Exhibit 10.3


 


AMENDMENT NO. 3


 


This Amendment No. 3
dated as of June 8, 2009 (this “Amendment”) is among (a) Société
Générale, as Administrative Agent (in such capacity, with its successors and
assigns, the “Credit Agreement Representative”) for the Credit Agreement
Secured Parties, (b) Société Générale, as a Secured Counterparty (“Secured
Counterparty”), (c) Denham Commodity Partners Fund LP (formerly Sowood
Commodity Partners Fund LP), a Delaware limited partnership (together with its
successors and assigns, “Sowood”), and (d) MxEnergy Holdings Inc.,
a Delaware corporation, MxEnergy Inc., a Delaware corporation (“MxEnergy”),
MxEnergy Electric Inc., a Delaware corporation (“MxElectric”, and
together with MxEnergy, the “Borrowers”), and certain of their respective
subsidiaries party thereto (the “Intercreditor Parties”).


 


INTRODUCTION


 


A.                                   The Borrowers,
the Parent, the other Loan Parties, the Credit Agreement Representative and
certain financial institutions are parties to a Third Amended and Restated
Credit Agreement dated as of November 17, 2008 (as amended, supplemented,
restated, or otherwise modified from time to time, the “Restated Credit
Agreement”) pursuant to which such financial institutions have agreed to
make loans and extend other financial accommodations to the Borrowers.


 


B.                                     MxEnergy,
certain of the other Loan Parties, and the Secured Counterparty are parties to
the Master Transaction Agreement dated as of August 1, 2006, as amended
through the Twelfth Amendment to Master Transaction Agreement dated as of June 8,
2009 (the “Twelfth Amendment to Master Transaction Agreement”) pursuant
to which the Secured Counterparty, among other things, provides natural gas
hedging arrangements for MxEnergy (the original Master Transaction Agreement,
as amended through the Twelfth Amendment to Master Transaction Agreement and as
further amended, supplemented, restated, or otherwise modified from time to
time, the “Master Transaction Agreement”).


 


C.                                     The Borrowers
have requested, and, upon this Amendment becoming effective, the other
Intercreditor Parties have agreed, that certain provisions of the Subordination
and Intercreditor Agreement dated as of December 19, 2005, as amended by
Amendment No. 1 dated as of August 1, 2006 and Amendment No. 2
dated as of November 7, 2008 (the original Intercreditor Agreement as so
amended, the “Intercreditor Agreement”) among the Intercreditor Parties
be amended in the manner provided for in this Amendment.


 


Therefore, the parties to
this Amendment hereby agree as follows:


 


Section 1.                                            Defined Terms. 
Except to the extent specifically provided otherwise herein, capitalized
terms not defined herein but defined in the Intercreditor Agreement and used
herein shall have the meanings given to such terms in the Intercreditor
Agreement.


 


Section 2.                                            Amendment to Intercreditor Agreement. 
In Section 1 of the Intercreditor Agreement, the definition of “Secured
Counterparty Primary Collateral” is amended in its entirety to read as follows:


 

















 


“Secured Counterparty
Primary Collateral” means, with respect to each Secured Counterparty, all
rights, whether now owned or hereafter acquired, and proceeds therefrom under (a) all
contracts of the Borrower or any of its Subsidiaries for the sale of
electricity or gas or related products to one of such Loan Party’s customers (i) for
which such Secured Counterparty provides (A) any of the electricity or gas
or related products or (B) commodity price hedging or futures sales of
commodities, and (ii) in which a Lien is granted or purported to be
granted to such Secured Counterparty as security for any Secured Counterparty
Obligation owing to such Secured Counterparty, excluding, however, accounts (as
defined in the UCC) with respect to such contracts, whether now owned or
hereafter acquired, and all proceeds from such accounts and (b) all
Collateral Accounts and Collateral Account Property.


 


Section 3.                                            Conditions to Effectiveness. 
This Amendment shall become effective on the date (the “Amendment
Effective Date”) on which all Intercreditor Parties shall have executed and
delivered this Amendment.


 


Section 4.                                            Miscellaneous.


 


(a)                                  Representation and Warranties. 
Each Intercreditor Party hereby represents and warrants to each other
Intercreditor Party, as of the Amendment Effective Date, that:


 


(i)                                     Corporate Power; Authorization;
Enforceable Obligations.


 


(1)                                  Such Intercreditor Party has the
corporate power and authority, and the legal right, to execute, deliver, and
perform its obligations under this Amendment, and has taken all necessary
corporate or other organizational action to authorize the execution, delivery
and performance of this Amendment.


 


(2)                                  No consent or authorization of, approval
by, notice to, filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the execution and
delivery of this Amendment or with the performance, validity or enforceability
of this Amendment.


 


(3)                                  This Amendment has been duly executed and
delivered on behalf of such Intercreditor Party.


 


(4)                                  This Amendment constitutes a legal, valid
and binding obligation of such Intercreditor Party, enforceable against such
Intercreditor Party in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting the enforcement of creditors’
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.


 

















 


(ii)                                  No Legal Bar. 
The execution, delivery and performance of this Amendment will not
violate any applicable law or contractual obligation of such Intercreditor
Party and will not result in, or require, the creation or imposition of any
Lien on any of its or their respective properties or revenues pursuant to any
such applicable law or contractual obligation.


 


(b)                                 Costs and Expenses. 
The Borrowers agree to pay all of the out-of-pocket costs and reasonable
expenses incurred by the other Intercreditor Parties in connection with this Amendment,
any other documents prepared in connection herewith and the transactions
contemplated hereby, including, without limitation, the reasonable fees and
disbursements of its counsel.


 


(c)                                  No Other Amendments; Confirmation. 
Except as expressly amended, modified and supplemented hereby, the
provisions of the Intercreditor Agreement are and shall remain in full force
and effect.


 


(d)                                 Governing Law. 
This Amendment and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the
laws of the State of New York, without regard to principles of conflicts of
laws thereof (other than Sections 5-1401 and 5-1402 of the New York General
Obligations Law).


 


(e)                                  Counterparts. 
This Amendment may be executed by one or more of the Intercreditor
Parties on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.  This Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.


 

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.


 


	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Credit Agreement Representative for and on behalf of the Credit
  Agreement Secured Parties

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/BARBARA
  PAULSEN

  
	
   

  	
  Name:

  	
   

  	
  Barbara
  Paulsen

  
	
   

  	
  Title:

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/CHUNG-TAEK
  OH

  
	
   

  	
  Name:

  	
   

  	
  Chung-Taek
  Oh

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Secured Counterparty

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  GONZAGUE BATAILLE

  
	
   

  	
  Name:

  	
   

  	
  Gonzague
  Bataille

  
	
   

  	
  Title:

  	
   

  	
  Managing
  Director

  Head
  of Commodity Markets

  The
  Americas

  



 

















 


	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/CHAITU
  PARIKH

  
	
   

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/CHAITU
  PARIKH

  
	
   

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/CHAITU
  PARIKH

  
	
   

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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.

  
	
   

  	
  INFOMETER.COM
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/CHAITU
  PARIKH

  
	
   

  	
   

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/CHAITU
  PARIKH

  
	
   

  	
   

  	
  Vice
  President and Chief Financial Officer

  



 

















 


	
   

  	
  DENHAM
  COMMODITY PARTNERS FUND LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  DENHAM
  COMMODITY PARTNERS GP LP, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Denham
  GP LLC, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/JOHN
  P. COLLINS

  
	
   

  	
   

  	
  John
  Collins

  
	
   

  	
   

  	
  Authorized
  Person