Exhibit 10.9


 


 


 


 


 


 


 


 


 


SUBORDINATION AND


 


INTERCREDITOR AGREEMENT


 


dated as of December 19, 2005


 


by and among


 


SOCIÉTÉ GÉNÉRALE,


as Administrative Agent,


 


VIRGINIA POWER ENERGY MARKETING, INC.,


 


SOWOOD COMMODITY PARTNERS FUND LP,


 


MxENERGY HOLDINGS INC.,


 


MxENERGY INC.,


 


MxENERGY ELECTRIC INC., and


 


CERTAIN SUBSIDIARIES OF MxENERGY HOLDINGS INC.


 


 


 


 

















 


 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  2

  
	
  SECTION 2.

  	
  SUBORDINATION

  	
  8

  
	
   

  	
  2.1

  	
  Subordination of
  Sowood Obligations to Senior Obligations

  	
  8

  
	
   

  	
  2.2

  	
  Certain
  Agreements.

  	
  8

  
	
   

  	
  2.3

  	
  Sowood
  Obligations Payment Prohibition

  	
  9

  
	
   

  	
  2.4

  	
  Sowood
  Obligations Standstill Provisions

  	
  10

  
	
   

  	
  2.5

  	
  Incorrect
  Payments

  	
  10

  
	
   

  	
  2.6

  	
  Sale, Transfer
  or other Disposition of Sowood Obligations.

  	
  11

  
	
   

  	
  2.7

  	
  Legends

  	
  11

  
	
   

  	
  2.8

  	
  Final Payment of
  Senior Obligations

  	
  12

  
	
  SECTION 3.

  	
  LIEN PRIORITIES

  	
  12

  
	
   

  	
  3.1

  	
  Subordination of
  Liens

  	
  12

  
	
   

  	
  3.2

  	
  Nature of
  Obligations

  	
  14

  
	
   

  	
  3.3

  	
  Agreements
  Regarding Actions to Perfect Liens

  	
  14

  
	
  SECTION 4.

  	
  ENFORCEMENT RIGHTS

  	
  16

  
	
   

  	
  4.1

  	
  Exclusive
  Enforcement

  	
  16

  
	
   

  	
  4.2

  	
  Standstill and
  Waivers

  	
  16

  
	
   

  	
  4.3

  	
  Judgment
  Creditors

  	
  18

  
	
   

  	
  4.4

  	
  Cooperation

  	
  18

  
	
   

  	
  4.5

  	
  No Additional
  Rights For the Borrowers Hereunder

  	
  19

  
	
   

  	
  4.6

  	
  Actions Upon
  Breach

  	
  19

  
	
   

  	
  4.7

  	
  Certain Rights
  of Secured Counterparties Reserved

  	
  19

  
	
  SECTION 5.

  	
  APPLICATION OF PROCEEDS OF COLLATERAL; DISPOSITIONS AND RELEASES OF
  COLLATERAL; INSPECTION AND INSURANCE

  	
  19

  
	
   

  	
  5.1

  	
  Application of
  Proceeds; Turnover Provisions

  	
  19

  
	
   

  	
  5.2

  	
  Releases of
  Junior Liens

  	
  20

  
	
   

  	
  5.3

  	
  Inspection
  Rights and Insurance

  	
  21

  
	
  SECTION 6.

  	
  INSOLVENCY PROCEEDINGS

  	
  21

  
	
   

  	
  6.1

  	
  Filing of Motions

  	
  21

  



 

















 


	
   

  	
  6.2

  	
  Financing
  Matters

  	
  22

  
	
   

  	
  6.3

  	
  Relief From the
  Automatic Stay

  	
  23

  
	
   

  	
  6.4

  	
  Adequate
  Protection

  	
  23

  
	
   

  	
  6.5

  	
  Avoidance Issues

  	
  26

  
	
   

  	
  6.6

  	
  Asset
  Dispositions in an Insolvency Proceeding

  	
  27

  
	
   

  	
  6.7

  	
  Separate Grants
  of Security and Separate Classification

  	
  28

  
	
   

  	
  6.8

  	
  No Waivers of
  Rights of Credit Agreement Secured Parties

  	
  29

  
	
   

  	
  6.9

  	
  Plans of
  Reorganization

  	
  29

  
	
   

  	
  6.10

  	
  Effectiveness in
  Insolvency Proceedings

  	
  30

  
	
  SECTION 7.

  	
  SECURED COUNTERPARTY DOCUMENTS, CREDIT AGREEMENT DOCUMENTS, AND SOWOOD
  DOCUMENTS

  	
  30

  
	
  SECTION 8.

  	
  RELIANCE; WAIVERS; ETC

  	
  30

  
	
   

  	
  8.1

  	
  Reliance

  	
  30

  
	
   

  	
  8.2

  	
  No Warranties or
  Liability

  	
  30

  
	
   

  	
  8.3

  	
  No Waivers

  	
  30

  
	
  SECTION 9.

  	
  OBLIGATIONS UNCONDITIONAL

  	
  30

  
	
   

  	
  9.1

  	
  Credit Agreement
  Obligations Unconditional

  	
  30

  
	
   

  	
  9.2

  	
  Secured
  Counterparty Obligations Unconditional

  	
  31

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
  31

  
	
   

  	
  10.1

  	
  Conflicts

  	
  31

  
	
   

  	
  10.2

  	
  Continuing
  Nature of Provisions

  	
  31

  
	
   

  	
  10.3

  	
  Amendments

  	
  32

  
	
   

  	
  10.4

  	
  Information
  Concerning Financial Condition of the Borrowers and the other Loan Parties

  	
  32

  
	
   

  	
  10.5

  	
  Governing Law

  	
  32

  
	
   

  	
  10.6

  	
  Submission to
  Jurisdiction

  	
  32

  
	
   

  	
  10.7

  	
  Notices

  	
  33

  
	
   

  	
  10.8

  	
  Successors and
  Assigns

  	
  33

  
	
   

  	
  10.9

  	
  Headings

  	
  33

  
	
   

  	
  10.10

  	
  Severability

  	
  33

  
	
   

  	
  10.11

  	
  Counterparts;
  Integration; Effectiveness

  	
  33

  



 


ii

















 


	
   

  	
  10.12

  	
  Additional
  Secured Counterparties

  	
  33

  
	
   

  	
  10.13

  	
  Existing
  Intercreditor Agreement

  	
  34

  



 


 


Exhibits


Exhibit A                —            VPEM Documents


Exhibit B                —            Sowood Documents


Exhibit C                —            Form of Joinder Agreement


 


iii

















 


SUBORDINATION AND INTERCREDITOR
AGREEMENT


This Subordination
and Intercreditor Agreement dated as of December 19, 2005 (this “Agreement”)
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 (as
defined below), (b) Virginia Power Energy Marketing, Inc., a Virginia
corporation (“VPEM”), and each additional
counterparty which becomes a party to this Agreement in compliance with Section
10.12 (VPEM and each such additional counterparty, with its successors and
assigns, a “Secured Counterparty”), (c) Sowood
Commodity Partners Fund LP, a Delaware limited partnership (together with its
successors and assigns, “Sowood”), (d)
MxEnergy Holdings Inc., a Delaware corporation (“Parent”), and (e) MxEnergy Inc., a Delaware corporation (“MxEnergy”), and MxEnergy Electric Inc., a Delaware
corporation (“MxElectric”, and together with
MxEnergy, the “Borrowers”), and each of the other
Loan Parties (as defined below) party hereto.


INTRODUCTION


A.            The Borrowers, the Parent, the other
Loan Parties, the Credit Agreement Representative and certain financial
institutions are parties to a Credit Agreement dated as of December 19, 2005
(as amended, supplemented, restated, or otherwise modified from time to time,
the “Initial 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 VPEM are parties to agreements described on Exhibit A (as the same
may be amended, supplemented, restated, or otherwise modified from time to
time, collectively, the “VPEM Agreement”)
pursuant to which VPEM has agreed, among other things, to sell natural gas to
MxEnergy and its subsidiaries and to extend credit to MxEnergy and its
subsidiaries in connection therewith and to provide commodity price hedging
arrangements for and commodity future sales to MxEnergy and its subsidiaries.


C.            MxEnergy and Sowood are parties to agreements
described on Exhibit B (as the same may be amended, supplemented, restated, or
otherwise modified from time to time, collectively, the “Sowood
Agreement”) pursuant to which Sowood has made a $12 million
subordinated revolving line of credit and a $9 million subordinated term loan
available to MxEnergy.


D.            The Borrowers and the other Loan
Parties propose to grant (a) to the Credit Agreement Representative a
first-priority security interest in the Credit Agreement Primary Collateral and
a second priority security interest in the Secured Counterparty Primary
Collateral as security for the Credit Agreement Obligations, (b) to each
Secured Counterparty a first-priority security interest in such Secured
Counterparty’s Secured Counterparty Primary Collateral and a second-priority
security interest in the Credit Agreement Primary Collateral as security for
such Secured Counterparty’s Secured Counterparty Obligations, and (c) to Sowood
a third-priority security interest in the Credit Agreement Primary Collateral
and the Secured Counterparty Primary Collateral as security for payment and
performance of Sowood Obligations.


 

















 


Therefore, the
parties to this Agreement agree as follows:


Section
1.  Definitions.


The following
terms, as used herein, have the following meanings:


“Bankruptcy
Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as
amended from time to time.


“Cash
Management Obligations” means, with respect to any Loan Party, any
obligations of such Loan Party owed to a Credit Agreement Representative or any
Credit Agreement Secured Party (or any of its affiliates) in respect of
treasury management arrangements, depositary arrangements, or other cash
management services.


“Collateral”
means the Credit Agreement Primary Collateral and the Secured Counterparty
Primary Collateral.


“Credit
Agreement” means, collectively, (a) the Initial Credit Agreement and (b)
any other credit agreement, loan agreement, note agreement, promissory note,
indenture, or other agreement or instrument evidencing or governing the terms
of any indebtedness or other financial accommodation that has been incurred to
extend, replace, refinance, or refund in whole or in part the indebtedness and
other obligations outstanding under the Initial Credit Agreement or any other
agreement or instrument referred to in this clause (b) unless such agreement or
instrument expressly provides that it is not intended to be and is not a Credit
Agreement hereunder.  Any reference to
the Credit Agreement in this Agreement shall be deemed a reference to any Credit
Agreement then in effect.


“Credit
Agreement Documents” means the Credit Agreement and each Credit Agreement
Security Document.


“Credit
Agreement Obligations” means, with respect to any Credit Agreement, (a) all
principal of and interest (including without limitation any Post-Petition
Interest) and premium (if any) on all loans made pursuant to such Credit
Agreement, (b) all reimbursement obligations (if any) and interest thereon
(including without limitation any Post-Petition Interest) with respect to any
letter of credit or similar instruments issued pursuant to such Credit
Agreement, (c) all Hedging Obligations of any Loan Party with a Credit
Agreement Secured Party (or any of its affiliates) secured in connection with
such Credit Agreement, (d) all Cash Management Obligations of any Loan Party
owed to a Credit Agreement Secured Party (or any of its affiliates) secured in
connection with such Credit Agreement, and (e) all fees, expenses, and other
amounts payable from time to time pursuant to such Credit Agreement and the
related Credit Agreement Documents, in each case whether allowed or allowable
in an Insolvency Proceeding.  To the
extent any payment with respect to any Credit Agreement Obligation (whether by
or on behalf of any Loan Party, as proceeds of security, enforcement of any
right of setoff or otherwise) is declared to be a fraudulent conveyance or a
preference in any respect, set aside, or required to be paid to a debtor in
possession, any Secured Counterparty, Sowood, any receiver or similar


 


2

















 


Person,
then the obligation or part thereof originally intended to be satisfied shall,
for the purposes of this Agreement and the rights and obligations of the Credit
Agreement Secured Parties, the Secured Counterparties, and Sowood, be deemed to
be reinstated and outstanding as if such payment had not occurred.


“Credit
Agreement Obligations Payment Date” means, with respect to any Credit
Agreement and the Hedging Obligations and Cash Management Obligations secured
in connection with such Credit Agreement, the first date on which (a) the
Credit Agreement Obligations (other than those that constitute Unasserted
Contingent Obligations) have been indefeasibly paid in cash in full (or cash
collateralized or defeased in accordance with the terms of the such Credit
Agreement and the related Credit Agreement Documents), (b) all commitments to
extend credit under such Credit Agreement have been terminated, (c) there are
no outstanding letters of credit or similar instruments issued under such
Credit Agreement (other than such as have been cash collateralized or defeased
in accordance with the terms of the related Credit Agreement Security
Documents), and (d) the Credit Agreement Representative under such Credit Agreement
has delivered a written notice to each other Credit Agreement Representative,
the Secured Counterparty, and Sowood stating that the events described in
clauses (a), (b), and (c) have occurred to the satisfaction of the Credit
Agreement Representative.


“Credit
Agreement Primary Collateral” means all assets, whether now owned or
hereafter acquired, of the Borrowers or any other Loan Party in which a Lien is
granted or purported to be granted to any Credit Agreement Secured Party as
security for any Credit Agreement Obligation, other than the Secured
Counterparty Primary Collateral.


“Credit
Agreement Representative” has the meaning set forth in the introductory
paragraph of this Agreement.  If at
anytime there is more than one Credit Agreement, the Credit Agreement
Representative for each Credit Agreement shall be the Person designated as such
under each Credit Agreement.


“Credit
Agreement Secured Parties” means the Credit Agreement Representatives and the
holders of the Credit Agreement Obligations.


“Credit
Agreement Security Documents” means the “Security Documents” as defined in
the Credit Agreement and any other documents that are designated under any
Credit Agreement as “Credit Agreement Security Documents” for purposes of this
Agreement.


“Distribution”
means, with respect to any Loan Party, any payment or distribution by such Loan
Party of Property of any kind or character (whether in cash, securities,
assets, by set-off or otherwise and including by purchase, redemption or other
acquisition) on account of indebtedness or obligations of such Loan Party or
another Loan Party.


“Enforcement
Action” means, with respect to any Credit Agreement Obligations, the
Secured Counterparty Obligations, or Sowood Obligations, any demand for payment
or acceleration thereof, the exercise of any rights and remedies with respect
to any Collateral securing such obligations or the commencement or prosecution
of enforcement of any of the


 


3

















 


rights
and remedies under, as applicable, the Credit Agreement Documents, the Secured
Counterparty Documents, or Sowood Documents or applicable law, including the
exercise of any rights of set-off or recoupment and the exercise of any rights
or remedies of a secured creditor under the UCC of any applicable jurisdiction
or under the Bankruptcy Code.


“Hedging
Obligations” means, with respect to any Loan Party, any obligations of such
Loan Party owed to the Credit Agreement Representative or any Credit Agreement
Secured Party (or any of its affiliates) or any Secured Counterparty in respect
of any Swap Contract.


“Initial Credit
Agreement” has the meaning set forth in the introduction to this Agreement.


“Insolvency
Proceeding” means any proceeding in respect of bankruptcy, insolvency,
winding up, receivership, dissolution, or assignment for the benefit of
creditors, in each of the foregoing events whether under the Bankruptcy Code or
any similar federal, state, or foreign bankruptcy, insolvency, reorganization,
receivership, or similar law.


“Lenders”
means the “Lenders” as defined in the Initial Credit Agreement or any Persons
that are designated under a Credit Agreement as the “Lenders” for purposes of
this Agreement.


“Lien”
means, with respect to any asset, any mortgage, deed of trust, deed to secure
debt, lien, pledge, hypothecation, assignment, encumbrance, charge, or security
interest in, on, or of such asset.


“Loan Party”
means the Borrowers and each direct or indirect affiliate or shareholder (or
equivalent) of the Borrowers or any of their affiliates that are now or
hereafter become a party to any Credit Agreement Document, Secured Counterparty
Document, or Sowood Document.


“Person” means
and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships,
joint stock companies, joint ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations, whether
or not legal entities, and governments and agencies and political subdivisions
thereof.


“Post-Petition
Interest” means any interest or entitlement to fees or expenses that
accrues after the commencement of any Insolvency Proceeding, whether allowed or
allowable in any such Insolvency Proceeding.


“Primary Secured
Counterparty” has the meaning set forth in Section 3.1(c).


“Proceeding”
means, with respect to any Loan Party, any voluntary or involuntary insolvency,
bankruptcy, receivership, custodianship, liquidation, dissolution, or
reorganization proceeding, assignment for the benefit of creditors, appointment
of a custodian, receiver, trustee or other officer with similar powers or any
other proceeding for the liquidation, dissolution or other winding up of such
Loan Party.


 


4

















 


“Property
with respect to any Person means any interest in any kind of property or asset,
whether real, personal or mixed, tangible or intangible, of such Person.


“Reorganization
Subordinated Securities” means equity securities or debt securities of any
Loan Party or any other Person, the payment of which is subordinated in right
of payment, at least to the extent provided in this Agreement with respect to
the Sowood Obligations, to the payment of all Senior Obligations at the time
outstanding and to the payment of all debt securities issued in exchange
therefor to the holders of Senior Obligations at the time outstanding, in each
case provided for by a plan of reorganization, composition, arrangement,
adjustment or readjustment of such Loan Party or of its securities, which plan
has been adopted pursuant to a proceeding under the Bankruptcy Code or other
federal or state judicial proceeding and confirmed or approved by the court
having jurisdiction of such proceeding; provided that each Credit Agreement
Representative, each Secured Counterparty, Sowood, and the Loan Parties shall
have entered into such supplements to or modifications to this Agreement as any
Credit Agreement Representative or Secured Counterparty may reasonably request
to reflect the continued subordination of the Reorganization Subordinated
Securities to the Senior Obligations (or notes or other securities issued in
substitution of all or a portion of the Senior Obligations) to the same extent
as provided herein).


“Secondary Secured
Counterparty” has the meaning set forth in Section 3.1(c).


“Secured
Counterparty” has the meaning set forth in the introductory paragraph of
this Agreement.


“Secured
Counterparty Agreement” means the VPEM Agreement or any other agreement to
which a Loan Party is a party and pursuant to which a Secured Counterparty
sells electricity or gas or related products to a Loan Party or provides
commodity price hedging or futures sales of commodities to a Loan Party,
including any Swap Contracts for commodities.


“Secured
Counterparty Documents” means, for any Secured Counterparty, each Secured
Counterparty Agreement and each Secured Counterparty Security Document to which
such Secured Counterparty is a party.


“Secured
Counterparty Letter of Credit” means each standby letter of credit issued
and outstanding from time to time under the Credit Agreement for the benefit
of, and approved by, a Secured Counterparty to secure in whole or in part the
Secured Counterparty Obligations.


“Secured
Counterparty Obligations” means, with respect to any Secured Counterparty,
(a) all amounts owed under any Secured Counterparty Document in respect of the
sale of gas, electricity or related products by such Secured Counterparty, (b)
all Hedging Obligations of any Loan Party with such Secured Counterparty (or
any of its affiliates) secured in connection with such Secured Counterparty
Document, and (c) all other amounts payable under any Secured Counterparty
Document with such Secured Counterparty and interest on such amounts (including
without limitation any Post-Petition Interest), whether allowed or allowable in
an Insolvency Proceeding.  To the extent
any payment with respect to any Secured Counterparty


 


5

















 


Obligation
(whether by or on behalf of any Loan Party, as proceeds of security,
enforcement of any right of setoff, or otherwise) is declared to be a
fraudulent conveyance or a preference in any respect, set aside or required to
be paid to a debtor in possession, any Credit Agreement Secured Party, Sowood,
or any receiver or similar Person, then the obligation or part thereof
originally intended to be satisfied shall, for the purposes of this Agreement
and the rights and obligations of the Credit Agreement Secured Parties, the
Secured Counterparties, and Sowood, be deemed to be reinstated and outstanding
as if such payment had not occurred.


“Secured
Counterparty Obligations Payment Date” means, with respect to any Secured
Counterparty Document and the Hedging Obligations secured in connection with
such Secured Counterparty Document, the first date on which (a) the Secured
Counterparty Obligations (other than those that constitute Unasserted
Contingent Obligations) with respect to such Secured Counterparty Document have
been indefeasibly paid in cash in full or cash collateral in at least the
outstanding amount of such Secured Counterparty Obligations has been posted to
secure such Secured Counterparty Obligations, (b) all commitments, if any, to
provide electricity or gas or related products or commodity price hedging or
future sales of commodities under such Secured Counterparty Document have been
terminated, and (c) the Secured Counterparty under such Secured Counterparty
Document has delivered a written notice to each Credit Agreement Representative,
each other Secured Counterparty, and Sowood stating that the events described
in clauses (a) and (b) have occurred to the satisfaction of such Secured
Counterparty.


“Secured
Counterparty Primary Collateral” means, with respect to each Secured
Counterparty, all rights, whether now owned or hereafter acquired, and proceeds
therefrom under 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 (a) for which such Secured Counterparty provides (i) any of the
electricity or gas or related products or (ii) commodity price hedging or
futures sales of commodities, and (b) 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.


“Secured Counterparty
Security Documents” means any document executed by a Loan party that
purports to secure such Loan Party’s Secured Counterparty Obligations and any
other documents that are designated under a Secured Counterparty Agreement as “Secured
Counterparty Security Documents” for purposes of this Agreement.


“Secured
Parties” means the Credit Agreement Secured Parties, the Secured
Counterparties, and Sowood.


“Security
Documents” means the Credit Agreement Security Documents, the Secured
Counterparty Security Documents, and the Sowood Security Documents.


“Senior Default”
means any Default or Event of Default, as such terms are defined in any Credit
Agreement Documents or any default, event of default, termination event or
similar event under any Secured Counterparty Document.


 


6

















 


“Senior
Obligations” means the Credit Agreement Obligations and the Secured
Counterparty Obligations.


“Senior
Obligations Acceleration” means the acceleration of any Credit Agreement Obligations
or Secured Counterparty Obligations (including automatic acceleration of either
of the foregoing upon any Proceeding).


“Sowood
Agreement” has the meaning set forth in the introduction to this Agreement.


“Sowood
Collateral” means all assets, whether now owned or hereafter acquired by a
Borrower or any other Loan Party, in which a Lien is granted or purported to be
granted to Sowood as security for the Sowood Obligations.


“Sowood
Documents” means the Sowood Agreement and Sowood Security Document.


“Sowood
Obligations” means (a) all principal of and interest (including without
limitation any Post-Petition Interest) and premium (if any) on all indebtedness
under the Sowood Documents and (b) all fees, expenses, and other amounts
payable from time to time pursuant to the Sowood Documents, in each case
whether allowed or allowable in an Insolvency Proceeding.  To the extent any payment with respect to the
Sowood Obligations (whether by or on behalf of any Loan Party, as proceeds of
security, enforcement of any right of setoff or otherwise) is declared to be a
fraudulent conveyance or a preference in any respect, set aside or required to
be paid to a debtor in possession, any Credit Agreement Secured Party, any
Secured Counterparty, or any receiver or similar Person, then the obligation or
part thereof originally intended to be satisfied shall, for the purposes of
this Agreement and the rights and obligations of the Credit Agreement Secured
Parties, the Secured Counterparties, and Sowood, be deemed to be reinstated and
outstanding as if such payment had not occurred.


“Sowood
Obligations Payment Date” means the first date on which (a) the Sowood
Obligations (other than those that constitute Unasserted Contingent
Obligations) have been indefeasibly paid in cash in full, (b) all commitments
to extend credit under the Sowood Agreement have been terminated, and (c)
Sowood has delivered a written notice to each Credit Agreement Representative
and each Secured Counterparty stating that the events described in clauses (a)
and (b) have occurred to the satisfaction of Sowood.


“Sowood
Security Documents” means the Security Agreement (as defined in Sowood
Agreement) and any documents that are designated under a Sowood Agreement as “Sowood
Security Documents” for purposes of this Agreement.


“Subsidiary”
of a Person means any corporation, association, partnership or other business
entity of which more than 50% of the outstanding equity interests having by the
terms thereof ordinary voting power under ordinary circumstances to elect a
majority of the board of directors or Persons performing similar functions (or,
if there are no such directors or Persons, having general voting power) of such
entity (irrespective of whether at the time equity interests of any other class
or classes of such entity shall or might have voting power upon the occurrence


 


7

















 


of any
contingency) is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more Subsidiaries of such Person or by one or
more Subsidiaries of such Person.


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, commodity futures contracts, equity or equity
index swaps or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether any such transaction is governed
by or subject to any master agreement and (b) any and all transactions of any
kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement with respect
to the foregoing (any such master agreement, together with any related
schedules, a “Master Financial Agreement”), including any such
obligations or liabilities under any Master Financial Agreement.


“Unasserted
Contingent Obligations” shall mean, at any time, obligations for taxes,
costs, indemnifications, reimbursements, damages, and other liabilities
(excluding (a) the principal of, and interest and premium (if any) on, and fees
and expenses relating to, any Credit Agreement Obligation, Secured Counterparty
Obligation, or Sowood Obligation and (b) contingent reimbursement obligations
in respect of amounts that may be drawn under outstanding letters of credit) in
respect of which no assertion of liability (whether oral or written) and no
claim or demand for payment (whether oral or written) has been made (and no
notice for indemnification has been issued by the indemnitee) at such time.


“UCC” shall
mean the Uniform Commercial Code as in effect from time to time in the State of
New York.


“VPEM Agreement”
has the meaning set forth in the introduction to this Agreement.


Section
2.              Subordination.


2.1           Subordination of
Sowood Obligations to Senior Obligations. 
Each Loan Party covenants and agrees, and Sowood (whether upon original
issue or upon transfer or assignment) likewise covenants and agrees, notwithstanding
anything to the contrary contained in any of the Sowood Documents, that the
payment of any and all of the Sowood Obligations shall be subordinate and
subject in right and time of payment, to the extent and in the manner
hereinafter set forth, to the payment of all Senior Obligations.  Each holder of Senior Obligations, whether
such Senior Obligations are now outstanding or hereafter created, incurred,
assumed or guaranteed, shall be deemed to have acquired Senior Obligations in
reliance upon the provisions contained in this Agreement.  Sowood waives any and all notice of the
creation, renewal,


 


8

















 


increase,
extension or accrual of any of the Senior Obligations and notice of or proof of
reliance by any holder of Senior Obligations upon this Agreement.  All Senior Obligations shall be deemed
conclusively to have been created, contracted or incurred in reliance upon this
Agreement, and all dealings between the Loan Parties and any holder of Senior
Obligations, including the transactions in respect of the Senior Obligations,
shall be deemed to have been consummated in reliance upon this Agreement.


2.2           Certain
Agreements.


(a)           Sowood agrees not to initiate,
prosecute or participate in any claim, action or other proceeding challenging
the enforceability, validity, perfection or priority of this Agreement.  The Loan Parties shall give prompt notice to
Sowood and each Credit Agreement Representative and each Secured Counterparty
of any Proceeding with respect to any Loan Party or of its securities or the
commencement of any action by any creditor to realize upon any assets of any
Loan Party.


(b)           The Senior Obligations shall continue
to be treated as Senior Obligations and the provisions of this Agreement shall
continue to govern the relative rights and priorities of Credit Agreement
Representative, the Credit Agreement Secured Parties, the Secured
Counterparties, and Sowood even if all or part of the Senior Obligations or the
security interests securing the Senior Obligations are subordinated, set aside,
avoided, invalidated or disallowed in connection with any such Proceeding, and
this Agreement, and any such portion of the Senior Obligations originally
intended to be satisfied and any such security interests, shall be reinstated
if at any time any payment of any of the Senior Obligations is rescinded or
must otherwise be returned by any holder of Senior Obligations or any
representative of such holder.


2.3           Sowood
Obligations Payment Prohibition. 
Notwithstanding any of the terms of the Sowood Documents, any Loan Party
hereby agrees that it may not make, and Sowood hereby agrees that it will not
accept, any Distribution (other than a distribution of Reorganization
Subordinated Securities) with respect to the Sowood Obligations until the
Credit Obligations Payment Date for all Credit Agreement Obligations and the
Secured Counterparty Obligations Payment Date for all Secured Counterparty
Obligations has occurred; provided that the foregoing shall not prohibit:


(a)           payments of
principal of the Sowood Obligations with respect to revolving loans when (i) no
Senior Default exists immediately before and after giving effect to such
payment; (ii) Borrowing Base Availability (as defined in the Initial Credit
Agreement) is at least $15,000,000.00 after giving effect to such payment; and
(iii) the Parent’s ratio of Consolidated EBITDA for the four fiscal quarters
ending immediately before any such payment to Consolidated Interest Expense for
such period is less than 3.0 to 1.0;


(b)           payments of interest
on the Sowood Obligations when no Senior Default exists immediately before and after
giving effect to such payment; and


 


9

















 


(c)           non-cash payment of regularly
scheduled interest and default interest on the Sowood Obligations payable in
kind or by compounding pursuant to and in accordance with the terms of the
Sowood Documents.


The
Loan Parties shall resume Distributions in respect of the Sowood Obligations
prohibited under the foregoing provisions of Section 2.3 (provided that such
Distributions are not then prohibited under another provision of this
Agreement), including any amounts in arrears by reason of the operation of the
preceding provisions of Section 2.3, immediately upon the earlier to occur of
(i) if applicable, the cure or waiver of such Senior Default in accordance with
the applicable provisions of the applicable Credit Agreement Documents and
Secured Counterparty Documents and the satisfaction of the conditions set forth
in Sections 2.3(a)(ii) and (iii) and (ii) the date upon which the Credit
Agreement Obligations Payment Date for all Credit Agreement Obligations and the
Secured Counterparty Obligations Payment Date for all Secured Counterparty
Obligations shall have occurred.


2.4           Sowood
Obligations Standstill Provisions. 
Until the earliest to occur of (a) 365 days after the occurrence of the
Senior Default, (b) a Senior Obligations Acceleration, (c) commencement of any
Proceeding against the Borrower, (d) the date upon which the Credit Agreement
Obligations Payment Date for all Credit Agreement Obligations and the Secured
Counterparty Obligations Payment Date for all Secured Counterparty Obligations
has occurred, and (e) the institution or commencement by any Credit Agreement Secured
Party or Secured Counterparty of any remedies against any Loan Party or in
respect of any of the Senior Obligations to enforce payment of, or foreclose
upon or exercise other remedies with respect to any collateral securing payment
of, any Senior Obligations, Sowood shall not, without the prior written consent
of each Credit Agreement Representative and each Secured Counterparty, take any
Enforcement Action with respect to the Sowood Obligations.  Notwithstanding the foregoing, subject to the
terms of Section 2.2(d) hereof, Sowood may file proofs of claim against any
Loan Party in any Proceeding involving any Loan Party (and the principal amount
of the Sowood Obligations may be accelerated upon the occurrence of a
Proceeding with respect to a Loan Party).


2.5           Incorrect
Payments.  (a)  If any Distribution on account of the Sowood
Obligations is made and received by Sowood in contravention of the provisions
of Section 2.3 or 2.4, such Distribution shall not be commingled with any of
the assets of Sowood, shall be held in trust by Sowood for the benefit of the
Credit Agreement Secured Parties and the Secured Counterparties.


(b)           Except for Distributions permitted
under Section 2.3, (i)  any Distribution
which would otherwise, but for the terms hereof, be payable or deliverable in
respect of the Sowood Obligations (other than a distribution of Reorganization
Subordinated Securities) shall be paid or delivered (in the same form as
received, with any necessary endorsements) (A) first, directly to any Credit Agreement
Representative to be held and/or applied by such Credit Agreement
Representative in accordance with the terms of the applicable Credit Agreement
Documents until the Credit Obligations Payment Date has occurred for all Credit
Agreement Obligations and (B) second, directly to any Secured Counterparty to
be held and/or applied by


 


10

















 


such Secured Counterparty
in accordance with the terms of the applicable Secured Counterparty Documents
until the Secured Counterparty Obligations Payment Date has occurred for all
Secured Counterparty Obligations.


(ii)           (A) If more than
one Credit Agreement Representative exists, then the Credit Agreement
Representative receiving the Distribution shall transfer to the other Credit
Agreement Representative its ratable share of such Distributions based on the
outstanding Credit Agreement Obligations at such time and (B) if more than one
Secured Counterparty exists, then the Secured Counterparty receiving the
Distribution shall transfer to the other Secured Counterparties its ratable
share of such Distributions based on the outstanding Secured Counterparty
Obligations at such time.


(iii)          Sowood irrevocably
authorizes, empowers and directs any debtor, debtor in possession, receiver,
trustee, liquidator, custodian, conservator or other Person having authority,
to pay or otherwise deliver all such Distributions to a Credit Agreement
Representative until the Credit Obligations Payment Date has occurred for all
Credit Agreement Obligations and to a Secured Counterparty until the Secured
Counterparty Obligations Payment Date has occurred for all Secured Counterparty
Obligations.  Sowood also irrevocably
authorizes and empowers each Credit Agreement Representative and each Secured
Counterparty, in the name of Sowood, to demand, sue for, collect and receive
any and all such Distributions


(c)           The Loan Parties
shall promptly notify Sowood of any change in the identity of the Credit
Agreement Representatives and Secured Counterparties from time to time.  In the event that Sowood determines in good
faith that further evidence is required with respect to the right of any holder
of Senior Obligations to participate in any Distribution pursuant to this
Agreement, Sowood may request such Person to furnish evidence to the reasonable
satisfaction of Sowood as to the amount of Senior Obligations held by such
Person, the extent to which such Person is entitled to participate in such
Distribution and any other facts pertinent to the rights of such Person under
this Agreement, and if such evidence is not furnished Sowood may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such Distribution; provided that, upon the written request of
such Person to Sowood, such Distribution shall be made to the court having
jurisdiction over such judicial determination or to another Person mutually
satisfactory to such Person and Sowood, as escrowee, to be held and invested
pending such judicial determination in accordance with such instructions as
shall be mutually satisfactory to such Person and Sowood and upon such judicial
determination becoming final and nonappealable to be distributed in accordance
therewith to the Person entitled thereto.


2.6           Sale, Transfer or
other Disposition of Sowood Obligations.


(a)           Sowood shall not
sell, assign, pledge, dispose of or otherwise transfer all or any portion of
the Sowood Obligations or any Sowood Document: (i) without giving prior written
notice of such action to the Credit Agreement Representatives and the Secured
Counterparties and (ii) unless, prior to the consummation of any such action,
the transferee thereof shall execute and deliver to the Credit Agreement
Representatives and the Secured Counterparties an agreement substantially
identical to this Agreement, providing for the


 


11

















 


continued
subordination of the Sowood Obligations to the Senior Obligations as provided
herein and for the continued effectiveness of all of the rights of Credit
Agreement Representatives and the Credit Agreement Secured Parties arising
under this Agreement.


(b)           Notwithstanding the
foregoing, the subordination effected hereby shall survive any sale,
assignment, pledge, disposition or other transfer of all or any portion of the
Sowood Obligations in violation of the foregoing prohibition, and the terms of
this Agreement shall be binding upon the successors and assigns of Sowood, as
provided in Section 10.8 hereof.


2.7           Legends.  Until the termination of this Agreement in
accordance with Section 10.2 hereof, Sowood will cause to be clearly,
conspicuously and prominently inserted on the face of each Sowood Document, as
well as any renewals or replacements thereof, the following legend (or a legend
substantially identical thereto):


“This instrument
and the rights and obligations evidenced hereby are and shall at all times be
and remain subordinated in right of payment to the extent and in the manner set
forth in that certain Subordination and Intercreditor Agreement dated as of December
19, 2005 among (a) Société Générale, as Credit Agreement Representative, (b)
Virginia Power Energy Marketing, Inc., a Virginia corporation, and each
additional counterparty which becomes a party to such Subordination and
Intercreditor Agreement in compliance with Section 10.12 thereof, (c) Sowood
Commodity Partners Fund LP, a Delaware limited partnership, (d) MxEnergy
Holdings Inc., a Delaware corporation, and (e) MxEnergy Inc., a Delaware
corporation, and MxEnergy Electric Inc., a Delaware corporation, and each of
the other Loan Parties (as defined therein) party thereto to the prior payment
in full of all Senior Obligations (as defined therein), as amended,
supplemented, or otherwise modified from time to time; and each holder of this
instrument, by its acceptance hereof, irrevocably agrees to be bound by the
provisions of such Subordination and Intercreditor Agreement.”


2.8           Final Payment of
Senior Obligations.  Unless
applicable law requires otherwise, any Distribution or other proceeds of
Enforcement Action remaining in the possession of a Credit Agreement
Representative or a Secured Counterparty after the Credit Agreement Obligations
Payment Date for all Credit Agreement Obligations and the Secured Counterparty
Obligations Payment Date for all Secured Counterparty Obligations have occurred
shall be held in trust by it for the benefit of the Sowood and promptly paid or
delivered to Sowood in the form received for application to the Sowood
Obligations.


Section
3.  Lien Priorities.


3.1           Subordination of
Liens.  (a)  Any and all Liens now existing or hereafter
created or arising in favor of any Secured Counterparty in the Credit Agreement
Primary Collateral, regardless of how acquired, whether by grant, statute,
operation of law, subrogation, or otherwise are expressly junior in priority,
operation, and effect to any and all Liens now existing or hereafter created or
arising in favor of the Credit Agreement Secured Parties in the Credit
Agreement Primary Collateral, notwithstanding (i) anything to the contrary
contained in any agreement or filing to which any Secured Counterparty may now
or hereafter be a party, and


 


12

















 


regardless of the
time, order, or method of grant, attachment, recording, or perfection of any
financing statements or other Liens or any defect or deficiency or alleged
defect or deficiency in any of the foregoing, (ii) any provision of the UCC or
any applicable law or any Credit Agreement Document or Secured Counterparty Document
or any other circumstance whatsoever, and (iii) the fact that any such Liens in
favor of any Credit Agreement Secured Party are (A) subordinated to any Lien
securing any obligation of any Loan Party other than the Secured Counterparty
Obligations or (B) otherwise subordinated, voided, avoided, invalidated, or
lapsed.


(b)           Any and all Liens now existing or
hereafter created or arising in favor of any Credit Agreement Secured Party in
the Secured Counterparty Primary Collateral, regardless of how acquired,
whether by grant, statute, operation of law, subrogation, or otherwise are
expressly junior in priority, operation, and effect to any and all Liens now
existing or hereafter created or arising in favor of the Secured Counterparties
in the Secured Counterparty Primary Collateral, notwithstanding (i) anything to
the contrary contained in any agreement or filing to which any Credit Agreement
Secured Party may now or hereafter be a party, and regardless of the time,
order, or method of grant, attachment, recording, or perfection of any
financing statements or other Liens or any defect or deficiency or alleged
defect or deficiency in any of the foregoing, (ii) any provision of the UCC or
any applicable law or any Credit Agreement Document or Secured Counterparty
Document or any other circumstance whatsoever, and (iii) the fact that any such
Liens in favor of any Secured Counterparty are (A) subordinated to any Lien
securing any obligation of any Loan Party other than the Credit Agreement
Obligations or (B) otherwise subordinated, voided, avoided, invalidated, or
lapsed.


(c)           Any and all Liens now existing or
hereafter created or arising in favor of any Secured Counterparty (the “Secondary Secured Counterparty”) in the Secured Counterparty
Primary Collateral of another Secured Counterparty (the “Primary
Secured Counterparty”), regardless of how acquired, whether by
grant, statute, operation of law, subrogation, or otherwise are expressly
junior in priority, operation, and effect to any and all Liens now existing or
hereafter created or arising in favor of such Primary Secured Counterparty in
the Secured Counterparty Primary Collateral of such Primary Secured
Counterparty, notwithstanding (i) anything to the contrary contained in any
agreement or filing to which such Secondary Secured Counterparty may now or
hereafter be a party, and regardless of the time, order, or method of grant,
attachment, recording, or perfection of any financing statements or other Liens
or any defect or deficiency or alleged defect or deficiency in any of the
foregoing, (ii) any provision of the UCC or any applicable law or any Secured
Counterparty Document or any other circumstance whatsoever, and (iii) the fact
that any such Liens in favor of such Primary Secured Counterparty are (A) subordinated
to any Lien securing any obligation of any Loan Party other than such Primary
Secured Counterparty’s Secured Counterparty Obligations or (B) otherwise
subordinated, voided, avoided, invalidated, or lapsed.


(d)           Any and all Liens
now existing or hereafter created or arising in favor of Sowood in the
Collateral, regardless of how acquired, whether by grant, statute, operation of
law, subrogation, or otherwise are expressly junior in priority, operation, and
effect to any and all Liens now existing or hereafter created or arising in
favor of the Credit Agreement Secured


 


13

















 


Parties or the
Secured Counterparties in the Collateral, notwithstanding (i) anything to the
contrary contained in any agreement or filing to which any Credit Agreement
Secured Party or Secured Counterparty may now or hereafter be a party, and
regardless of the time, order, or method of grant, attachment, recording, or
perfection of any financing statements or other Liens or any defect or
deficiency or alleged defect or deficiency in any of the foregoing, (ii) any
provision of the UCC or any applicable law or any Credit Agreement Document,
Secured Counterparty Document, or Sowood Document or any other circumstance
whatsoever, and (iii) the fact that any such Liens in favor of any Credit
Agreement Secured or Secured Counterparty are (A) subordinated to any Lien
securing any obligation of any Loan Party other than Sowood Obligations or (B)
otherwise subordinated, voided, avoided, invalidated, or lapsed.


(e)           None of any Credit
Agreement Secured Party, any Secured Counterparty, or Sowood shall object to or
contest, or support any other Person in contesting or objecting to, in any
proceeding (including without limitation, any Insolvency Proceeding), the
validity, extent, perfection, priority (consistent with this Agreement), or
enforceability of any security interest in the Collateral granted to the
other.  Notwithstanding any failure by
any Credit Agreement Secured Party, any Secured Counterparty, or Sowood to
perfect its security interests in the Collateral or any avoidance, invalidation
or subordination by any third party or court of competent jurisdiction of the
security interests in the Collateral granted to the Credit Agreement Secured
Parties, the Secured Counterparties, or Sowood, the priority and rights as
among the Credit Agreement Secured Parties, the Secured Counterparties, and
Sowood with respect to the Collateral shall be as set forth in this Agreement.


(f)            The provisions of this Agreement are
intended solely to govern the respective Lien priorities as among the Credit
Agreement Secured Parties, the Secured Counterparties, and Sowood and shall not
impose on the Credit Agreement Secured Parties, the Secured Counterparties, or
Sowood any obligations in respect of any Collateral (or any proceeds thereof)
that would conflict with prior perfected Liens or any claims thereon in favor
of any other Person that is not a Secured Party.


3.2           Nature of
Obligations.  (a) Each of the Credit
Agreement Representatives, the Secured Counterparties, and Sowood acknowledges
(i) that a portion of the Credit Agreement Obligations or the Sowood
Obligations may be revolving in nature and that the amount of Secured
Counterparty Obligations change from time to time and (ii) that the amount of
the Credit Agreement Obligations, Secured Counterparty Obligations, and Sowood
Obligations that may be outstanding at any time may be increased or reduced and
subsequently reborrowed or reincurred, and that the terms of the Credit
Agreement Obligations, the Secured Counterparty Obligations, and Sowood
Obligations may be modified, extended, or amended from time to time, and that
the aggregate amount of the Credit Agreement Obligations, Secured Counterparty
Obligations, and Sowood Obligations may be increased, replaced, or refinanced,
in each event, without notice to or consent by any Credit Agreement Secured
Party, the Secured Counterparty, or Sowood and without affecting the provisions
hereof.


(b)           The Lien priorities provided in
Section 3.1 shall not be altered or otherwise affected by any such amendment,
modification, supplement, extension, repayment,


 


14

















 


reborrowing,
reincurrence, increase, replacement, renewal, restatement, or refinancing of
any of the Credit Agreement Obligations, the Secured Counterparty Obligations,
or the Sowood Obligations or any portion thereof.


(c)           Nothing in the
foregoing paragraphs (a) and (b) shall be construed as a consent to any
modification, supplement, extension, repayment, reborrowing, reincurrence,
increase, replacement, renewal, restatement, or refinancing of any of the
Credit Agreement Obligations, the Secured Counterparty Obligations, or Sowood
Obligations or any portion thereof.


3.3           Agreements Regarding
Actions to Perfect Liens.  (a)  Each of the Credit Agreement Representatives,
the Secured Counterparties, and Sowood hereby acknowledges that, to the extent
that it holds, or a third party holds on its behalf, physical possession of or “control”
(as defined in the UCC) over Collateral pursuant to any Security Document, such
possession or control is also for the benefit of each of each Credit Agreement
Representative, each Secured Counterparty, and Sowood solely to the extent
required to perfect their security interest in such Collateral.  Nothing in the preceding sentence shall be
construed to impose any duty on any Credit Agreement Representative, any
Secured Counterparty, or Sowood (or any third party acting on its behalf) with
respect to such Collateral or provide any Credit Agreement Representative, any
Secured Counterparty, or Sowood with any rights with respect to such Collateral
beyond those specified in this Agreement or the Security Documents.


(b)           (i) After the occurrence of a Credit
Agreement Obligations Payment Date, the applicable Credit Agreement
Representative shall (A)(1) if the Credit Agreement Obligations Payment Date
has not occurred for any other Credit Agreement Obligations, deliver to any
other Credit Agreement Representative, at the Borrower’s sole cost and expense,
the Collateral in its possession or control together with any necessary
endorsements to the extent required by such Credit Agreement Representative’s
Credit Agreement Documents, (2) if the Credit Agreement Obligations Payment
Date has occurred for all Credit Agreement Obligations and a Secured
Counterparty Obligations Payment Date has not occurred for any Secured
Counterparty, deliver to any Secured Counterparty, at the Borrower’s sole cost
and expense, the Collateral in its possession or control together with any
necessary endorsements to the extent required by such Secured Counterparty’s
Secured Counterparty Documents, and (3) if the Secured Counterparty Obligations
Payment Date has occurred for all Secured Counterparty Obligations and the
Credit Agreement Obligations Payment Date has occurred for all Credit Agreement
Obligations, deliver to Sowood, at the Borrower’s sole cost and expense, the
Collateral in its possession or control together with any necessary endorsements
to the extent required by the Sowood Documents or (B) direct and deliver such
Collateral as a court of competent jurisdiction otherwise directs.


(ii)           After the
occurrence of a Secured Counterparty Obligations Payment Date, the applicable
Secured Counterparty shall (A)(1) if the Secured Counterparty Obligations
Payment Date has not occurred for any other Secured Counterparty Obligations, deliver
to the other Secured Counterparty, at the Borrower’s sole cost and expense, the
Collateral in its possession or control together with any necessary
endorsements to the extent required by the such Secured Counterparty’s Secured
Counterparty Documents, (2) if the Secured


 


15

















 


Counterparty
Obligations Payment Date has occurred for all Secured Counterparties and a
Credit Agreement Obligations Payment Date has not occurred for any Credit
Agreement Secured Party, deliver to any Credit Agreement Representative, at the
Borrower’s sole cost and expense, the Collateral in its possession or control
together with any necessary endorsements to the extent required by the such
Credit Agreement Representative’s Credit Agreement Documents, and (3) if the
Secured Counterparty Obligations Payment Date has occurred for all Secured
Counterparty Obligations and the Credit Agreement Obligations Payment Date has
occurred for all Credit Agreement Obligations, deliver to Sowood, at the
Borrower’s sole cost and expense, the Collateral in its possession or control
together with any necessary endorsements to the extent required by the Sowood
Documents or (B) direct and deliver such Collateral as a court of competent
jurisdiction otherwise directs.


(iii)          After the
occurrence of the Sowood Obligations Payment Date, Sowood shall (A)(1) if a
Credit Agreement Obligations Payment Date has not occurred for any Credit
Agreement Secured Party, deliver to Credit Agreement Representative, at the
Borrower’s sole cost and expense, the Collateral in its possession or control
together with any necessary endorsements to the extent required by such Credit
Agreement Representative’s Credit Agreement Documents and (2) if a Credit
Agreement Obligations Payment Date has occurred for all Credit Agreement
Secured Parties, deliver to any Secured Counterparty, at the Borrower’s sole
cost and expense, the Collateral in its possession or control together with any
necessary endorsements to the extent required by such Secured Counterparty’s
Secured Counterparty Documents or (B) direct and deliver such Collateral as a
court of competent jurisdiction otherwise directs.


Section
4.  Enforcement Rights.


4.1           Exclusive
Enforcement.  Until the Credit
Agreement Obligations Payment Date for all Credit Agreement Obligations has
occurred, whether an Insolvency Proceeding has been commenced by or against any
Loan Party, the Credit Agreement Secured Parties shall have the exclusive right
to take and continue any Enforcement Action with respect to the Collateral,
without any consultation with or consent of any Secured Counterparty or Sowood,
but subject to Section 6.1(e).  Upon the
occurrence and during the continuance of a default or an event of default under
the Credit Agreement Documents, each Credit Agreement Representative and the
other Credit Agreement Secured Parties may take and continue any Enforcement
Action with respect to the Credit Agreement Obligations and the Collateral in
such order and manner as they may determine in their sole discretion.


4.2           Standstill and
Waivers.  (a)  Each Secured Counterparty agrees that, until
the Credit Agreement Obligations Payment Date for all Credit Agreement
Obligations has occurred, it will not take or cause to be taken any action, the
purpose or effect of which is to make any Lien in the Credit Agreement Primary
Collateral securing the Secured Counterparty Obligations pari passu with or
senior to the Liens of the Credit Agreement Secured Parties in the Credit
Agreement Primary Collateral, or to give any Secured Counterparty any
preference or priority relative to, the Credit Agreement Primary Collateral.


 


16

















 


(b)           Sowood agrees that,
until the Credit Agreement Obligations Payment Date for all Credit Agreement
Obligations has occurred and the Secured Counterparty Obligations Payment Date
for all Secured Counterparty Obligations has occurred, it will not take or
cause to be taken any action, the purpose or effect of which is to make any
Lien in the Collateral securing the Sowood Obligations pari passu with or
senior to the Liens of the Credit Agreement Secured Parties and the Secured
Counterparties in the Collateral, or to give Sowood any preference or priority
relative to, Collateral.


(c)           Each Secured Counterparty agrees
that, until the Credit Agreement Obligations Payment Date for all Credit
Agreement Obligations has occurred, subject to Section 6.1(e):


(i)            it will not oppose,
object to, interfere with, hinder, or delay, in any manner, whether by judicial
proceedings (including without limitation the filing of an Insolvency
Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer, or
other disposition of the Credit Agreement Primary Collateral by any Credit
Agreement Representative or any other Credit Agreement Secured Party or any
other Enforcement Action taken by or on behalf of any Credit Agreement
Representative or any other Credit Agreement Secured Party, provided that the
Secured Counterparties shall not be required to release their respective Liens
in the Credit Agreement Primary Collateral or the proceeds thereof or to
consent to the sale, transfer or other disposition of the Credit Agreement
Primary Collateral other than in connection with an Enforcement Action by any
Credit Agreement Representative;


(ii)           it has no right to
(A) direct either any Credit Agreement Representative or any other Credit
Agreement Secured Party to exercise any right, remedy, or power with respect to
the Credit Agreement Primary Collateral or pursuant to the Credit Agreement
Security Documents or (B) consent or object to the exercise by any Credit
Agreement Representative or any other Credit Agreement Secured Party of any
right, remedy, or power with respect to the Credit Agreement Primary Collateral
or pursuant to Credit Agreement Security Documents or to the timing or manner
in which any such right is exercised or not exercised (or, to the extent they
may have any such right described in this clause (ii), whether as a junior lien
creditor or otherwise, they hereby irrevocably waive such right);


(iii)          it will not
institute any suit or other proceeding or assert in any suit, Insolvency
Proceeding or other proceeding any claim against any Credit Agreement
Representative or any other Credit Agreement Secured Party seeking damages from
or other relief by way of specific performance, instructions or otherwise, with
respect to, and none of the Credit Agreement Representatives nor any other
Credit Agreement Secured Party shall be liable for, any action taken or omitted
to be taken by the Credit Agreement Representative or any other Credit
Agreement Secured Party with respect to the Credit Agreement Primary Collateral
or pursuant to the Credit Agreement Documents;


(iv)          subject to Section
4.7, it will not make any judicial or nonjudicial claim or demand or commence
any judicial or non-judicial proceedings against any Loan Party or any of its
subsidiaries or affiliates under or with respect to any Secured Counterparty


 


17

















 


Document or
seeking payment or damages from or other relief by way of specific performance,
instructions, or otherwise under or with respect to any Secured Counterparty
Document (other than filing a proof of claim) or exercise any right, remedy, or
power under or with respect to, or otherwise take any action to enforce, other
than filing a proof of claim, any Secured Counterparty Document;


(v)           it will not commence
judicial, or nonjudicial foreclosure proceedings with respect to, seek to have
a trustee, receiver, liquidator, or similar official appointed for or over,
attempt any action to take possession of any Credit Agreement Primary
Collateral, exercise any right, remedy, or power with respect to, or otherwise
take any action to enforce their interest in or realize upon, the Credit
Agreement Primary Collateral or pursuant to the Secured Counterparty Documents;
or


(vi)          it will not seek,
and hereby waives any right, to have the Credit Agreement Primary Collateral or
any part thereof marshaled upon any foreclosure or other disposition of the
Credit Agreement Primary Collateral.


(d)           Sowood agrees that, until the Credit Agreement
Obligations Payment Date for all Credit Agreement Obligations and the Secured
Counterparty Obligations Payment Date for all Secured Counterparty Obligations
has occurred, subject to Section 6.1(e):


(i)            it will not oppose,
object to, interfere with, hinder, or delay, in any manner, whether by judicial
proceedings (including without limitation the filing of an Insolvency
Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer, or
other disposition of the Collateral by any Credit Agreement Representative or
any other Credit Agreement Secured Party or any Secured Counterparty or any
other Enforcement Action taken by or on behalf of any Credit Agreement
Representative or any other Credit Agreement Secured Party or any Secured
Counterparty;


(ii)           it has no right to
(A) direct either any Credit Agreement Representative or any other Credit
Agreement Secured Party or any Secured Counterparty to exercise any right,
remedy or power with respect to the Collateral or pursuant to the Credit Agreement
Security Documents or the Secured Counterparty Security Documents, as
applicable, or (B) consent or object to the exercise by any Credit Agreement
Representative or any other Credit Agreement Secured Party or any Secured
Counterparty of any right, remedy or power with respect to the Collateral or
pursuant to the Credit Agreement Security Documents or the Secured Counterparty
Security Documents or to the timing or manner in which any such right is
exercised or not exercised (or, to the extent they may have any such right
described in this clause (ii), whether as a junior lien creditor or otherwise,
they hereby irrevocably waive such right);


(iii)          it will not
institute any suit or other proceeding or assert in any suit, Insolvency
Proceeding or other proceeding any claim against any Credit Agreement
Representative or any other Credit Agreement Secured Party or any Secured
Counterparty seeking damages from or other relief by way of specific
performance, instructions or otherwise, with respect to, and none of the Credit
Agreement Representatives nor any other Credit


 


18

















 


Agreement Secured
Party or any Secured Counterparty shall be liable for, any action taken or
omitted to be taken by the Credit Agreement Representative or any other Credit
Agreement Secured Party or any Secured Counterparty with respect to the
Collateral or pursuant to the Credit Agreement Documents or the Secured
Counterparty Documents, as applicable;


(iv)          it will not make any
judicial or nonjudicial claim or demand or commence any judicial or
non-judicial proceedings against any Loan Party or any of its subsidiaries or
affiliates under or with respect to any Sowood Document seeking payment or
damages from or other relief by way of specific performance, instructions or
otherwise under or with respect to any Sowood Document (other than filing a
proof of claim) or exercise any right, remedy or power under or with respect
to, or otherwise take any action to enforce, other than filing a proof of claim,
any Sowood Document;


(v)           it will not commence
judicial or nonjudicial foreclosure proceedings with respect to, seek to have a
trustee, receiver, liquidator, or similar official appointed for or over,
attempt any action to take possession of any Collateral, exercise any right,
remedy or power with respect to, or otherwise take any action to enforce their
interest in or realize upon, the Collateral or pursuant to the Sowood
Documents; or


(vi)          it will not seek,
and hereby waives any right, to have the Collateral or any part thereof
marshaled upon any foreclosure or other disposition of the Collateral.


4.3           Judgment
Creditors.  In the event that any
Credit Agreement Secured Party, any Secured Counterparty, or Sowood becomes a
judgment lien creditor in respect of Collateral as a result of its enforcement
of its rights as an unsecured creditor, such judgment lien shall be subject to
the terms of this Agreement for all purposes as the other Liens subject to this
Agreement.


4.4           Cooperation.  Each of the Secured Counterparties and Sowood
agrees that it shall take such actions as any Credit Agreement Representative
shall request in connection with the exercise by the Credit Agreement Secured
Parties of their rights set forth herein.


4.5           No Additional
Rights For the Borrowers Hereunder. 
Except as provided in Section 4.6, if any Credit Agreement Secured
Party, any Secured Counterparty, or Sowood shall enforce its rights or remedies
in violation of the terms of this Agreement, no Loan Party shall be entitled to
use such violation as a defense to any action by any Credit Agreement Secured
Party, any Secured Counterparty, or Sowood, nor to assert such violation as a
counterclaim or basis for set off or recoupment against any Credit Agreement
Secured Party, any Secured Counterparty, or Sowood.


4.6           Actions Upon
Breach.  (a)  If any Secured Counterparty or Sowood,
contrary to this Agreement, commences or participates in any action or
proceeding against the Borrowers or the Collateral, the Borrowers may interpose
as a defense or dilatory plea the making of this Agreement, and any Credit
Agreement Secured Party may intervene and interpose such defense or plea in its
or their name or in the name of a Borrower.


 


19

















 


(b)           Should any Secured Counterparty or
Sowood, contrary to this Agreement, in any way take, attempt to or threaten
to take any action with respect to the Collateral (including, without
limitation, any attempt to realize upon or enforce any remedy with respect to
this Agreement), or fail to take any action required by this Agreement, any
Credit Agreement Secured Party (in its or their own name or in the name of a
Borrower) or either Borrower may obtain relief against such Secured
Counterparty or Sowood by injunction, specific performance and/or other
appropriate equitable relief, it being understood and agreed by each Secured
Counterparty and Sowood that (i) the Credit Agreement Secured Parties’ damages
from its actions may at that time be difficult to ascertain and may be irreparable,
and (ii) each Secured Counterparty and Sowood waives any defense that the
Borrowers and/or the Credit Agreement Secured Parties cannot demonstrate damage
and/or be made whole by the awarding of damages.


4.7           Certain Rights of
Secured Counterparties Reserved. 
Notwithstanding anything contained in this Agreement to the contrary,
the provisions of this Agreement shall not prohibit, impair, limit or otherwise
affect in any manner whatsoever the rights of each Secured Counterparty, as a
supplier of natural gas or electricity and as the provider of commodity price
hedging arrangements to the Borrowers, to terminate its Secured Counterparty
Agreement, to draw on its Secured Counterparty Letter of Credit, to terminate
its hedging arrangements, to offset or net amounts owed by or to the Secured
Counterparty against amounts owed by or to the Borrowers or to exercise any and
all other rights and remedies of the Secured Counterparty under its Secured
Counterparty Documents upon a default by the Borrowers; provided, however, that
any rights of such Secured Counterparty with respect to its Liens in the
Collateral securing the Secured Counterparty Obligations shall be governed by
this Agreement.


Section
5.  Application Of Proceeds Of
Collateral; Dispositions And Releases Of Collateral; Inspection and Insurance.


5.1           Application of
Proceeds; Turnover Provisions.  All
proceeds of Collateral (including without limitation any interest earned
thereon) resulting from the sale, collection, or other disposition of
Collateral in connection with or resulting from any Enforcement Action, and
whether pursuant to an Insolvency Proceeding, shall be distributed as follows:


(a)           first (i) in the case of
Credit Agreement Primary Collateral, ratably to each Credit Agreement
Representative based on outstanding unpaid Credit Agreement Obligations of each
Credit Agreement for application in accordance with such Credit Agreement and
(ii) in the case of Secured Counterparty Primary Collateral, ratably to each
Secured Counterparty based on the outstanding unpaid Secured Counterparty
Obligations of each Secured Counterparty for application in accordance with
such Secured Counterparty’s Secured Counterparty Documents;


(b)           second (i) in the case of
Secured Counterparty Primary Collateral and after the Secured Counterparty
Obligations have been satisfied and paid in full under clause (a)(ii) above,
ratably to each Credit Agreement Representative based on outstanding unpaid
Credit Agreement Obligations of each Credit Agreement for application in accordance
with such Credit Agreement and (ii) in the case of Credit Agreement Primary
Collateral and after the Credit Agreement Obligations have been satisfied and
paid in full under clause (a)(i) above, ratably to


 


20

















 


each Secured Counterparty
based on the outstanding unpaid Secured Counterparty Obligations of each
Secured Counterparty for application in accordance with such Secured
Counterparty’s Secured Counterparty Documents; and


(c)           third, to Sowood for application
in accordance with the Sowood Documents.


Any Collateral, including
without limitation any such Collateral constituting proceeds, that may be
received by any Secured Party in violation of this Agreement shall be
segregated and held in trust and promptly paid over to the Secured Party who
was entitled to receive such Collateral, in the same form as received, with any
necessary endorsements, and each Secured Party hereby authorizes each other
Secured Party to make any such endorsements as agent for the Secured Party
entitled to the endorsement (which authorization, being coupled with an
interest, is irrevocable).


5.2           Releases of
Junior Liens.  (a)  Upon any release, sale, or disposition of
Credit Agreement Primary Collateral pursuant to an Enforcement Action under any
Credit Agreement Documents that results in the release of any Credit Agreement
Representative’s Lien on any Credit Agreement Primary Collateral (including
without limitation any sale or other disposition pursuant to any Enforcement
Action), the Secured Counterparties’ and Sowood’s Lien on such Collateral (but
not on any proceeds of such Collateral not required to be paid to the Credit
Agreement Secured Parties) shall be automatically and unconditionally released
with no further consent or action of any Person.


(b)           Upon any release, sale, or
disposition of Secured Counterparty Primary Collateral pursuant to an
Enforcement Action under any Secured Counterparty’s Secured Counterparty
Documents that results in the release of such Secured Counterparty’s Lien on
such Secured Counterparty Primary Collateral (including without limitation any
sale or other disposition pursuant to any Enforcement Action), the Credit
Agreement Secured Parties’, each other Secured Counterparty’s, and Sowood’s
Lien on such Collateral (but not on any proceeds of such Collateral not
required to be paid to the Secured Counterparties) shall be automatically and
unconditionally released with no further consent or action of any Person.


(c)           Each Credit Agreement Representative,
each Secured Counterparty, and Sowood shall promptly execute and deliver such
release documents and instruments and shall take such further actions as the
applicable Credit Agreement Representative or the applicable Secured
Counterparty shall request to evidence any release of the Lien described in
preceding paragraphs (a) and (b), as applicable.


5.3           Inspection Rights
and Insurance.  (a)  Any Credit Agreement Secured Party and its
representatives and invitees may at any time inspect, repossess, remove, and otherwise
deal with the Collateral, and any Credit Agreement Representative may advertise
and conduct public auctions or private sales of the Collateral, in each case
without notice to, the involvement of or interference by any Secured
Counterparty or Sowood or liability to any Secured Counterparty or Sowood.


 


21

















 


(b)           Until each Credit Agreement
Obligations Payment Date has occurred, the Credit Agreement Representatives
will have the sole and exclusive right (i) to be named as additional insured
and loss payee under any insurance policies maintained from time to time by any
Loan Party; (ii) to adjust or settle any insurance policy or claim covering the
Collateral in the event of any loss thereunder; and (iii) to approve any award
granted in any condemnation or similar proceeding affecting the Collateral.


Section
6.  Insolvency Proceedings.


6.1           Filing of Motions.  (a) 
Until each Credit Agreement Obligations Payment Date has occurred, each
Secured Counterparty agrees that it shall not, in or in connection with any
Insolvency Proceeding, file any pleadings or motions, take any position at any
hearing or proceeding of any nature, or otherwise take any action whatsoever,
in each case (i) in respect of any of the Credit Agreement Secured Parties’
interests in the Credit Agreement Primary Collateral, including, without
limitation, with respect to the determination of any Liens or claims held by
any Credit Agreement Representative (including the validity and enforceability
thereof) or any other Credit Agreement Secured Party or (ii) contesting the
value of any claims of such parties under Section 506(a) of the Bankruptcy Code
or otherwise.


(b)           Until each Secured Counterparty
Obligations Payment Date has occurred, each Credit Agreement Representatives on
behalf of the Credit Agreement Secured Parties agrees that it shall not, in or
in connection with any Insolvency Proceeding, file any pleadings or motions,
take any position at any hearing or proceeding of any nature, or otherwise take
any action whatsoever, in each case (i) in respect of any of Secured
Counterparties’ interests in the Secured Counterparty Primary Collateral,
including, without limitation, with respect to the determination of any Liens
or claims held by any Secured Counterparty (including the validity and
enforceability thereof) or (ii) contesting the value of any claims of such
parties under Section 506(a) of the Bankruptcy Code or otherwise.


(c)           Until each Secured Counterparty
Obligations Payment Date has occurred for all other Secured Counterparties,
each Secured Counterparty agrees that it shall not, in or in connection with
any Insolvency Proceeding, file any pleadings or motions, take any position at
any hearing or proceeding of any nature, or otherwise take any action
whatsoever, in each case (i) in respect of any of such other Secured
Counterparties’ interests in such other Secured Counterparty’s Secured
Counterparty Primary Collateral, including, without limitation, with respect to
the determination of any Liens or claims held by such Secured Counterparty
(including the validity and enforceability thereof) or (ii) contesting the
value of any claims of such parties under Section 506(a) of the Bankruptcy Code
or otherwise.


(d)           Until each Credit
Agreement Obligations Payment Date and each Secured Counterparty Obligations
Payment Date has occurred, Sowood agrees that it shall not, in or in connection
with any Insolvency Proceeding, file any pleadings or motions, take any
position at any hearing or proceeding of any nature, or otherwise take any
action whatsoever, in each case (i) in respect of any of the Credit Agreement
Secured Parties or the Secured Counterparties’ interests in the Collateral,
including, without limitation, with respect to the determination of any


 


22

















 


Liens or claims
held by any Credit Agreement Secured Party or any Secured Counterparty
(including the validity and enforceability thereof) or (ii) contesting the
value of any claims of such parties under Section 506(a) of the Bankruptcy Code
or otherwise.


(e)           Notwithstanding
anything to the contrary in this Agreement, each Secured Counterparty, the
Credit Agreement Representatives, each Credit Agreement Secured Party, and
Sowood may file a proof of claim in a Insolvency Proceeding, subject to the
limitations contained in this Agreement.


6.2           Financing Matters.  (a)  If
any Loan Party becomes subject to any Insolvency Proceeding, and if any Credit
Agreement Representative or one or more of the other Credit Agreement Secured
Parties desires to consent to the use of cash collateral under the Bankruptcy
Code (other than cash collateral from the Secured Counterparty Primary
Collateral) or to provide financing to any Loan Party under the Bankruptcy Code
(“DIP Financing”), then each of the
Secured Counterparties agrees that (a) it will be deemed to have consented to,
will raise no objection to, nor support any other Person objecting to, the use
of such cash collateral or to such DIP Financing, (b) it will not request or
accept adequate protection or any other relief in connection with the use of
such cash collateral or such DIP Financing except as set forth in paragraph 6.4
below, and (c) it will subordinate (and will be deemed hereunder to have
subordinated) its Liens in the Credit Agreement Primary Collateral (i) to the
Liens securing such DIP Financing on the same terms as its are subordinated
thereto (and such subordination will not alter in any manner the terms of this
Agreement) and (ii) to any adequate protection provided to the Credit Agreement
Secured Parties in the Credit Agreement Primary Collateral and the cash
collateral therefrom.


(b)           If any Loan Party
becomes subject to any Insolvency Proceeding, and if any Secured Counterparty
desires to consent to the use of cash collateral from such Secured Counterparty’s
Secured Counterparty Primary Collateral under the Bankruptcy Code, then each
Credit Agreement Representative agrees on behalf of its respective Credit
Agreement Secured Parties and each other Secured Counterparty agrees that (a)
it will be deemed to have consented to, will raise no objection to, nor support
any other Person objecting to, the use of such cash collateral, (b) it will not
request or accept adequate protection or any other relief in connection with
the use of such cash collateral except as set forth in paragraph 6.4 below, and
(c) it will subordinate (and will be deemed hereunder to have subordinated) its
Liens in the Primary Secured Counterparty’s Secured Counterparty Primary
Collateral to any adequate protection provided to the Primary Secured
Counterparty in such Secured Counterparty Primary Collateral and the cash
collateral therefrom.


(c)           If any Loan Party
becomes subject to any Insolvency Proceeding, and if any Credit Agreement Representative
or one or more of the other Credit Agreement Secured Parties or any Secured
Counterparty desires to consent to the use of cash collateral under the
Bankruptcy Code or to provide financing to any Loan Party under the Bankruptcy
Code (“DIP Financing”), then Sowood agrees
that (a) it will be deemed to have consented to, will raise no objection to,
nor support any other Person objecting to, the use of such cash collateral or
to such DIP Financing, (b) it will not request or accept adequate protection or
any other relief in


 


23

















 


connection with
the use of such cash collateral or such DIP Financing except as set forth in
paragraph 6.4 below, and (c) it will subordinate (and will be deemed hereunder
to have subordinated) its Liens in the Collateral (i) to the Liens securing such
DIP Financing on the same terms as its are subordinated thereto (and such
subordination will not alter in any manner the terms of this Agreement) and
(ii) to any adequate protection provided to the Credit Agreement Secured
Parties or the Secured Counterparties in the Collateral and the cash collateral
therefrom.


6.3           Relief From the
Automatic Stay.  (a)  Each of the Secured Counterparties agrees
that, solely as to matters related to the Credit Agreement Primary Collateral,
it will not seek relief from the automatic stay or from any other stay in any
Insolvency Proceeding or take any action in derogation thereof, in each case in
respect of any Credit Agreement Primary Collateral, without the prior written
consent of each Credit Agreement Representative.


(b)           Each of the Credit
Agreement Representatives agrees on its behalf and on behalf of its respective
Credit Agreement Secured Parties that, solely as to matters related to the
Secured Counterparty Primary Collateral, it will not seek relief from the
automatic stay or from any other stay in any Insolvency Proceeding or take any
action in derogation thereof, in each case in respect of any Collateral,
without the prior written consent of each Secured Counterparty.


(c)            Each Secured
Counterparty agrees that, solely as to matters related to the each other
Secured Counterparty’s Secured Counterparty Primary Collateral, it will not
seek relief from the automatic stay or from any other stay in any Insolvency
Proceeding or take any action in derogation thereof, in each case in respect of
any Collateral, without the prior written consent of such other Secured
Counterparty.


(d)           Sowood agrees that it will not seek
relief from the automatic stay or from any other stay in any Insolvency
Proceeding or take any action in derogation thereof, in each case in respect of
any Collateral, without the prior written consent of each Secured Counterparty
and each Credit Agreement Representative.


6.4           Adequate Protection.  (a) 
Each Secured Counterparty agrees that it shall not object, contest, or
support any other Person objecting to or contesting (i) any request by any
Credit Agreement Representative or any Credit Agreement Secured Parties for
adequate protection from the Credit Agreement Primary Collateral and cash
collateral therefrom, (ii) any objection by any Credit Agreement Representative
or any other Credit Agreement Secured Parties to any motion, relief, action, or
proceeding based on a claim of a lack of adequate protection from the Credit
Agreement Primary Collateral and cash collateral therefrom, or (iii) the
payment of interest, fees, expenses or other amounts to any Credit Agreement
Representative or any other Credit Agreement Secured Party under Section 506(b)
or 506(c) of the Bankruptcy Code or otherwise. 
Notwithstanding anything contained in this Section and in Section 6.2,
in any Insolvency Proceeding (A) if any Credit Agreement Secured Parties (or
any subset thereof) are granted adequate protection in the form of additional
Credit Agreement Primary Collateral or superpriority claims in any Credit
Agreement Primary Collateral in connection with any DIP Financing or use of
cash collateral, then each Secured Counterparty may seek or accept adequate protection
in such collateral solely in the form of (1) a replacement Lien on such
additional


 


24

















 


collateral,
subordinated to the Liens securing the Credit Agreement Obligations and such
DIP Financing on the same basis as the other Liens securing the Secured
Counterparty Obligations are so subordinated to the Liens securing the Credit
Agreement Obligations under this Agreement and (2) superpriority claims junior
in all respects to the superpriority claims granted to the Credit Agreement
Secured Parties, and (B) if any Secured Counterparty seeks or requests adequate
protection and such adequate protection is granted in the form of additional
collateral that is Credit Agreement Primary Collateral, then such Secured Counterparty
agrees that each Credit Agreement Representative shall also be granted a senior
Lien on such additional collateral as security for such Credit Agreement
Representative’s Credit Agreement Obligations and any such DIP Financing and
that any Lien on such additional collateral securing the Secured Counterparty
Obligations shall be subordinated to the Liens on such collateral securing the
Credit Agreement Obligations and any such DIP Financing (and all Obligations
relating thereto) and any other Liens granted in the Credit Agreement Primary
Collateral and cash collateral therefrom to the Credit Agreement Secured
Parties as adequate protection on the same basis as the other Liens securing
the Secured Counterparty Obligations are subordinated to such Credit Agreement
Obligations under this Agreement.


(b)           Each Credit
Agreement Representative agrees on its behalf and on the behalf of its
respective Credit Agreement Secured Parties that it shall not object, contest,
or support any other Person objecting to or contesting (i) any request by any
Secured Counterparty for adequate protection from the Secured Counterparty
Primary Collateral and cash collateral therefrom, (ii) any objection by any
Secured Counterparty to any motion, relief, action, or proceeding based on a
claim of a lack of adequate protection from the Secured Counterparty Primary
Collateral and cash collateral therefrom, or (iii) the payment of interest,
fees, expenses or other amounts to any Secured Counterparty under Section
506(b) or 506(c) of the Bankruptcy Code or otherwise.  Notwithstanding anything contained in this
Section and in Section 6.2, in any Insolvency Proceeding (A) if any Secured
Counterparties (or any subset thereof) are granted adequate protection in the
form of additional Secured Counterparty Primary Collateral or superpriority
claims in any Secured Counterparty Primary Collateral in connection with any
use of cash collateral, then each Credit Agreement Secured Party may seek or
accept adequate protection in such collateral solely in the form of a
replacement Lien on such additional collateral, subordinated to the Liens
securing the Secured Counterparty Obligations on the same basis as the other
Liens securing the Credit Agreement Obligations are so subordinated to the
Liens securing the Secured Counterparty Obligations under this Agreement and
(B) if any Credit Agreement Secured Party seeks or requests adequate protection
and such adequate protection is granted in the form of additional collateral
that is Secured Counterparty Primary Collateral, then such Credit Agreement
Representative on behalf of the applicable Credit Agreement Secured Parties
agrees that each Secured Counterparty shall also be granted a senior Lien on
such additional collateral as security for such Secured Counterparty’s Secured
Counterparty Obligations and that any Lien on such additional collateral
securing the Credit Agreement Obligations shall be subordinated to the Liens on
such collateral securing the Secured Counterparty Obligations (and all
Obligations relating thereto) and any other Liens granted in the Secured
Counterparty Primary Collateral and cash collateral therefrom to the Secured
Counterparties as adequate protection on the same basis as the other Liens
securing the Credit


 


25

















 


Agreement
Obligations are subordinated to such Secured Counterparty Obligations under
this Agreement.


(c)           Each Secured
Counterparty agrees that it shall not object, contest, or support any other
Person objecting to or contesting (i) any request by any other Secured
Counterparty for adequate protection from such other Secured Counterparty’s
Secured Counterparty Primary Collateral and cash collateral therefrom, (ii) any
objection by any such other Secured Counterparty to any motion, relief, action,
or proceeding based on a claim of a lack of adequate protection from such
Secured Counterparty Primary Collateral and cash collateral therefrom, or (iii)
the payment of interest, fees, expenses or other amounts to such other Secured
Counterparty under Section 506(b) or 506(c) of the Bankruptcy Code or
otherwise.  Notwithstanding anything
contained in this Section and in Section 6.2, in any Insolvency Proceeding (A)
if any Primary Secured Counterparty is granted adequate protection in the form
of additional Secured Counterparty Primary Collateral or superpriority claims
in any Secured Counterparty Primary Collateral in connection with any use of
cash collateral, then each Secondary Secured Counterparty may seek or accept
adequate protection in such collateral solely in the form of a replacement Lien
on such additional collateral, subordinated to the Liens securing the Secured
Counterparty Obligations of the Primary Secured Counterparty on the same basis
as the other Liens securing the Secured Counterparty Obligations of the
Secondary Secured Counterparty are so subordinated to the Liens securing the
Secured Counterparty Obligations of the Primary Secured Counterparty under this
Agreement and (B) if any Secondary Secured Counterparty seeks or requests
adequate protection and such adequate protection is granted in the form of
additional collateral that is Secured Counterparty Primary Collateral of
another Secured Counterparty, then the Secondary Secured Counterparty agrees
that the Primary Secured Counterparty shall also be granted a senior Lien on
such additional collateral as security for such Primary Secured Counterparty’s
Secured Counterparty Obligations and that any Lien on such additional
collateral securing the Secured Counterparty Obligations of the Secondary
Secured Counterparty shall be subordinated to the Liens on such collateral
securing the Secured Counterparty Obligations of the Primary Secured
Counterparty and any other Liens granted in the Secured Counterparty Primary
Collateral of the Primary Secured Counterparty and cash collateral therefrom to
the Primary Secured Counterparty as adequate protection on the same basis as
the other Liens securing the Secondary Secured Counterparty’s Secured
Counterparty Obligations are subordinated to such Primary Secured Counterparty’s
Secured Counterparty Obligations under this Agreement.


(d)           Sowood agrees that it shall not
object, contest, or support any other Person objecting to or contesting (i) any
request by any Credit Agreement Representative or any Credit Agreement Secured
Parties or any Secured Counterparty for adequate protection from the Collateral
and cash collateral therefrom, (ii) any objection by any Credit Agreement
Representative or any other Credit Agreement Secured Parties or any Secured
Counterparty to any motion, relief, action, or proceeding based on a claim of a
lack of adequate protection from the Collateral and cash collateral therefrom,
or (iii) the payment of interest, fees, expenses or other amounts to any Credit
Agreement Representative or any other Credit Agreement Secured Party or any
Secured Counterparty under Section 506(b) or 506(c) of the Bankruptcy Code or
otherwise.  Notwithstanding anything
contained in this Section and in Section 6.2, in any


 


26

















 


Insolvency Proceeding (A)
if any Credit Agreement Secured Parties (or any subset thereof) or any Secured
Counterparties (or any subset thereof) are granted adequate protection in the
form of additional Collateral or superpriority claims in any Collateral in
connection with any DIP Financing or use of cash collateral, then Sowood may
seek or accept adequate protection in such collateral solely in the form of (1)
a replacement Lien on such additional collateral, subordinated to the Liens
securing the Credit Agreement Obligations and the Secured Counterparty
Obligations and such DIP Financing on the same basis as the other Liens
securing the Sowood Obligations are so subordinated to the Liens securing the
Credit Agreement Obligations and the Secured Counterparty Obligations under
this Agreement and (2) superpriority claims junior in all respects to the
superpriority claims granted to the Credit Agreement Secured Parties or the
Secured Counterparties, and (B) Sowood seeks or requests adequate protection
and such adequate protection is granted in the form of additional collateral,
then Sowood agrees that each Credit Agreement Representative and each Secured
Counterparty shall also be granted a senior Lien on such additional collateral
as security for such Credit Agreement Representative’s Credit Agreement
Obligations or such Secured Counterparty’s Secured Counterparty Obligations and
any such DIP Financing and that any Lien on such additional collateral securing
the Sowood Obligations shall be subordinated to the Liens on such collateral
securing the Credit Agreement Obligations and the Secured Counterparty
Obligations and any such DIP Financing (and all Obligations relating thereto)
and any other Liens granted in the Collateral and cash collateral therefrom to
the Credit Agreement Secured Parties and the Secured Counterparties as adequate
protection on the same basis as the other Liens securing the Sowood Obligations
are subordinated to such Credit Agreement Obligations and the Secured
Counterparty Obligations under this Agreement.


6.5           Avoidance Issues.  (a)  If
any Credit Agreement Secured Party, any Secured Counterparty, or Sowood is
required in any Insolvency Proceeding or otherwise to disgorge, turn over or
otherwise pay to the estate of any Loan Party, because such amount was avoided
or ordered to be paid or disgorged for any reason, including without limitation
because it was found to be a fraudulent or preferential transfer, any amount (a
“Recovery”), whether received as
proceeds of security, enforcement of any right of set-off or otherwise, then
the Credit Agreement Obligations of such Credit Agreement Secured Party, the
Secured Counterparty Obligations of such Secured Counterparty, or the Sowood
Obligations, as the case may be, shall be reinstated to the extent of such
Recovery and deemed to be outstanding as if such payment had not occurred and
the relevant Credit Agreement Obligations Payment Date, relevant Secured
Counterparty Obligations Payment Date, or Sowood Payment Date, as the case may
be, shall be deemed not to have occurred. 
If this Agreement shall have been terminated prior to such Recovery,
this Agreement shall be reinstated in full force and effect, and such prior
termination shall not diminish, release, discharge, impair, or otherwise affect
the obligations of the parties hereto.


(b)           Each Secured
Counterparty agrees that it shall not be entitled to benefit from any avoidance
action affecting or otherwise relating to any distribution or allocation made
in accordance with this Agreement in respect of the Credit Agreement Primary
Collateral, whether by preference of otherwise, it being understood and agreed
that the benefit of such avoidance action otherwise allocable to them shall
instead by allocated and turned over for application in accordance with the
priorities set forth in this Agreement.


 


27

















 


(c)           Each Credit
Agreement Representative agrees on its behalf and on behalf of its respective
Credit Agreement Secured Parties that it shall not be entitled to benefit from
any avoidance action affecting or otherwise relating to any distribution or
allocation made in accordance with this Agreement in respect of the Secured
Counterparty Primary Collateral, whether by preference or otherwise, it being
understood and agreed that the benefit of such avoidance action otherwise allocable
to them shall instead be allocated and turned over for application in
accordance with the priorities set forth in this Agreement.


(d)           Each Secured Counterparty
agrees that it shall not be entitled to benefit from any avoidance action
affecting or otherwise relating to any distribution or allocation made in
accordance with this Agreement in respect of another Secured Counterparty’s
Secured Counterparty Primary Collateral, whether by preference or otherwise, it
being understood and agreed that the benefit of such avoidance action otherwise
allocable to them shall instead be allocated and turned over for application in
accordance with the priorities set forth in this Agreement.


(e)           Sowood agrees that it shall not be
entitled to benefit from any avoidance action affecting or otherwise relating
to any distribution or allocation made in accordance with this Agreement in
respect of the Collateral, whether by preference or otherwise, it being
understood and agreed that the benefit of such avoidance action otherwise allocable
to them shall instead be allocated and turned over for application in
accordance with the priorities set forth in this Agreement.


6.6           Asset Dispositions
in an Insolvency Proceeding.  (a) No
Secured Counterparty shall, in an Insolvency Proceeding or otherwise, oppose
any sale or disposition of any Credit Agreement Primary Collateral that is
supported by any Credit Agreement Secured Parties, and each Secured
Counterparty will be deemed to have consented under Section 363 of the
Bankruptcy Code (and otherwise) to any sale supported by the Credit Agreement
Secured Parties in the Credit Agreement Primary Collateral and to have released
their Liens in such assets.


(b)           No Credit Agreement Secured Party
shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition
of any Secured Counterparty Primary Collateral that is supported by any Secured
Counterparties, and each Credit Agreement Secured Party will be deemed to have
consented under Section 363 of the Bankruptcy Code (and otherwise) to any sale
supported by the Secured Counterparties in the Secured Counterparty Primary
Collateral and to have released their Liens in such assets.


(c)           No Secondary Secured Counterparty
shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition
of any other Secured Counterparty’s Secured Counterparty Primary Collateral
that is supported by such other Secured Counterparty, and each Secondary
Secured Counterparty will be deemed to have consented under Section 363 of the
Bankruptcy Code (and otherwise) to any sale supported by a Primary Secured
Counterparty in its Secured Counterparty Primary Collateral and to have
released their Liens in such assets.


 


28

















 


(d)           Sowood shall not, in an Insolvency
Proceeding or otherwise, oppose any sale or disposition of any Collateral that
is supported by any Credit Agreement Secured Parties or any Secured Counterparties,
and Sowood will be deemed to have consented under Section 363 of the Bankruptcy
Code (and otherwise) to any sale supported by the Credit Agreement Secured
Parties or the Secured Counterparties in the Collateral and to have released
their Liens in such assets.


6.7           Separate Grants
of Security and Separate Classification. 
(a) Each of the Credit Agreement Representatives, the Secured
Counterparties, and Sowood acknowledges and agrees that (i) the grants of Liens
pursuant to the Credit Agreement Security Documents, the Secured Counterparty
Security Documents, and the Sowood Security Documents constitute separate and
distinct grants of Liens and (ii) because of, among other things, their
differing rights in the Collateral, the Secured Counterparty Obligations, the
Sowood Obligations, and the Credit Agreement Obligations are fundamentally
different from each other and must be separately classified in any plan of
reorganization proposed or adopted in an Insolvency Proceeding.


(b)           To further effectuate the intent of
the parties as provided in the immediately preceding paragraph, if it is held
that the claims of the Credit Agreement Secured Parties, Secured
Counterparties, or Sowood in respect of the Collateral constitute only one
secured claim (rather than separate classes of senior and junior secured
claims), then:


(i)             each of each
Secured Counterparty and Sowood hereby acknowledges and agrees that all
distributions shall be made as if there were separate classes of senior and
junior secured claims against the Loan Parties in respect of the Credit
Agreement Primary Collateral (with the effect being that, to the extent that
the aggregate value of the Credit Agreement Primary Collateral is sufficient
(for this purpose ignoring all claims held by the Secured Counterparties and
Sowood), the Credit Agreement Secured Parties shall be entitled to receive, in
addition to amounts distributed to them in respect of principal, pre-petition
interest, and other claims, all amounts owing in respect of Post-Petition
Interest before any distribution is made in respect of the claims held by each
of the Secured Counterparties and Sowood, with each Secured Counterparty and
Sowood hereby acknowledging and agreeing to turn over to the Credit Agreement
Secured Parties amounts otherwise received, or receivable by them to the extent
necessary to effectuate the intent of this sentence, even if such turnover has
the effect of reducing the claim or recovery of the Secured Counterparties or
Sowood and


(ii)           each of the Credit
Agreement Representatives, the Secured Counterparties, and Sowood hereby
acknowledges and agrees that all distributions shall be made as if there were
separate classes of senior and junior secured claims against the Loan Parties
in respect of a Secured Counterparty’s Secured Counterparty Primary Collateral
(with the effect being that, to the extent that the aggregate value of such
Secured Counterparty Primary Collateral is sufficient (for this purpose
ignoring all claims held by the Credit Agreement Secured Parties,


 


29

















 


the other Secured
Counterparties and Sowood), such Secured Counterparty shall be entitled to
receive, in addition to amounts distributed to them in respect of principal,
pre-petition interest, and other claims, all amounts owing in respect of
Post-Petition Interest before any distribution is made in respect of the claims
held by the Credit Agreement Secured Parties, the other Secured Counterparties,
and Sowood, with each of the Credit Agreement Representative, each other
Secured Counterparty and Sowood hereby acknowledging and agreeing to turn over
to such Secured Counterparty amounts otherwise received or receivable by them
to the extent necessary to effectuate the intent of this sentence, even if such
turnover has the effect of reducing the claim or recovery of the Credit
Agreement Secured Parties, the other Secured Counterparties, or Sowood.


6.8           No Waivers of
Rights of Credit Agreement Secured Parties. 
(a)  Nothing contained herein
shall prohibit or in any way limit the Credit Agreement Representative or any
other Credit Agreement Secured Party from objecting in any Insolvency
Proceeding or otherwise to any action taken by any Secured Counterparty with
respect to the Credit Agreement Primary Collateral, including the seeking by
any Secured Counterparty of adequate protection from the Credit Agreement
Primary Collateral or the asserting by any Secured Counterparty of any of its
rights and remedies under the Secured Counterparty Documents with respect to
the Credit Agreement Primary Collateral.


(b)           Nothing contained herein shall
prohibit or in any way limit any Secured Counterparty from objecting in any
Insolvency Proceeding or otherwise to any action taken by any Credit Agreement
Secured Party with respect to the Secured Counterparty Primary Collateral,
including the seeking by any Credit Agreement Secured Party of adequate
protection from the Secured Counterparty Primary Collateral or the asserting by
any Credit Agreement Secured Party of any of its rights and remedies under the
Credit Agreement Documents with respect to the Secured Counterparty Primary
Collateral.


(c)           Nothing contained herein shall
prohibit or in any way limit any Primary Secured Counterparty from objecting in
any Insolvency Proceeding or otherwise to any action taken by any Secondary
Secured Counterparty with respect to the Primary Secured Counterparty’s Secured
Counterparty Primary Collateral, including the seeking by Secondary Secured
Counterparty of adequate protection from the Primary Secured Counterparty’s
Secured Counterparty Primary Collateral or the asserting by any Secondary
Secured Counterparty of any of its rights and remedies under the Secured
Counterparty Documents with respect to the Primary Secured Counterparty’s
Secured Counterparty Primary Collateral.


(d)           Nothing contained herein shall
prohibit or in any way limit the Credit Agreement Representative or any other
Credit Agreement Secured Party or any Secured Counterparty from objecting in
any Insolvency Proceeding or otherwise to any action taken by Sowood, including
the seeking by Sowood of adequate protection or the asserting by Sowood of any
of its rights and remedies under the Sowood Documents or otherwise.


6.9           Plans of
Reorganization.  Neither any Secured
Counterparty nor Sowood shall support or vote in favor of any plan of
reorganization (and each shall be deemed to have voted to reject any plan of
reorganization) unless such plan (a) pays off, in cash in full, all Credit
Agreement Obligations, (b) is accepted by the class of holders of Credit
Agreement Obligations voting thereon and is supported by the Credit Agreement
Representative, or (c) incorporates this Agreement by reference and continues
the rights and priorities of the Credit Agreement Secured


 


30

















 


Parties, the
Secured Counterparties, and Sowood in the Collateral after to the effective
date of such plan.


6.10         Effectiveness in
Insolvency Proceedings.  This
Agreement shall be effective both before and after the commencement of an
Insolvency Proceeding.


Section
7.  Secured Counterparty
Documents, Credit Agreement Documents, and Sowood Documents.  Each
of the Loan Parties, each Credit Agreement Representative, on behalf of itself
and the Credit Agreement Secured Parties, the Secured Counterparties, and
Sowood agrees that it shall not at any time execute or deliver any amendment or
other modification to any of the Credit Agreement Documents, Secured
Counterparty Documents, or the Sowood Documents inconsistent with or in
violation of this Agreement.


Section
8.  Reliance; Waivers; etc.


8.1           Reliance.  The Credit Agreement Documents, the Secured
Counterparty Documents, and the Sowood Documents are deemed to have been
executed and delivered, and all extensions of credit thereunder are deemed to
have been made or incurred, in reliance upon this Agreement.  The Credit Agreement Representatives, the
Secured Counterparties, and Sowood expressly waive all notice of the acceptance
of and reliance on this Agreement by the other parties.


8.2           No Warranties or
Liability.  Each of the Credit
Agreement Representatives, the Secured Counterparties, and Sowood acknowledges
and agrees that it has not made any representation or warranty with respect to
the execution, validity, legality, completeness, collectability, or
enforceability of the Credit Agreement Documents, the Secured Counterparty
Documents, or the Sowood Documents. 
Except as otherwise provided in this Agreement, each Credit Agreement
Representative, each Secured Counterparty, and Sowood will be entitled to
manage and supervise their respective extensions of credit to any Loan Party in
accordance with law and their usual practices, modified from time to time as
they deem appropriate.


8.3           No Waivers.  No right or benefit of any party hereunder
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of such party or any other party hereto or by any noncompliance
by any Loan Party with the terms and conditions of any of the Credit Agreement
Documents, the Secured Counterparty Documents, or the Sowood Documents.


Section
9.  Obligations Unconditional.


9.1           Credit Agreement
Obligations Unconditional.  All
rights of any Credit Agreement Representative hereunder, and all agreements and
obligations of the Secured Counterparties, Sowood, the Borrowers, and the other
Loan Parties (to the extent applicable) hereunder, shall remain in full force
and effect irrespective of:


(a)           any lack of validity or
enforceability of any Credit Agreement Document;


 


31

















 


(b)           any change in the time, place, or
manner of payment of, or in any other term of, all or any portion of any Credit
Agreement Obligations, or any amendment, waiver, or other modification, whether
by course of conduct or otherwise, or any refinancing, replacement, refunding,
or restatement of any Credit Agreement Document;


(c)           prior to the Credit Agreement
Obligations Payment Date for any Credit Agreement Obligations, any exchange,
release, voiding, avoidance, or non-perfection of any security interest in any
Collateral or any other collateral, or any release, amendment, waiver, or other
modification, whether by course of conduct or otherwise, or any refinancing,
replacement, refunding, or restatement of all or any portion of such Credit
Agreement Obligations or any guarantee or guaranty thereof; or


(d)           any other circumstances that
otherwise might constitute a defense available to, or a discharge of, any Loan
Party in respect of any Credit Agreement Obligations (other than the occurrence
of the Credit Agreement Obligations Payment Date for all Credit Agreement
Obligations) or of any Secured Counterparty, Sowood, or any Loan Party, to the
extent applicable, in respect of this Agreement.


9.2           Secured
Counterparty Obligations Unconditional. 
Subject to compliance with the terms of this Agreement, all rights and
interests of the Secured Counterparties under this Agreement, and all
agreements and obligations of the Credit Agreement Representative, Sowood, the
Loan Parties, to the extent applicable, hereunder, shall remain in full force
and effect irrespective of:


(a)           any lack of validity or
enforceability of any Secured Counterparty Document;


(b)           any change in the time, place, or
manner of payment of, or in any other term of, all or any portion of the
Secured Counterparty Obligations, or any amendment, waiver, or other
modification, whether by course of conduct or otherwise, or any refinancing,
replacement, refunding, or restatement of any Secured Counterparty Document;


(c)           any exchange, release, voiding,
avoidance, or non-perfection of any security interest in any Collateral, or any
release, amendment, waiver, or other modification, whether by course of conduct
or otherwise, or any refinancing, replacement, refunding, or restatement of all
or any portion of the Secured Counterparty Obligations or any guarantee or
guaranty thereof; or


(d)           any other circumstances that
otherwise might constitute a defense available to, or a discharge of, any Loan
Party in respect of the Secured Counterparty Obligations (other than the
payment in full of the Secured Counterparty Obligations) or of any Credit
Agreement Representative, Sowood, or any Loan Party, to the extent applicable,
in respect of this Agreement.


 


32

















 


Section
10.  Miscellaneous.


10.1         Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of any Credit Agreement
Document, any Secured Counterparty Document, or any Sowood Document the
provisions of this Agreement shall govern.


10.2         Continuing Nature
of Provisions.  This Agreement shall
continue to be effective, and shall not be revocable by any party hereto until
the Credit Agreement Obligation Payment Date for all Credit Agreement
Obligations and the Secured Counterparty Payment Date for all Secured
Counterparty Obligations shall have occurred. 
This is a continuing agreement and the Credit Agreement Secured Parties,
the Secured Counterparties, and Sowood may continue, at any time and without
notice to the other parties hereto, to extend credit and other financial
accommodations, lend monies, and provide indebtedness to, or for the benefit
of, the Borrowers or any other Loan Party on the faith hereof.


10.3         Amendments.  No amendment or modification of any of the
provisions of this Agreement shall be effective unless the same shall be in
writing and signed by the Credit Agreement Representative, the Secured
Counterparties, and Sowood and, only if the rights or duties of any Loan Party
are directly affected thereby, such Loan Party.


10.4         Information
Concerning Financial Condition of the Borrowers and the other Loan Parties.  Each of the Credit Agreement Representatives,
the Secured Counterparties, and Sowood hereby assume responsibility for keeping
itself informed of  the financial
condition of the Borrowers and each of the other Loan Parties and all other
circumstances bearing upon the risk of nonpayment of the Credit Agreement
Obligations, the Secured Counterparty Obligations, or the Sowood Obligations,
as the case may be.  Each of the Credit
Agreement Representatives, the Secured Counterparties, and Sowood hereby agrees
that no party shall have any duty to advise any other party of information
known to it regarding such condition or any such circumstances.  In the event any Credit Agreement
Representative, any Secured Counterparty, or Sowood, in its sole discretion,
undertakes at any time to provide any information to any other party to this
Agreement, it shall be under no obligation (i) to provide any such information
to such other party or any other party on any subsequent occasion, (ii) to
undertake any investigation not a part of its regular business routine, or
(iii) to disclose any other information.


10.5         Governing Law.  This Agreement shall be construed in
accordance with and governed by the law of the State of New York, except as
otherwise required by mandatory provisions of law and except to the extent that
remedies provided by the laws of any jurisdiction other than the State of New
York are governed by the laws of such jurisdiction.


10.6         Submission to
Jurisdiction.  (a)  Each party hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and


 


33

















 


unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement shall affect any right that any of the Credit
Agreement Secured Parties, the Secured Counterparties, or Sowood may otherwise
have to bring any action or proceeding relating to this Agreement or any Credit
Agreement Documents, the Secured Counterparty Documents, or the Sowood
Documents against the Borrowers or any other Loan Party or its properties in
the courts of any jurisdiction.


(b)           Each party hereto hereby irrevocably
and unconditionally waives to the fullest extent they may legally and
effectively do so (i) any objection it may now or hereafter have to the laying
of venue of any suit, action, or proceeding arising out of or relating to this
Agreement in any court referred to in paragraph (a) of this Section and (ii)
the defense of an inconvenient forum to the maintenance of such suit, action,
or proceeding.


(c)           Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices
in Section 10.7.  Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


10.7         Notices.  Unless otherwise specifically provided
herein, any notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telecopied, or sent by
overnight express courier service or United States mail and shall be deemed to
have been given when delivered in person or by courier service, upon receipt of
a telecopy or five days after deposit in the United States mail (certified,
with postage prepaid and properly addressed). 
For the purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this Section) shall be
as set forth below each party’s name on the signature pages hereof, or, as to
each party, at such other address as may be designated by such party in a
written notice to all of the other parties.


10.8         Successors and
Assigns.  This Agreement shall be
binding upon and inure to the benefit of each of the parties hereto and each of
the Credit Agreement Secured Parties and their respective successors and
assigns, and nothing herein is intended, or shall be construed to give, any
other Person any right, remedy, or claim under, to or in respect of this
Agreement or any Collateral.  All
references to any Loan Party shall include any Loan Party as
debtor-in-possession and any receiver or trustee for such Loan Party in any
Insolvency Proceeding.


10.9         Headings.  Section headings used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting,
this Agreement.


10.10       Severability.  Any provision of this Agreement held to be
invalid, illegal, or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality, or
unenforceability without affecting the validity, legality, and


 


34

















 


enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


10.11       Counterparts;
Integration; Effectiveness.  This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement. This Agreement shall become
effective when it shall have been executed by each party hereto.


10.12       Additional Secured
Counterparties.  If any Person elects
to become a Secured Counterparty, such Person may become a party to this
Agreement by executing and delivering to each Credit Agreement Representative,
each Secured Counterparty, Sowood, and the Borrowers a joinder agreement in
substantially the form of the attached Exhibit D, whereupon such Person shall
be bound by the terms of this Agreement as a Secured Counterparty as indicated
in such joinder agreement.


10.13       Existing
Intercreditor Agreement.  Each Loan
Party, Sowood, and VPEM agrees that the Intercreditor Agreement dated as of September
27, 2002 (“Existing Intercreditor Agreement”)
between Sowood and VPEM has terminated and this Agreement supersedes the
Existing Intercreditor Agreement.


 


35

















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.


	
   

  	
  SOCIETE
  GENERALE, as Credit Agreement

  
	
   

  	
  Representative
  for and on behalf of the Credit

  
	
   

  	
  Agreement
  Secured Parties

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Emmanuel
  Chesneau

  
	
   

  	
  Name: 

  	
  Emmanuel
  Chesneau

  
	
   

  	
  Title: 

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Chung
  Taek-Oh

  
	
   

  	
  Name: 

  	
  Chung Taek-Oh

  
	
   

  	
  Title: 

  	
  Associate

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for
  Notices: 1221 Avenue of the Americas

  
	
   

  	
  New York, NY
  10020

  
	
   

  	
  Attention: Mr.
  Emmanuel Chesneau

  
	
   

  	
  Telecopy No.: 212-278-7953

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:
  1221 Avenue of the Americas

  
	
   

  	
  New York, NY
  10020

  
	
   

  	
  Attention: Ms.
  Barbara Paulsen

  
	
   

  	
  Telecopy No.:
  212-278-7953

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  VIRGINIA POWER ENERGY MARKETING,

  
	
   

  	
  INC., as
  Secured Counterparty

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
  Name: 

  	
  [ILLEGIBLE]

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for
  Notices:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy No.:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy No.:

  	
   

  
							



 


36

















 


 


 


	
   

  	
  SOWOOD COMMODITY PARTNERS FUND LP

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  SOWOOD COMMODITY
  PARTNERS GP, LP, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  Sowood GP LLC,
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Megan
  Kelleher

  
	
   

  	
  Name: 

  	
  Megan Kelleher

  
	
   

  	
  Title: 

  	
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for
  Notices: 500 Boylston Street, 17th floor

  
	
   

  	
  Boston, MA 02116

  
	
   

  	
  Attention: Megan
  Kelleher

  
	
   

  	
  Telecopy No.: 617-603-3330

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy No.:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name: 

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title: 

  	
  Executive Vice President, Chief Operating Officer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY ELECTRIC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name: 

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title: 

  	
  Vice President, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name: 

  	
  Carole R. Artman Hodge

  
	
   

  	
  Title: 

  	
  Executive Vice President, Chief Operating Officer and Secretary

  
					



 


37

















 


MXENERGY CAPITAL HOLDINGS CORP.


MXENERGY CAPITAL CORP.


ONLINE CHOICE INC.


MXENERGY GAS CAPITAL HOLDINGS CORP.


MXENERGY ELECTRIC
CAPITAL HOLDINGS CORP.


MXENERGY GAS CAPITAL CORP.


MXENERGY ELECTRIC CAPITAL CORP.


TOTAL GAS & ELECTRIC INC.


 


	
   

  	
  By: 

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name: 

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title: 

  	
  Executive  Vice President,
  Chief Operating Officer and Secretary

  



 


 


38

















 


	
   

  	
  TOTAL GAS & ELECTRICITY (PA) INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Carole R. Artman-Hodge

  
	
   

  	
  Name: 

  	
  Carole R. Artman-Hodge

  
	
   

  	
  Title: 

  	
  Chief Operating Officer

  
	
   

  	
   

  
	
   

  	
  For the
  Borrowers and Guarantors:

  
	
   

  	
   

  
	
   

  	
  Address for
  Notices: 595 Summer Street, Suite 300

  
	
   

  	
  Stamford, CT
  06901

  
	
   

  	
  Attention: Mr.
  Chaitu Parikh

  
	
   

  	
  Telecopy No.:
  203-356-1318

  
	
   

  	
   

  
	
   

  	
  With a copy to:
  595 Summer Street, Suite 300

  
	
   

  	
  Stamford, CT
  06901

  
	
   

  	
  Attention: Mr.
  Thomas W. Hartmann

  
	
   

  	
  Telecopy No.:
  203-356-1318

  



 


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