Decrease in Nymex Price” scenario (with actual
costs to be based on price and time of execution and payments settled monthly
on a deferred basis, as estimated below in the following table):


 


	
  Month

  	
   

  	
  MX Swap

  Position

  (Contracts)

  	
   

  	
  Put Strike

  	
   

  	
  Expiry Date

  	
   

  	
  Deferred Settlement

  Date

  	
   

  
	
  Dec08

  	
   

  	
  306.00

  	
   

  	
  4.93

  	
   

  	
  21-Nov-08

  	
   

  	
  2-Dec-08

  	
   

  
	
  Jan09

  	
   

  	
  114.00

  	
   

  	
  5.23

  	
   

  	
  24-Dec-08

  	
   

  	
  6-Jan-09

  	
   

  
	
  Feb09

  	
   

  	
  144.00

  	
   

  	
  5.30

  	
   

  	
  27-Jan-09

  	
   

  	
  4-Feb-09

  	
   

  
	
  Mar09

  	
   

  	
  152.00

  	
   

  	
  5.25

  	
   

  	
  24-Feb-09

  	
   

  	
  4-Mar-09

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
  716.00

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Section 4.                                            Release
of Collateral.  On the Amendment
Date, the Hedge Provider will execute and deliver in escrow, to be held until
the Deferred Payment Date, the Amendment No.2 to Intercreditor Agreement,
provided that such Amendment No.2 to Intercreditor Agreement will not become
effective until (a) execution and delivery by all other parties thereto,
and (b) Hedge Provider’s receipt of payment in full in immediately
available funds on the Deferred Payment Date of all Specified Payments and
accrued interest thereon.


 


Section 5.                                            Waiver
and Release.  Without limiting any
other term or provision of this Amendment or any other Transaction Document,
each Transaction Party hereby voluntarily, knowingly, irrevocably, unconditionally,
absolutely and permanently waives, releases, dismisses, cancels, terminates and
forever discharges (collectively, the “Specified Releases”) the Hedge
Provider, each of its Affiliates and each of its and their respective agents,
officers, directors, managers, members, partners, employees, contractors,
representatives, advisors, attorneys and agents, and each of their respective successors,
assigns and representatives (each a “Released Party” and collectively,
the “Released Parties”), from any and all claims, inferences,
complaints, cross-complaints, filings, disputes, grievances, demands, duties,
actions, causes of action, defenses, counterclaims, offset, damages, costs,
expenses, liabilities, obligations, losses and similar items of any kind or
character whatsoever, in each case whether known or unknown, anticipated or
unanticipated, suspected or unsuspected, actual or contingent, express or
implied, or conditional, direct or indirect, at law or in equity, or otherwise,
irrespective of whether any of the foregoing arise out of contract, tort,
violation of law or regulations, or otherwise (collectively, the “Released
Items”):


 


(a)                                  with respect to any Released
Items arising out of, from or in connection with the Master Transaction
Agreement, any other Transaction Document, any Transaction, or any related
matter, the Specified Releases shall apply to the Released Parties with respect
to any and all Released Items now existing or arising or originating at any
time prior to the Amendment Effective Date; and


 


5

















 


(b)                                 with respect to any Released
Items arising out of, from or in connection with any Specified Event of Default
and any Financial Covenant Default, including the negotiation, preparation,
execution, delivery or performance of this Amendment, the Specified Releases
shall apply to the Released Parties with respect to any and all Released Items
now existing or arising or originating at any time prior to or following the
date hereof.


 


Section 6.                                            Representations
and Warranties.  Each Transaction
Party hereby jointly and severally represents and warrants to the Hedge
Provider that, as of the Amendment Date and as of the Amendment Effective Date:


 


(a)                                  all representations
and warranties of such Transaction Party contained in the Master Transaction
Agreement and any other Transaction 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 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);


 


(b)                                 no Specified Event, and
no Event of Default, Termination Event or Third Party Hedge Agreement Specified
Event on the part of any Transaction Party, has occurred and is continuing;


 


(c)                                  no authorization,
approval, consent, waiver or other action by, and no notice to or filing with,
any Governmental Authority or any other Person is required for the due
execution, delivery and performance by any Transaction Party of this Amendment;


 


(d)                                 this Amendment has
been duly authorized by all necessary corporate or other organizational action
of each Transaction Party and has been duly executed and delivered by each
Transaction Party; and


 


(e)                                  this Amendment and
the Master Transaction Agreement (as amended by this Amendment) constitutes a
legal, valid and binding obligation of each Transaction Party, enforceable
against each Transaction Party in accordance with its terms.


 


Section 7.                                            Consent
of Guarantors; Confirmation of Guarantees and Transaction Documents.  Each Guarantor hereby consents to the
execution, delivery and performance of this Amendment and hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the Guarantee
contained in Article VIII of the Master Transaction Agreement and the
terms and provisions of each other Transaction Document are, and each of the
same shall continue to be, in full force and effect and are hereby ratified and
confirmed in all respects.


 


Section 8.                                            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 9.                                            Entire
Agreement; Transaction Document.  Except
to the extent specifically modified and amended by this Amendment, the Master
Transaction Agreement shall remain in full force and effect and is hereby
ratified and confirmed.  This Amendment,
the Master Transaction Agreement and the other Transaction Documents constitute
the entire


 


6

















 


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.  This Amendment is and shall be deemed to be a
Transaction Document in all respects and for all purposes.


 


Section 10.                                      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 11.                                      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 12.                                      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.


 


Section 13.                                      Legal
Fees.  Counterparty and the
Guarantors shall pay promptly upon request by the Hedge Provider, all legal
fees incurred by the Hedge Provider in connection with this Amendment and the
Third Amendment to the ISDA Master Agreement, which legal fees shall be deemed
to be Obligations arising under the ISDA Master Agreement.


 


Section 14.                                      No
Novation.  The parties intend that
the execution and deliver of this Amendment and the Third Amendment to the ISDA
Master Agreement shall not constitute a novation of either Agreement or any
Transactions thereunder.


 


[remainder of this page intentionally
left blank]


 


7

















 


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
Date.


 


	
   

  	
  COUNTERPARTY:

  
	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Name: Chaitu Parikh

  
	
   

  	
  Title: Vice President and CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
  ONLINE CHOICE INC.

  
	
   

  	
  MXENERGY GAS CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY GAS CAPITAL CORP.

  
	
   

  	
  MXENERGY ELECTRIC CAPITAL CORP.

  
	
   

  	
  MXENERGY CAPITAL HOLDINGS CORP.

  
	
   

  	
  MXENERGY CAPITAL CORP.

  
	
   

  	
  MXENERGY SERVICES INC.

  
	
   

  	
  INFOMETER.COM INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Chaitu Parikh

  
	
   

  	
  Name:  Chaitu Parikh

  
	
   

  	
  Title:  Vice President and CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HEDGE PROVIDER:

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Gonzague
  Bataille

  
	
   

  	
  Name:  Gonzague Bataille

  
	
   

  	
  Title:  Managing Director

  



 


Signature Page to Seventh Amendment to Master Transaction Agreement