Exhibit 10.11


 


AMENDED
AND RESTATED


 


ENERGY
MARKETING AGREEMENT


 


for


 


Natural
Gas


 


By and
between


 


Virginia
Power Energy Marketing, Inc.


a Virginia
corporation with offices at


120 Tredegar
Street


Richmond, VA  23219


Telephone:  804.787.6051


Fax:  804.787.6467


 


and


 


MxEnergy Inc.


a Delaware
corporation with offices at


595 Summer Street


Stamford, CT  06901


Telephone:
203.356.1318


Fax: 203.975.9659


 


CONFIDENTIAL


 


 


Effective
Date:  December 15, 2005


 

















 


TABLE OF CONTENTS


 


	
  Article 1
  Definitions

  	
   

  	
  1

  
	
  Article 2
  Nature of Relationship

  	
   

  	
  4

  
	
  Article 3
  Purchase Transactions

  	
   

  	
  6

  
	
  Article 4
  Sale Contracts

  	
   

  	
  9

  
	
  Article 5
  Provision of Credit; Original Agreement Security Interest

  	
   

  	
  10

  
	
  Article 6
  Reporting Obligations

  	
   

  	
  11

  
	
  Article 7
  Fees

  	
   

  	
  12

  
	
  Article 8
  Lender Financing

  	
   

  	
  12

  
	
  Article 9
  Right to Net

  	
   

  	
  13

  
	
  Article
  10 New Opportunities and Non-Solicitation

  	
   

  	
  13

  
	
  Article
  11 Representations and Warranties

  	
   

  	
  13

  
	
  Article
  12 Indemnification

  	
   

  	
  14

  
	
  Article
  13 Limitation of Liability

  	
   

  	
  15

  
	
  Article
  14 Events of Default; Remedies

  	
   

  	
  15

  
	
  Article
  15 Guaranty

  	
   

  	
  17

  
	
  Article
  16 Miscellaneous

  	
   

  	
  17

  



 


Exhibits


 


	
  Exhibit 1

  	
  ISDA Agreement &
  Schedule

  
	
  Exhibit 2

  	
  Master Agreement

  
	
  Exhibit 3

  	
  “Sale Contract” –
  End-user Base Agreement & Ordering Exhibit

  
	
  Exhibit 4

  	
  Security Agreement

  
	
  Exhibit 5

  	
  Master Netting
  Agreement

  
	
  Exhibit 6

  	
  Approved Local
  Distribution Companies

  
	
  Exhibit 7

  	
  Notices

  
	
  Exhibit 8

  	
  Transfer Price Schedule

  
	
  Exhibit 9

  	
  Form of Standby Letter of Credit

  
	
  Exhibit 10

  	
  Form of Dominion Guaranty

  



 

















 


THIS AMENDED AND RESTATED ENERGY MARKETING
AGREEMENT together with all exhibits and any written
supplements hereto (this “Agreement”) is made and entered into as of this 15th
day of December 2005 (the “Effective Date”), by and between VIRGINIA POWER
ENERGY MARKETING, INC., a Virginia corporation (“Provider”), and MxEnergy Inc.,
a Delaware corporation (“Client”). Each of Provider and Client may be referred
to herein individually as a “Party” or collectively as “Parties”.


 


WHEREAS,
Provider is engaged in the business of purchasing and selling natural gas;


 


WHEREAS,
Client is engaged in the retail aggregation of natural gas customers;


 


WHEREAS,
the Parties previously entered into an Energy Marketing Agreement dated as of
the 18th day of September 2002 (the “Original Agreement”), pursuant to which
the Client agreed to purchase natural gas from Provider, and Provider agreed to
provide to Client certain credit facilities to assist Client in the purchase of
natural gas from Provider and in Client’s sale of natural gas to its various
retail customers; and


 


WHEREAS,
the Parties now desire to amend and restate the Original Agreement in its
entirety as hereinafter provided.


 


NOW, THEREFORE, in consideration
of the mutual covenants and promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree to amend and restate the Original
Agreement in its entirety to read as follows:


 


ARTICLE
1

DEFINITIONS


 


1.1                                 “Affiliate” means (i)
any Person that directly, or indirectly through one or more intermediaries,
controls the Client (a “Controlling Person”) or (ii) any Person (other than the
Client) which is controlled by or is under common control with a Controlling
Person. As used herein, the term “control” means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.


 


1.2                                 “Approved Third Party
Seller” has the meaning set forth in Section 3.2(C).


 


1.3                                 “Bankrupt” or “Bankruptcy”
means, with respect to a Person, (i) the commencement of any voluntary or
involuntary case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to such Person, or 


 

















 


seeking to adjudicate such Person a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to such Person or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it, or for all or any substantial part of its assets, (ii)  the making of a general assignment for the
benefit of such Person’s creditors; (iii) the inability of such Person to, or
the admission by such Person of its inability to, pay its debts as they become
due.


 


1.4                                 “Business Day” means
any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. A
Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local
time for the relevant Party’s principal place of business. The relevant Party,
in each instance unless otherwise specified, shall be the Party to whom the
notice, Payment or delivery is being sent and by whom the notice or Payment or
delivery is to be received.


 


1.5                                 “Commercial Customer”
means an entity that is neither a residential nor industrial purchaser of
natural gas up to a total aggregate amount of 
50,000 MMBtu per year.


 


1.6                                 “Customer” means (1)
any residential purchaser of natural gas; (2) any Small Commercial Customer;
(3) any Industrial Customer or (4) any Governmental Entity residing in the
Specified Geographic Region and who agrees to purchase natural gas from Client.


 


1.7                                 “Event of Default” has
the meaning set forth in Section 14.1.


 


1.8                                 “Governmental Entity”
means any federal, state, local or foreign government or any court of competent
jurisdiction, administrative or regulatory agency or commission or other governmental
authority or instrumentality, domestic or foreign.


 


1.9                                 “Industrial Customer”
means any entity that is a purchaser of natural gas in excess of a total
aggregate amount of 50,000 MMBtu per year.


 


1.10                           “Intercreditor Agreement”
means that certain Subordination and Intercreditor Agreement dated as of
December __, 2005 by and among Societe Generale, as Administrative Agent,
Virginia Power Energy Marketing, Inc., Sowood Commodity Partners Fund, LP,
MxEnergy Holdings Inc., MxEnergy, Inc., MxEnergy Electric Inc. and Other Loan
Parties


 


1.11                           “ISDA Agreement &
Schedule” means the International Swaps and Derivatives Association Agreement
and accompanying Schedule, excluding the Credit Support Annex, executed
concurrently with the Original Agreement and a copy of which is attached hereto
as Exhibit 1.


 


2

















 


1.12                           “Local Distribution Company”
(“LDC”) means any of the approved local natural gas utilities listed in Exhibit
6.


 


1.13                           “Lockbox Agreement” means
the executed controlled account agreement attached as Exhibit 5 to the Original
Agreement.


 


1.14                           “Master Agreement” means the
North American Energy Standards Board, Inc. (“NAESB”) Base Contract for Sale
and Purchase of Natural Gas version April 19, 2002 executed concurrently with
the Original Agreement and a copy of which is attached hereto as Exhibit 2.


 


1.15                           “Monthly Purchase
Obligations” means, with respect to a specified calendar month, the aggregate
Purchase Obligations incurred for such month.


 


1.16                           “Monthly Sale Obligations”
means, with respect to a specified calendar month, the aggregate Sale
Obligations incurred for such month.


 


1.17                           “MMBtu” means one million
British Thermal Units.


 


1.18                           “Payment” or “Payment
Obligations” means, as the context may require, (i) any and all obligations
incurred by a Party to transfer cash to the other Party, whether by netting or
otherwise, under the Master Agreement, the ISDA Agreement & Schedule and
any repayment or prepayment of an extension of credit under the aforementioned
agreements or (ii) any and all obligations incurred by a Party to transfer cash
to a third party in connection with its obligations under this Agreement.


 


1.19                           “Person” means an
individual, a corporation, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.


 


1.20                           “Purchase Transaction” means
an agreement for the purchase of natural gas, whether physical or financial
and/or transportation capacity by Client from Provider, which such agreement
has been entered into pursuant to and is governed by a written contract in a
form, which has been negotiated between Provider and Client.


 


1.21                           “Purchase Obligation” means
an obligation to purchase natural gas, whether physical or financial and/or
associated transportation capacity incurred by Client pursuant to a Purchase
Transaction. Such obligations may be expressed in MMBtu’s, in dollars or as a
percentage of monthly volume.


 


1.22                           “Residential Customer” means
any purchaser of natural gas for personal, non-commercial, non-industrial
consumption from Client.


 


1.23                           “Sale Contract” means an
agreement for the sale of natural gas by Client to a Customer, which has been
entered into pursuant to and is governed by a 


 


3

















 


contract substantially similar to Exhibit 3.


 


1.24                           “Sale Obligation” means an
obligation to sell natural gas incurred by Client pursuant to a Sale Contract. Such
obligations may be expressed in MMBtu’s, dollars, therms or cents.


 


1.25                           “Security Agreement” means
the Security Agreement dated as of the date of the Original Agreement between
the Client and the Provider, attached hereto as Exhibit 4, as may be amended,
supplemented or modified from time to time.


 


1.26                           “Specified Geographic Region”
means the geographic area that encompasses the respective Provider approved
service territories of the Local Distribution Companies listed in Exhibit 6.


 


1.27                           “Speculative Trading” means
(i) any and all Trading, whether exchange based or over-the-counter, engaged in
for the purpose of financial gain only or (ii) any and all Trading (a) not
directly related to hedging, mitigating or locking in risks or (b) that creates
a risk position with regard to market price or volume. Notwithstanding the
foregoing, Speculative Trading shall not include transactions by Client,
whereby Client locks in a price spread between physical locations or points in
time using its transportation or storage assets as the basis for such transaction
with the intent of such transactions being the optimization its transportation
or storage assets.


 


1.28                           “Third Party Purchaser”
means an entity that is not a Customer and that agrees to purchase natural gas
and/or transportation capacity from Client.


 


1.29                           “Third Party Seller” means a
Person other than Provider that Client desires to purchase natural gas and/or
transportation capacity from.


 


1.30                           “Trading” means the buying
or selling of natural gas, including without limitation incurring any
obligation to buy or sell natural gas whether contingent or actual.


 


ARTICLE
2

NATURE OF RELATIONSHIP


 


The purpose of this
Agreement is to establish a relationship between the Parties whereby (i)
Provider will (a) sell Client its natural gas requirements, physical and
financial, except as otherwise provided in this Agreement and (b) reduce the
various forms of credit support and other capital-related services as provided
for in the Original Agreement to Client and, in exchange, (ii) Client will (a)
purchase its natural gas requirements, physical and financial, from Provider,
except as otherwise provided in this Agreement and (b) pay Provider fees for
such commodities. Without limiting the generality of the foregoing, the Parties
agree to the following:


 


4

















 


2.1                                 It
is expressly understood and agreed that the relationship between Provider and
Client described herein or established hereby is not a joint venture or a
partnership.


 


2.2                                 Client agrees that it
will be solely responsible for conducting and managing its day-to-day business
activities and shall use commercially reasonable efforts to market natural gas
under this Agreement.


 


2.3                                 Client shall be named
as the purchaser in all Purchase Transactions and the seller in all Sale
Contracts, and Client shall be solely responsible for the performance of its
obligations under such contracts. Except for obligations undertaken by Provider
pursuant to Purchase Transactions between Provider and Client, Provider
specifically disclaims any and all liability under such contracts and Client
acknowledges and agrees that Provider shall have no liability under such
contracts.


 


2.4                                 Provider will provide
Client the opportunity to purchase financial and physical hedges and
derivatives including New York Mercantile Exchange (“NYMEX”) futures, basis,
weather derivatives, call options, and put options, only for the benefit of
Customers and potential Customers and shall have the same opportunity regarding
storage transactions and as further provided for herein pursuant to the terms
of the ISDA Agreement & Schedule and the Master Agreement. Client shall not
transact any Speculative Trading and any such transaction shall be an Event of
Default. Client shall provide to Provider documentation on a monthly basis to
demonstrate and/or substantiate that all Purchase Obligations are aligned with
offsetting Sales Contracts, provided, however, that from time to time Client
may enter into such Purchase Obligations for the purpose of supplying potential
Sales Contracts, which Client has a reasonable likelihood of signing during
such time period.


 


2.5                                 Neither Party shall be
subject to, nor call the other Party for, margining with respect to fixed-price
hedges or physical fixed price supply. Client acknowledges that Provider and/or
Provider’s Affiliates conduct all risk management activities on their own
behalf. Client further recognizes that neither Provider nor any of its
Affiliates is currently registered as an “investment advisor” with the
Securities and Exchange Commission or any state or federal regulatory agency or
as a “commodity trading advisor” with the Commodity Futures Trading Commission
or the National Futures Association, and neither Provider nor any of its
Affiliates holds itself out generally to the public or to Client as such.


 


2.6                                 Client agrees not to
misrepresent to third parties its relationship with Provider, as such
relationship is described in this Agreement. Provider shall have the right to
review and approve any and all Client press releases mentioning, making
reference to Provider or implying that Provider is associated with Client. In
the event that Provider determines in its sole, 


 


5

















 


reasonably exercised discretion that Client has misrepresented its
relationship with Provider under this Agreement, such misrepresentation shall
be an Event of Default hereunder.


 


2.7                                 It is expressly
understood and agreed that nothing in this Agreement changes the employment
relationship between Client and its employees, nor does it change the
employment relationship between Provider and its employees. Client’s employees,
contractors, and agents are not employees, contractors and agents of Provider,
and it is the Parties’ intent that nothing in this Agreement or in any other
agreement shall be deemed to constitute or be construed as making Client’s
employees, contractors and agents employees, contractors or agents of Provider.
In addition, nothing in this Agreement or any other agreement shall be
construed to create a joint or co-employment relationship between the Parties. Client
is solely responsible for any employment related costs and expenses associated
with its employees including, but not limited to, recruiting, taxes, benefits,
workers compensation, unemployment insurance, equipment, tools, materials, and
supplies.


 


2.8                                 During the term of
this Agreement, Provider and Client will discuss regularly (at a minimum of
once quarterly) the various array of alternative risk type services that could
be potentially overlaid with the Customer base of Client. The purchase of any
type of risk product from Provider will be at the sole discretion of Client.


 


2.9                                 Client shall first
consult with Provider in the event that Client is contemplating filing for
Bankruptcy, and the Parties shall mutually agree as to the more beneficial
course of action. Should an involuntary petition in Bankruptcy be filed against
Client, Client shall immediately discharge and satisfy any debt obligations
with respect to such Bankruptcy petition.


 


2.10                           Client shall immediately
provide written notice to Provider in the event of any material change in
Client’s business, including without limitation, any litigation or threat of
litigation, any Commercial or Industrial Customer of Client that is involved in
Bankruptcy or threat of Bankruptcy or any event obligating Client to file a
claim or notice under its insurance policies as set forth in such policies;
provided that the event associated with the material change must have an actual
or reasonable potential minimum threshold risk of loss of one million dollars
($1,000,000).


 


ARTICLE
3

PURCHASE TRANSACTIONS


 


3.1                                 In
order to purchase its natural gas requirements, physical and financial, Client
shall enter into Purchase Transactions with Provider pursuant
to the terms of confirmations, the Master Agreement and the ISDA Agreement and
Schedule, as applicable.


 


6

















 


3.2                                 Client shall purchase
its natural gas (i) directly from Provider (under terms upon which Client and
Provider mutually agree and pursuant to the Master Agreement and the ISDA
Agreement & Schedule, as applicable) to serve or for the benefit of Client’s
Customers, as the case may be, in the Specified Geographic Region, (ii)
indirectly from Approved Third Party Sellers through Provider pursuant to the
arrangement described in Sections 3.2(A) – (D) below or (iii) directly from a
Third Party Seller pursuant to the arrangement described in Section 3.3.
For all physical and financial natural gas purchased from Provider directly,
Client shall pay in accordance with the Transfer Price Schedule set forth in
Exhibit 8.


 


(A)          Client may elect to purchase from
Approved Third Party Sellers, as defined in Section 3.2(C)), pursuant to the
conditions set forth in Section 3.2(B) and the following condition. If Client
receives an offer to buy natural gas, physical or financial, (on terms
identical, including delivery point, delivery period and volume, excepting
price, to the terms offered by Provider) from an Approved Third Party Seller of
natural gas that is more than $0.04 per MMBtu or equivalent heating value unit
less than Provider’s then current Offer (defined in Exhibit 8) to sell natural
gas, physical or financial, to Client (the “Approved Third Party Offer”),
Client shall introduce such Approved Third Party Seller to Provider and
Provider will then purchase the Approved Third Party Offer and Provider shall
resell such Approved Third Party Offer to Client at the Approved Third Party
Offer plus $0.02 per MMBtu or equivalent heating value unit. Sections
3.2(A)-(D) and 3.3 shall be the sole and exclusive remedy to Client for the
purchase of Client’s natural gas, physical or financial, requirements with
respect to pricing disputes between Provider and Client.


 


(B)           The following additional conditions
shall apply to the purchase of natural gas, physical or financial, from an
Approved Third Party Seller (any consent required under this Section 3.2(B)
shall not be unreasonably withheld):


 


(i)            natural gas purchased under a
transaction with an Approved Third Party Seller shall be purchased on an index
related basis if requested for a term of one year or less, provided that such
request is made by one of Client’s approved supply personnel as specified by
Client to Provider in writing from time to time, except as otherwise provided
in Section 3.2(B)(ii);


 


(ii)           natural gas cannot be purchased on a
fixed price basis unless it is either a day-to-day purchase, consent is
provided by Provider or Client is selling such natural gas to a Customer on
terms and conditions, including without limitation quantity and pricing, that
mirror the subject fixed priced purchase agreement;


 


7

















 


(iii)          no natural gas purchase shall be
entered into for a volume of greater than ten thousand (10,000) MMBtus per day
without the consent of Provider;


 


(iv)          Provider will verbally confirm the
quantity of natural gas under an Approved Third Party Seller transaction after
Client provides notice to Provider that such transaction terms are agreed to. Provider
will then enter into the transaction and will be the confirming party in such
transaction;


 


(v)           all transactions must be communicated
in writing to Provider from Client within two (2) hours of entering into the
respective transaction and no later than two (2) hours of the nomination
deadline;


 


(vi)          no intraday natural gas will be
provided by Provider for Client if the Approved Third Party Seller’s natural
gas is curtailed by Force Majeure (as defined in the Master Agreement), unless
Provider agrees to provide such intraday natural gas; and


 


(vii)         Client shall not enter into
transactions for the purchase of natural gas with more than 12 Approved Third
Party Sellers outstanding at any one time.


 


(C)           Prior to negotiating a purchase with
any Third Party Seller, Client shall provide the name of such Third Party
Seller to Provider. Provider may investigate the creditworthiness of each such
Third Party Seller and shall notify Client in writing of those Third Party
Sellers that satisfy Provider’s credit requirements (the “Approved Third Party
Sellers”) and those that do not satisfy Provider’s credit requirements (the “Unapproved
Third Party Sellers”). Provider shall have the right to change its credit
requirements at any time and such right shall be exercisable by Provider in its
sole discretion and without prior notice to Client. Provider shall have the
right, upon written notice to Client, to change the status of any Third Party
Seller from an Approved Third Party Seller to an Unapproved Third Party Seller
or vice versa. There will be no Approved Third Party Seller natural gas
purchase unless a fully executed contract, in a form substantially similar to
the Master Agreement or the ISDA Agreement & Schedule, as the case may be,
exists between Provider and Third Party Seller.


 


(D)          Provider shall use reasonable efforts
to notify Client of the initial status of any Third Party Seller within two (2)
Business Days of Client’s first providing the name of such Third Party Seller
to Provider; provided, however, that failure of Provider to notify Client
within such period shall not constitute or be construed as a designation of
such Third Party Seller as an Approved Third Party Seller.


 


3.3                                 Notwithstanding
Section 3.2, Client may purchase on a calendar year basis up to seven and one
half (71⁄2) billion cubic feet of physical and financial natural gas in aggregate
from a Third Party Seller; provided that 


 


8

















 


Client
pays Provider $0.01 for each MMBtu or equivalent heating value unit that Client
purchases from such Third Party. Provider may, from time to time, review Client’s
physical natural gas load for the purpose of potentially adjusting the volume
of physical and financial natural gas that Client may purchase from a Third
Party Seller. Sections 3.2(A)-(D) and 3.3 shall be the sole and exclusive
remedy to Client for the purchase of Client’s natural gas, physical or
financial, requirements with respect to pricing disputes between Provider and
Client. Client shall not be permitted to bank or roll over any unused Third
Party Seller volume from year to year.


 


3.4                                 Unless
Client has obtained the prior written approval of Provider, the Monthly
Purchase Obligations relating to any one (1) calendar month (exclusive of any
Purchase Obligations incurred in any prior calendar month) shall not exceed
fifty million (50,000,000) MMBtu (the “Monthly Purchase Limit”). If, at
any time, Client exceeds the then current Monthly Purchase Limit without
Provider’s prior written approval, such occurrence shall be an Event of
Default; provided, however, that Provider may, in its sole discretion, waive
its rights that arise from such Event of Default and negotiate with Client to
increase the Monthly Purchase Limit. The Monthly Purchase Limit may be reviewed
from time-to-time by Provider. Provider and Client will negotiate in good faith
to, increase the Monthly Purchase Limit as requested by Client; provided,
however, that no such increase shall be effective unless it is evidenced in a writing
signed by Provider and Client.


 


ARTICLE
4

SALE CONTRACTS


 


4.1                                 In
order to sell physical natural gas, Client may enter into Sale Contracts with
its Customers, subject to the terms and conditions relating to Sales Contracts
with its Customers set forth below.


 


4.2                                 With
respect to Sale Contracts between Client and its Customers:


 


(a)                                  Client
shall use the form of agreement substantially in the form depicted in Exhibit 3.
If, at any time, Client desires to change the form of agreement it offers to
its Customers, Client shall request that Provider review and approve the new
proposed form. Provider will be deemed to have approved the changed form unless
it provides specific objections to the proposed changes within seven Business
Days. Upon agreement of both Parties as to the new agreement form, the Parties
shall execute a written amendment to this Agreement whereby the new form shall
replace the form of agreement currently depicted in Exhibit 3. In the event any
Governmental Entity having jurisdiction over Client mandates or approves in
writing a change in the form of the agreement in Exhibit 3 for use in such
jurisdiction, Client shall not need consent by Provider; provided however, that
Client shall continue to provide any such updates in such form of agreement to
Provider.


 


9

















 


(b)                                 Client
shall be responsible for invoicing all amounts due from Customers in connection
with any Sale Contract. Client may either invoice Customers itself directly, or
it may invoice Customers indirectly by entering into a billing service
agreement with a third party billing service.


 


ARTICLE
5

PROVISION OF CREDIT; ORIGINAL AGREEMENT SECURITY INTEREST


 


5.1                                 Provider
shall provide Client a maximum open account credit limit (“Credit Amount”) of
twelve million five hundred thousand dollars ($12,500,000) per month. Provider
may adjust the Credit Amount, in Provider’s sole and reasonable discretion,
based on a review of tangible net worth information provided by Client to
Provider pursuant to Section 6.4 herein, including without limitation any other
information that Provider, in its sole and reasonable discretion, deems useful
in making such determination. Notwithstanding the foregoing in this Section
5.1, the Credit Amount is conditioned on Client first providing a standby
letter of credit (“Letter of Credit”) in the form attached hereto as Exhibit 9,
and issued by an issuer, acceptable to Provider in an amount not less than
Provider’s prompt month projected receivables, as reasonably determined by
Provider, for physical delivery of natural gas, less the Credit Amount and plus
or minus, as the case may be, the projected swap settlement payment for such
month, as reasonably determined by Provider. Client shall cause a Letter of
Credit to be issued for each natural gas month with a term of ninety (90) days
and such Letters of Credit shall be issued to Provider no later than four
Business Days prior to such natural gas month. Any payment by Client to
Provider that is paid through the issuer of the Letter of Credit shall reduce
the Letter of Credit by such amount paid. Any failure by Client to have a
Letter of Credit issued shall be an Event of Default. Provider may exercise its
rights under the Letter of Credit for any Client Event of Default.


 


5.2                                                 All of Client’s obligations
under this Agreement shall be secured by and continued to be secured by,
including without limitation Client’s after acquired property, a first lien and
security interest on all of Client’s assets pursuant to the Security Agreement
and Lockbox Account. Provider and Client agree that Provider shall not release
or subordinate any of its security interests pursuant to the Intercreditor
Agreement until all payment obligations (“Original Payment Obligations”) in
respect of credit extended by Provider under the Original Agreement have been
paid.


 


5.3                                                 At such time that Client has
paid the Original Payment Obligations, Provider’s liens pursuant the Security
Agreement shall be subject to the Intercreditor Agreement and the Lockbox Agreement
shall be terminated.


 


10

















 


ARTICLE
6

REPORTING OBLIGATIONS


 


6.1                                 By
5:00 p.m. Central Time on the 10th Business Day of each calendar month during
the term of this Agreement, Client shall submit to Provider electronically (in
Excel format or other acceptable format to Provider), a report containing the
following information, expressed in both dollars and applicable units, with
respect to obligations Client incurred in the immediately preceding month:


 


(a)                                  the
Monthly Sale Obligations (including, the markets, market volumes, prices, and
aggregate monetary obligations associated therewith); and


 


(b)                                 the
Monthly Purchase Obligations (including, the suppliers, supply volumes, prices,
and aggregate monetary obligations associated therewith).


 


Provider may
reasonably request that such report also set forth any other information that
would be deemed significant to Provider.


 


6.2                                 If
applicable, at the request of Provider, Client shall grant Provider access to
Client’s electronic bulletin board nomination account with utilities or other
entities; provided, however, that such access shall be only for purposes of
allowing Provider to monitor and review activity by Client on such electronic
bulletin boards.


 


6.3                                 Client
shall provide such financial reporting to Provider that Client provides to
Sowood Commodity Partners Fund, LP on a monthly basis.


 


6.4                                 Client
shall provide to Provider (i) within forty-five (45) days after the close of
each monthly accounting period in each fiscal year an income statement and
balance sheet of the Client for such month in reasonable detail, subject to
normal year end audit adjustments and certified by the Client’s president or
chief financial officer to have been prepared in accordance with GAAP; (ii)
within one hundred twenty (120) days after the close of each fiscal year,
income statements, balance sheets, and statement of cash flow of the Client for
such fiscal year and (iii) any other financial reporting reasonably requested
by Provider. These reports are to be reviewed by independent certified public
accountants of recognized standing to present fairly the consolidated financial
position and results of operations of the Client in accordance with GAAP; and
accompanied by such accountants’ opinion thereof that such documents have been
reviewed in compliance with the American Institute of Certified Public
Accountants Statements of Auditing Standards in effect as of the execution
hereof; such accountants’ opinion and certification shall be directed to
Provider (or Client’s lenders), providing that the Client representation of the
accountants extends to Provider (or Client’s lenders); and (iii) annually,
within thirty (30) days of completion, a complete copy of the federal tax
return of Client. Client’s reporting obligations under 


 


11

















 


this Section 6.4 shall
commence forty-five (45) days following the Effective Date.


 


6.5                                 Client
shall also provide the information required in Section 2.4 of this Agreement to
demonstrate that it is not or has not engaged in Speculative Trading.


 


6.6                                 All
such information and data, obtained pursuant to this Article 6, shall
specifically be subject to the confidentiality provision of Section 16.9
hereof.


 


ARTICLE
7

FEES


 


Provider shall invoice
Client for the fees described in Sections 7.1 and 7.2 on or about the 10th day
of each calendar month during the term of this Agreement. All other Client
Payment Obligations to Provider shall be invoiced in accordance with their
respective agreement or provisions herein. Payment of such fees by Client shall
be due on the 25th day of the month in which such invoice is received; or if
such day is not a Business Day, then the next Business Day. All amounts
invoiced to Client by Provider or any part thereof that falls past due shall
accrue interest at the rate of interest set forth in the Master Agreement and
the ISDA Agreement & Schedule, as applicable.


 


7.1                                 Administrative Fee


 


The Parties acknowledge that Provider will incur significant administrative
costs in connection with providing services to Client pursuant to this
Agreement. In consideration for Provider providing such services to Client,
Client agrees to pay Provider an administrative fee in the amount of three
thousand dollars ($ 3,000) per month (“Administrative Fee”) for each calendar
month or partial calendar month during the term of this Agreement.


 


7.2                                 Transfer Price


 


The Parties shall be subject to the transfer pricing set forth in
Exhibit 8 with respect to natural gas transactions, whether physical or
financial.


 


ARTICLE
8

LENDER FINANCING


 


The Original Agreement is
being amended and restated to accommodate lender financing for Client. As of
the Effective Date of this Agreement, the Client has entered into a financing
arrangement (“Financing Arrangement”) with an administrative agent and other
bank lenders. All documents encapsulating the Financing Arrangement and all
other documents that 


 


12

















 


provide credit to the
Client are collectively, the “Credit Documents”, which shall include without
limitation the Intercreditor Agreement and this Agreement.


 


ARTICLE
9

RIGHT TO NET


 


It is explicitly
understood that all contracts and transactions entered into by and between
Provider and Client under this Agreement are subject to a Master Netting
Agreement, a copy of which is attached hereto as Exhibit 5.


 


ARTICLE
10

NEW OPPORTUNITIES AND NON-SOLICITATION


 


To the extent Client
desires additional services under this Agreement, the terms and conditions
related to the provision of such additional services shall be included in a
written amendment to this Agreement which shall be executed by both Parties. Further,
in consideration for the prices and fees quoted for provision of the
commodities and services described herein, Client agrees that during the term
of this Agreement, Client shall not solicit or enter into any similar
arrangements or agreements with any third party for services substantially
similar to those described in this Agreement. Provider may enter into
arrangements or agreements related to commodities and services substantially
similar to those described in this Agreement with other third parties that
conduct similar business. Provider shall have the right to request data in
support of Client’s maintenance of such customer base.


 


ARTICLE
11

REPRESENTATIONS AND WARRANTIES


 


Each Party represents and
warrants to the other Party as of the Effective Date and as of the date each
physical and financial commodity transaction is entered into between the
Parties that:  (i) it is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation; (ii) it has all regulatory authorizations necessary for it to
legally perform its obligations under this Agreement and each transaction
contemplated hereunder; (iii) the execution, delivery and performance of this
Agreement is within its powers, have been duly authorized by all necessary
action and do not violate any of the terms and conditions in its governing documents,
any contracts to which it is a party or any law, rule, regulation, order or the
like applicable to it; (iv) this Agreement and each other document executed and
delivered in accordance with this Agreement constitutes its legally valid and
binding obligation enforceable against it in accordance with its terms; subject
to any defenses pertaining to Bankruptcy, insolvency, reorganization, and other
laws affecting creditors’ rights generally; (v) it is not Bankrupt and 


 


13

















 


there are no proceedings
pending or being contemplated by it or, to its knowledge, threatened against it
which would result in it being or becoming Bankrupt; (vi) there is not pending
or, to its knowledge, threatened against it or any of its Affiliates any legal
proceedings that could materially adversely affect its ability to perform its
obligations under this Agreement; (vii) no Event of Default with respect to it
has occurred and is continuing and no such event or circumstance would occur as
a result of its entering into or performing its obligations under this
Agreement; (viii) it is acting for its own account, has made its own
independent decision to enter into this Agreement and as to whether this
Agreement is appropriate or proper for it based upon its own judgment, is not
relying upon the advice or recommendations of the other Party in so doing, and
is capable of assessing the merits of, and understands and accepts, the terms,
conditions and risks of this Agreement; (ix) all Sale Contracts along with all other
applicable agreements related to the Sale Contracts are and shall be freely
assignable to Provider upon the occurrence of an Event of Default and
(x) all other representations and warranties in all other agreements between
the Parties with respect to, in connection with and arising out of this
Agreement are true and are hereby incorporated by reference into this
Agreement.


 


Client represents and
warrants to Provider that it is, and at all times, has been and will be in
material compliance with all applicable federal, state, and local laws, orders,
ordinances, rules and regulations in its operations and in performing its
obligations under this Agreement. Client agrees to take all reasonable actions
to ensure its and its employees’ material compliance with all applicable
federal, state and local employment laws and employee benefit laws.


 


ARTICLE
12

INDEMNIFICATION


 


Each Party (the “Indemnifying
Party”) shall indemnify, defend and hold harmless the other Party, its
Affiliates, and their respective directors, officers, agents and employees
against any and all claims, actions, damages, and expenses (including
reasonable attorneys’ fees) arising out of or relating to the actions or
inactions of the Indemnifying Party or its personnel in connection with this
Agreement, except to the extent caused by the other Party’s willful misconduct
or negligence (whether simple or gross).


 


14

















 


ARTICLE
13

LIMITATION OF LIABILITY


 


FOR
BREACH OF ANY PROVISION OF THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL
BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS
SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN
EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED
HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY,
SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER
REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY HEREIN
PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT OR WARRANTY. IT IS THE
INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE
MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO,
INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT
OR CONCURRENT, OR ACTIVE OR PASSIVE. EXCEPT FOR WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OR FOR NONPAYMENT OF AMOUNTS DUE PURSUANT TO THIS AGREEMENT, NEITHER
PROVIDER NOR ANY OF PROVIDER’S DIRECTORS, OFFICERS, GOVERNING BOARD MEMBERS, AGENTS,
OR EMPLOYEES SHALL BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE,
CLAIM, COST, CHARGE OR EXPENSE ARISING FROM PERFORMANCE OR NONPERFORMANCE UNDER
THIS AGREEMENT.


 


ARTICLE
14

EVENTS OF DEFAULT; REMEDIES


 


14.1                                           An “Event of Default” shall
mean, with respect to a Party (the “Defaulting Party”), the occurrence of any
of the following or as otherwise provided in this Agreement:


 


(a)           the
failure of a Party to perform any of its material covenants or obligations set
forth in this Agreement, any Purchase Transaction or Sale Contract or any other
agreement between the Parties entered into pursuant to or otherwise related to
this Agreement, other than as expressly provided in elsewhere in this Section
14.1, and the continuation of such failure for five (5) days after notice
thereof is given by the other Party to the Defaulting Party;


 


15

















 


(b)           the
occurrence of an event described as an “Event of Default” in this Agreement, in
any Purchase Transaction or Sale Contract, or in any other agreement between
the Parties entered into pursuant to or otherwise related to this Agreement not
otherwise listed as an Event of Default under this Section 14.1;


 


(c)           the
failure to make, when due, any Payment required pursuant to this Agreement if
such failure is not remedied within two (2) days after receipt of written
notice of which at least one day shall be a Business Day;


 


(d)           any
representation or warranty made by a Party herein is false or misleading in any
material respect when made or when deemed made;


 


(e)           the
Party files a petition or otherwise commences, authorizes, or acquiesces in the
commencement of a proceeding or cause under any Bankruptcy or similar law for
the protection of creditors or has such petition filed or proceeding commenced
against it all as defined and set forth in the Master Agreement or the ISDA
Agreement & Schedule as the case may be, the Party otherwise becomes
Bankrupt or insolvent (however evidenced), the Party makes an assignment or any
general arrangement for the benefit of creditors or the Party is dissolved or
has a resolution passed for its winding up or liquidation;


 


(f)            such
Party consolidates with, or merges with or into, or transfers all or
substantially all of its assets to, another entity and, at the time of such
consolidation, amalgamation, merger or transfer, the resulting, surviving or
transferee entity fails to assume all the obligations of such Party under this
Agreement to which it or its predecessor was a party by operation of law or
pursuant to an agreement reasonably satisfactory to the other Party, or such
surviving or transferee entity does not have comparable or better credit than
the non-surviving or transferor Party;


 


(g)           Client
defaults under any of the Credit Documents;


 


(h)           Client
shall fail to immediately satisfy any accelerated loans, guaranties or other
extensions of credit made by the Provider under the Original Agreement and
outstanding as of the Effective Date as set forth in Section 16.14.


 


14.2                                           If an Event of Default with
respect to a Defaulting Party shall have occurred and be continuing, then the
other Party (the Non-Defaulting Party”), shall have the right, at its option,
to (i) designate a day (“Early Termination Date”), no earlier than the day such
notice is effective and no later than twenty (20) days after such notice is
effective, on which date this Agreement and all agreements between the Parties
entered into pursuant hereto (other than the Intercreditor Agreement) shall be
terminated, without, however, affecting any liabilities of the Parties accrued
hereunder or thereunder before 


 


16

















 


the Early Termination
Date. If this Agreement is so terminated, all amounts owing between the Parties
under this Agreement and all agreements between the Parties entered into
pursuant hereto shall be accelerated and become immediately due and payable. Notwithstanding
anything herein to the contrary, the Master Netting Agreement attached as
Exhibit 5 shall control all close-out netting obligations between the Parties. Nothing
contained herein shall limit any rights or remedies that Provider or Client may
have upon the occurrence of an “Event of Default” under any other agreements
executed in connection herewith or any rights and remedies available hereunder
or at law or in equity.


 


ARTICLE
15


GUARANTY


 


15.1                           Within two business days following the Effective Date, Provider shall
provide Client a guaranty (“Guaranty”) issued by Dominion Resources, Inc. (“DRI”)
for an amount not to exceed twenty million dollars ($20,000,000) (“Guaranty
Limit”). In the event that Client’s mark-to-market gains fall below twenty
million dollars ($20,000,000), for every one million dollars ($1,000,000) or
more of downward adjustment, the Guaranty shall be decreased to such amount. For
every one million dollars ($1,000,000) or more of upward adjustment, the
Guaranty shall be increased to such amount up to the Guaranty Limit.


 


15.2                           In
the event that Client’s mark-to-market gains revert to mark-to-market losses,
Provider shall no longer be required to provide the Guaranty and shall not be
obligated to provide the Guaranty unless and until such time Client’s
mark-to-market gains exceed one million dollars ($1,000,000) again. Provider
acknowledges that as of the Effective Date, Client’s mark-to-market gains
exceed twenty million dollars ($20,000,000).


 


15.3                           In
the event that DRI fails to issue a Guaranty, increase a Guaranty or terminates
a Guaranty in conflict with Provider’s obligations under this Article 15, then
Provider shall provide Client adequate assurances in a form acceptable to
Client and in an amount to cover Provider’s obligations under this Article 15.


 


15.4                           As
of the Effective Date, Client acknowledges receipt of DRI’s form guaranty and
that such form guaranty attached hereto as Exhibit 10 is acceptable as to form
and content.


 


ARTICLE
16

MISCELLANEOUS


 


16.1                                                                           Term


 


Unless terminated earlier pursuant to Section 14.2, this Agreement
shall remain in full force and effect from the Effective Date through June 30,
2007, 


 


17

















 


and shall continue year-to-year thereafter until terminated by either
Party with no less than one hundred twenty (120) days, and no greater than two
hundred (200) days, written notice to the other Party prior to the beginning of
each contract term. Such termination shall not affect or excuse the performance
of either Party under any provision of this Agreement that by its terms
survives such termination. Further, such termination shall not affect or excuse
the performance by either Party under this Agreement or any agreement between
the Parties entered into pursuant hereto related to obligations which were
undertaken prior to such termination and which remain unperformed at the time of
such termination. In the event one Party terminates under this Section 16.1,
both Parties shall negotiate for a mutually agreed upon period in good faith
and in fair dealing to continue their business relationship.


 


16.2                                                                           Return of Documents and Information


 


Upon the termination or expiration of this Agreement, each Party shall
return or destroy, and certify such destruction, all documents, data, and
Information belonging to the other Party and shall cooperate fully to ensure
that the termination of this Agreement and the transition is accomplished in an
efficient and businesslike manner. One copy of all such documents, data and
Information belonging to a disclosing Party may be retained for record-keeping
purposes by the other Party’s counsel.


 


16.3                                                                           Notices


 


Except as otherwise provided herein, all notices to be served under
this Agreement shall be in writing and shall be deemed effectively given (i)
when personally delivered, (ii) when received by documented overnight delivery
service, (iii) when received by facsimile or other electronic means (to the
extent that receipt is confirmed), or (iv) on the US Postal Service date stamp
indicated on the return receipt for notices deposited as certified or
registered mail, return receipt requested, in the United States mail, with
postage prepaid thereon, to the individual(s) designated by each Party on
Exhibit 7 with respect to the activities specified thereon.


 


16.4                                                                           Assignment


 


The provisions of this Agreement will be binding upon and inure to the
benefit of the successors and assigns of each of the Parties hereto. Client may
not assign this Agreement to any other person or entity without the prior
written consent of Provider. Provider may not assign this Agreement to any
other Person or entity without the prior written consent of Client, provided,
however, that Provider may assign this Agreement to any of its affiliates.


 


Client hereby represents and warrants that all Sale Contracts along
with all other applicable agreements related to the Sale Contracts are and
shall be 


 


18

















 


freely assignable to Provider upon the occurrence of an Event of
Default. The foregoing representation and warranty is a material provision to
this Agreement.


 


16.5                                                                           Entire Agreement; Amendments


 


Except for additional agreements between the Parties expressly
referenced herein (the execution of which the Parties acknowledge will occur
sometime after the execution of this Agreement), this Agreement contains the
entire understanding and agreement of the Parties and shall form a single
integrated agreement between the Parties. Client acknowledges that Provider
would not have entered into this arrangement with Client without the benefit
conferred to Provider of all the documents constituting a single integrated
agreement. This Agreement may be modified, altered or amended only by an
agreement in writing, signed by both Parties.


 


16.6                                                                           Waiver


 


No waiver of any provision of this Agreement shall be valid or
enforceable unless in writing and signed by the Party against whom enforcement
of the waiver is sought. The waiver of any provision of this Agreement, at any
time, by either Party, shall not constitute a waiver of future compliance with
such provision or a waiver of compliance with any other provision of this Agreement.


 


16.7                                                                           Governing Law


 


This Agreement and all disputes arising hereunder shall be subject to,
governed by, and construed in accordance with the laws of the State of Virginia
(except as may be otherwise expressly agreed to in any of the other agreements
between the Parties and only in respect of such agreement) or the laws of the
United States, as applicable, as if executed and to be performed wholly within
the State of Virginia.


 


16.8                                                                           Severability


 


Except as otherwise set forth herein, in the event that any of the
provisions hereof are held by a court of competent jurisdiction to be invalid,
void, or otherwise unenforceable, all other provisions of this Agreement shall
remain enforceable to the fullest extent permitted by law.


 


16.9                                                                           Confidentiality


 


Each Party acknowledges that during the term of this Agreement, it will
have access to and receive oral and written information concerning the other
Party and the transactions entered into pursuant to or otherwise related to
this Agreement (collectively, the “Information”). Each Party hereby agrees that
it will use the Information solely for the purposes related to this Agreement. 


 


19

















 


Each Party hereby further agrees that, unless required by applicable
law, order, or rule or unless required to enforce or protect its rights under
this Agreement, it will not disclose any of the Information to any third party
other than such Party’s employees, Affiliates, lenders, counsel, accountants,
or other advisors. Each Party further agrees that it will notify the other
Party of any proceeding of which it is aware that may result in disclosure of
Information and shall use reasonable efforts to prevent or limit such
disclosure.


 


Provider and Client agree that from time to time and at Provider’s sole
discretion, Provider may provide to Client certain reports, analyses,
projections, forecasts or other similar information in whatever form prepared,
summarized or compiled by third parties (“Reports”). Client acknowledges and
understands that:


 


(a)           in
the event Provider provides any Reports, such service is performed at no cost
to Client and if a Report is provided, it is provided outside the scope of any
and all Provider obligations under this Agreement or any other agreement and done
so strictly on a pass through basis;


 


(b)           Provider
has not read, reviewed or commented on the Reports and is merely passing on the
Reports at Client’s request;


 


(c)           the
Reports simply represent another source of information that Client may, in its
own business discretion, use and analyze as it sees fit;


 


(d)           Provider
does not make any warranties or representations as to the accuracy or
correctness of any information contained in the Reports and hereby provides all
Reports, if any, on an “AS IS”, “WHERE IS” basis “WITH ALL FAULTS”
and hereby disclaims any and all express and implied warranties and NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE SHALL APPLY;


 


(e)           Provider
hereby disclaims any and all liability, including without limitation, loss of
profit or revenues, cost of capital, cost of substitute services, facilities,
downtime costs, claims of Client’s Customers for such damages, or for any other
consequential, incidental, indirect, exemplary or punitive damages whether a
claim is brought in contract, indemnity, warranty, tort (including without
limitation simple and/or gross negligence), strict liability or otherwise
arising from the Reports; and


 


(f)            Client
agrees to indemnify, defend and hold harmless Provider for any and all claims
brought with respect to, or related to, the Reports.


 


16.10                                                                     Good Faith and Further Assurances


 


The Parties expressly accept their respective responsibility of good
faith and 


 


20

















 


fair dealing with regard to their obligations under this Agreement and
agree to take such further actions and execute such further documents as may be
reasonably necessary or appropriate to complete the transactions contemplated
hereunder. Further, the Parties agree to execute such additional documents,
instruments, or agreements, (including amendments to this Agreement), and take
such further action as Provider may deem reasonably necessary to cure any error
or omission, to perfect any security interest granted by Client, to comply with
applicable law or regulation or otherwise effectuate the provisions or purposes
of this Agreement.


 


16.11                                                                     Headings, Exhibits


 


The headings used for the sections
and articles herein are for convenience and reference purposes only and shall
in no way affect the meaning or interpretation of the provisions of this
Agreement. Any and all Exhibits referenced in this Agreement shall be
incorporated herein by reference and shall be deemed to be an integral part
hereof.


 


16.12                                                                     Counterparts


 


This Agreement may be executed and
acknowledged in multiple counterparts and by different Parties in separate
counterparts, each of which shall be an original and all of which shall be and
constitute one and the same instrument.


 


16.13                                                                     Singular/Plural


 


Words importing the singular only also include the
plural, and vice versa, where the context requires.


 


16.14                                                                     Original Agreement Superseded


 


This Agreement
supersedes and replaces in its entirety the Original Agreement. Any loans,
guaranties or other extensions of credit made by the Provider under the
Original Agreement and outstanding as of the Effective Date of this Agreement
shall be accelerated and immediately satisfied. The ISDA Agreement &
Schedule, the Master Agreement, any outstanding Sale Contract, the Lockbox
Agreement and any other document executed in connection with the Original
Agreement and not otherwise superseded by this Agreement, including the
condition of payment in Sections 5.2 and 5.3, shall continue in full force and
effect, except that all references therein to the Original Agreement shall mean
this Agreement.


 


21














 


IN WITNESS WHEREOF, the Parties
hereto have executed this Agreement as of the day and year set forth above.


 


	
  VIRGINIA
  POWER ENERGY

  	
   

  	
  MxENERGY
  INC.

  
	
  MARKETING,
  INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Karla J. Haislip

  	
   

  	
  By:

  	
   

  	
  /s/ Carole R.
  Artman-Hodge

  	
   

  
	
  Name:

  	
  Karla J. Haislip

  	
   

  	
  Name:

  	
  Carole R. Artman-Hodge

  
	
  Title:

  	
  Authorized
  Representative,

  	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
   

  	
  Managing Director of
  Fuels

  	
   

  	
   

  	
  and Chief Operating
  Officer

  
								



 


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