OTHER PERSON AGAINST THE SECURED PARTY, OR (C) ANY OTHER
CIRCUMSTANCE WHATSOEVER (WITH OR WITHOUT NOTICE TO OR KNOWLEDGE OF ANY GRANTOR)
WHICH CONSTITUTES, OR MIGHT BE CONSTRUED TO CONSTITUTE, AN EQUITABLE OR LEGAL
DISCHARGE OF ANY GRANTOR FOR THE ISDA OBLIGATIONS, IN BANKRUPTCY OR IN ANY OTHER
INSTANCE. WHEN MAKING ANY DEMAND HEREUNDER OR OTHERWISE PURSUING ITS RIGHTS AND
REMEDIES HEREUNDER AGAINST ANY GRANTOR, THE SECURED PARTY MAY, BUT SHALL BE
UNDER NO OBLIGATION TO, MAKE A SIMILAR DEMAND ON OR OTHERWISE PURSUE SUCH RIGHTS
AND REMEDIES AS IT MAY HAVE AGAINST ANY OTHER GRANTOR OR ANY OTHER PERSON OR
AGAINST ANY COLLATERAL SECURITY OR GUARANTY FOR
32
THE ISDA OBLIGATIONS OR ANY RIGHT OF OFFSET WITH RESPECT THERETO, AND ANY
FAILURE BY THE SECURED PARTY TO MAKE ANY SUCH DEMAND, TO PURSUE SUCH OTHER
RIGHTS OR REMEDIES OR TO COLLECT ANY PAYMENTS FROM ANY OTHER GRANTOR OR ANY
OTHER PERSON OR TO REALIZE UPON ANY SUCH COLLATERAL SECURITY OR GUARANTY OR TO
EXERCISE ANY SUCH RIGHT OF OFFSET, OR ANY RELEASE OF ANY OTHER GRANTOR OR ANY
OTHER PERSON OR ANY SUCH COLLATERAL SECURITY, GUARANTY OR RIGHT OF OFFSET, SHALL
NOT RELIEVE ANY GRANTOR OF ANY OBLIGATION OR LIABILITY HEREUNDER, AND SHALL NOT
IMPAIR OR AFFECT THE RIGHTS AND REMEDIES, WHETHER EXPRESS, IMPLIED OR AVAILABLE
AS A MATTER OF LAW, OF THE SECURED PARTY AGAINST ANY GRANTOR. FOR THE PURPOSES
HEREOF "DEMAND" SHALL INCLUDE THE COMMENCEMENT AND CONTINUANCE OF ANY LEGAL
PROCEEDINGS.
8.20
TERMINATION; REINSTATEMENT.
THIS AGREEMENT SHALL TERMINATE,
SUBJECT TO REINSTATEMENT IN ACCORDANCE WITH THIS SECTION 8.20, UPON THE
DISCHARGE OF ISDA OBLIGATIONS.
THIS AGREEMENT WILL BE REINSTATED IF AT ANY TIME
ANY PAYMENT OR DISTRIBUTION IN RESPECT OF ANY OF THE ISDA OBLIGATIONS IS
RESCINDED OR MUST OTHERWISE BE RETURNED IN AN INSOLVENCY OR LIQUIDATION
PROCEEDING OR OTHERWISE BY ANY HOLDER OF ISDA OBLIGATIONS OR ANY REPRESENTATIVE
OF ANY SUCH PARTY (WHETHER BY DEMAND, SETTLEMENT, LITIGATION OR OTHERWISE).
IN
THE EVENT THAT ANY REPRESENTATIVE OR ANY HOLDER OF ANY ISDA OBLIGATION RECOVERS
ALL OR ANY PART OF A PAYMENT OR DISTRIBUTION MADE WITH RESPECT TO AN ISDA
OBLIGATION IN AN INSOLVENCY OR LIQUIDATION PROCEEDING OR OTHERWISE, SUCH
REPRESENTATIVE OR HOLDER, AS THE CASE MAY BE, WILL FORTHWITH DELIVER THE SAME TO
THE SECURED PARTY ON BEHALF OF THE HOLDERS OF AN ISDA OBLIGATION, FOR THE
ACCOUNT OF THE SUCH HOLDERS OF AN ISDA OBLIGATION, TO BE APPLIED IN ACCORDANCE
WITH SECTION 4.1 OF THE INTERCREDITOR AGREEMENT.
UNTIL SO DELIVERED, SUCH
PROCEEDS WILL BE HELD BY THE REPRESENTATIVE OR HOLDER WHO RECEIVED SUCH
PROCEEDS, FOR THE BENEFIT OF THE HOLDERS OF AN ISDA OBLIGATION.
[Remainder of Page Intentionally Left Blank]
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Each of the undersigned has caused this Guarantee and Collateral Agreement to be
duly executed and delivered as of the date first above written.
MXENERGY HOLDINGS INC.
By:
/s/ Jeffrey Mayer
Name: Jeffrey Mayer
Title: President and Chief Executive Officer
MXENERGY INC.
By:
/s/ Jeffrey Mayer
Name: Jeffrey Mayer
Title: President and Chief Executive