Exhibit
10.10


AMENDMENT NO. 1


This Amendment No. 1 dated as of August 1, 2006 (this “Amendment”)
is among (a) Société Générale, as Administrative Agent (in such capacity, with
its successors and assigns, the “Credit Agreement Representative”) for
the Credit Agreement Secured Parties, (b) Société Générale (“Société
Générale”) and each additional counterparty that has become a party to the
Intercreditor Agreement prior to the date hereof (Société Générale 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”), and
(d) MxEnergy Holdings Inc., a Delaware corporation, MxEnergy Inc., a Delaware
corporation (“MxEnergy”), MxEnergy Electric Inc., a Delaware corporation
(“MxElectric”, and together with MxEnergy, the “Borrowers”), and
certain of their respective subsidiaries party thereto (the “Intercreditor
Parties”).


INTRODUCTION


A.            The Borrowers, the
Parent, the other Loan Parties, the Credit Agreement Representative and certain
financial institutions are parties to a First Amended and Restated Credit
Agreement dated as of August 1, 2006 (as amended, supplemented, restated, or
otherwise modified from time to time, the “Restated Credit Agreement”)
pursuant to which such financial institutions have agreed to make loans and
extend other financial accommodations to the Borrowers.


B.            MxEnergy, certain of
the other Loan Parties, and Société Générale are parties to the Master
Transaction Agreement dated as of August 1, 2006 pursuant to which Société
Générale has agreed, among other things, to provide natural gas hedging
arrangements for MxEnergy.


C.            The Borrowers and
Société Générale have requested, and, upon this Amendment becoming effective,
the other Intercreditor Parties have agreed, that certain provisions of the Subordination
and Intercreditor Agreement dated as of December 19, 2005 among the
Intercreditor Parties (other than Société Générale) and Virginia Power Energy
Marketing, Inc., a Virginia corporation (“VPEM”) (the “Intercreditor
Agreement”) be amended in the manner provided for in this Amendment.


D.            On the Amendment
Effective Date (as defined below), VPEM was removed as a party to the
Intercreditor Agreement


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


Section 1.               Defined
Terms.  Capitalized terms defined in
the Intercreditor Agreement and used herein shall have the meanings given to such
terms in the Intercreditor Agreement.


Section 2.               Joinder
of Société Générale to Intercreditor Agreement as Secured Counterparty.  Société Générale hereby (a) acknowledges to
the other Intercreditor Parties that it has received a copy of the
Intercreditor Agreement, (b) advises the other Intercreditor Parties that is
has entered into Secured Counterparty Agreements with MxEnergy and certain
other Loan Parties and hereby elects to become a Secured Counterparty and a
party to the Intercreditor


 

















 


Agreement in
accordance with Section 10.12 of the Intercreditor Agreement by executing and
delivering this Amendment.  Upon
execution and delivery by Société Générale of this Amendment to the other
Intercreditor Parties, Société Générale (a) shall have all the rights and benefits
of a “Secured Counterparty” under the Intercreditor Agreement as if it were an
original signatory thereto and (b) agree to be bound by the terms and
conditions set forth in the Intercreditor Agreement and to be obligated
thereunder as if it were an original signatory thereto.  The Intercreditor Parties hereby agree that
this Section 2 shall satisfy the requirements of Section 10.12 of the
Intercreditor Agreement with respect to the joinder of Société Générale to the
Intercreditor Agreement as a Secured Counterparty.


Section 3.               Amendments
to Intercreditor Agreement.


(a)           Amendments
to Section 1.  In Section 1 of the
Intercreditor Agreement:


(i)            “Credit
Agreement Obligations” is amended by substituting “any Lender” for “a Credit
Agreement Secured Party”.


(ii)           “Secured
Counterparty Letter of Credit” is amended by substituting “to secure or
provide credit support in whole or in part the Secured Counterparty Obligations
of such Secured Counterparty” for “to secure in whole or in part the Secured
Counterparty Obligations”.


(iii)          “Secured
Counterparty Primary Collateral” is amended:


(A)          by
inserting “(a)” between “under” and “all contracts” in the second and third
lines and


(B)           by
adding the following to the end:


and (b) all Collateral Accounts and Collateral Account Property


(iv)          In “Secured
Counterparty Security Documents,” “Loan Party” is substituted for “Loan
party”.


(v)           the
following definitions are added in their appropriate alphabetical order:


“Collateral Account” means any
deposit, commodity, or securities account securing a Secured Counterparty’s
Secured Counterparty Obligations.


“Collateral Account Property” means all
securities, securities entitlements, cash and other Property held or maintained
in a Collateral Account from time to time and all proceeds thereof.


 


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(b)           Amendment to Section 2.


(i)            Paragraph (a) of Section 2.3 is
amended by substituting “greater” for “less” in the last line.


(ii)           In
Section 2.4, “, subject to Section 2.2(d) hereof,” is deleted in the last
sentence.


(c)           Amendments to Section 4.  In Section 4 of the Intercreditor Agreement:


(i)            Section 4.2(c)(i) is amended by
adding the phrase “in respect of the Credit Agreement Primary Collateral”
immediately prior to the phrase “provided that”.


(ii)           The
following sentence is added to the end of Section 4.4:


Each of the Credit Agreement Representative, Credit Agreement Secured
Parties, the Secured Counterparties and Sowood agrees that it shall take such
actions as a Secured Counterparty shall request in connection with the exercise
by such Secured Counterparty of its rights and remedies set forth in this
Agreement with respect to such Secured Counterparty’s Secured Counterparty Primary
Collateral.


(iii)          Section
4.7 is amended by (A) adding the phrase “to make demands on or enforce any
guarantee obligations of any Loan Party under its Secured Counterparty
Agreements,” immediately after the phrase “Secured Counterparty Letter of
Credit”, (B) substituting “default, event of default, termination event or
other similar event” for “default”, (C) adding “and exercise any rights or remedies
against its Collateral Accounts and Collateral Account Property” after “draw on
its Secured Counterparty Letter of Credit”, and (D) adding the phrase “(other
than a Secured Counterparty’s Collateral Accounts and any Collateral Account
Property)” immediately after the term “Collateral” in the proviso thereof.


(d)           Amendments
to Section 6.  The following new paragraph
(e) is added to the end of Section 6.08:


(e)           Nothing
contained herein shall prohibit or in any way limit any Credit Agreement
Secured Party or other Secured Counterparty from exercising any rights,
remedies, powers and privileges available to it at any time under the
Bankruptcy Code or other applicable law with respect to its Swap Contracts with
any Loan Party (including, without limitation, Section 560 of the Bankruptcy
Code).


Section 4.               VPEM
Release.  The Intercreditor Parties
hereby acknowledge and agree that, upon the execution and delivery of the
Release Agreement dated as of August 1, 2006 (the “VPEM Release Agreement”),
among VPEM, Société Générale and MxEnergy and the issuance


 


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by Société
Générale of the SG-VPEM Letters of Credit (as defined in the VPEM Release
Agreement), effective as of the Amendment Effective Date, VPEM shall be
released from its agreements and obligations under and shall otherwise cease to
be a party to the Intercreditor Agreement in all respects and for all purposes.


Section 5.               Conditions
to Effectiveness.  This Amendment
shall become effective on the date (the “Amendment Effective Date”) on
which all of the following conditions precedent have been satisfied or waived:


(a)           The Intercreditor Parties shall have
executed and delivered this Amendment and


(b)           the
Release Agreement dated as of August 1, 2006, executed by VPEM, MxEnergy and
Société Générale shall have become effective.


Section 6.               Miscellaneous.


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


(i)            Corporate
Power; Authorization; Enforceable Obligations.


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


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


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


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


(ii)           No
Legal Bar.  The execution, delivery
and performance of this Amendment will not violate any applicable law or
contractual obligation of such


 


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Intercreditor Party and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such applicable law or contractual obligation.


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


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


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


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


 


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


 


 


 


	
   

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

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Chung Taek-Oh

  
	
   

  	
  Name:
  

  	
  Chung
  Taek-Oh

  
	
   

  	
  Title:
  

  	
  Associate

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Barbara Paulsen

  
	
   

  	
  Name:
  

  	
  Barbara
  Paulsen

  
	
   

  	
  Title:
  

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SOCIÉTÉ
  GÉNÉRALE, as Secured Counterparty

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Francois-Xavier Saint-Macray

  
	
   

  	
  Name:
  

  	
  Francois-Xavier
  Saint-Macray

  
	
   

  	
  Title:
  

  	
  Managing
  Director, Global Head of Commodities Trading

  
	
   

  	
   

  	
   

  
	
   

  	
  Address
  for Notices: 1221 Avenue of the Americas New York, NY 10020

  
	
   

  	
  Attention:
  Christophe LePage

  
	
   

  	
  Telecopy
  No.: (212) 278-5699

  
	
   

  	
   

  
	
   

  	
  With
  a copy to: 1221 Avenue of the Americas

  
	
   

  	
  New
  York, NY 10020

  
	
   

  	
  Attention:
  Adrian Lismore

  
	
   

  	
  Telecopy
  No.: (212) 278-6575

  
				



 


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  MXENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
   

  	
  Executive
  Vice President, Chief Operating Officer, and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  ELECTRIC INC.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
   

  	
  Executive
  Vice President, Secretary, and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
   

  	
  Executive
  Vice President, Chief Operating Officer, and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
   

  	
  Executive
  Vice President, Chief Operating Officer, and Secretary

  



 


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  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:

  
	
   

  	
  c/o
  Sowood Capital Management LP

  
	
   

  	
  500
  Boyston St.

  
	
   

  	
  17th
  Floor, Boston, MA 02116

  
	
   

  	
  Attention:
  Megan Kelleher

  
	
   

  	
  Telecopy
  No.: (617) 603-3330

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy
  No.:

  	
   

  
					



 


 


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