FOURTH MODIFICATION TO CREDIT
AGREEMENT
WITH MODIFICATIONS TO
THE NON REVOLVING LINE OF CREDIT PROMISSORY NOTE
(Renegy Holdings, Inc., Credit
Agreement dated March 28, 2008)
THIS FOURTH
MODIFICATION TO CREDIT AGREEMENT (this “ Agreement
”) is entered into as of JANUARY 14, 2009 by and between
COMERICA BANK , a Texas banking corporation
(“Lender”), and RENEGY HOLDINGS , INC. ,
a Delaware corporation (the “ Borrower ”).
Robert Merrill Worsley (“ RMW ”),
Christi Marie Worsley ( “ CMW ”), The
Robert Merrill Worsley and Christi Marie Worsley Family Revocable
Trust, dated July 28, 1998 (“Trust”), NZ Legacy,
LLC , an Arizona limited liability company (“ NZ
Legacy ”), and New Mexico & Arizona Land Company,
LLC , an Arizona limited liability company (“ NMAL
”) (RMW, CMW, Trust, NZ Legacy and NMAL are also referred to
individually and collectively as the “ Guarantor
” and together with Borrower the “ Credit
Parties ”) are joining in the execution and delivery of
this Agreement to evidence its acknowledgment of, consent to, and
agreement with, the terms and conditions of this Agreement and the
representations, warranties and obligations of Guarantor under this
Agreement.
A. Lender has
extended to Borrower a non revolving line of credit facility in the
principal amount not to exceed $7,250,000.00 (the “
NRLC ”), pursuant to the terms and conditions set
forth in the Credit Agreement dated March 28, 2008, as
modified by that First Modification to Credit Agreement with
Modifications to the Cash Collateral Account Agreement dated
November 14, 2008 by and between Borrower and Lender, as
further modified by that Second Modification to Credit Agreement
with Modifications to the Non Revolving Line of Credit Promissory
Note dated November 30, 2008 by and between Borrower and
Lender, and as further modified by that Third Modification to
Credit Agreement with Modifications to the Non Revolving Line of
Credit Promissory Note dated December 29, 2008 by and between
Borrower and Lender (collectively the “ Credit
Agreement ”), and secured by the deeds of trust set forth
on Schedule A attached hereto and incorporated by this
reference, the Credit Documents, Note, Cash Collateral Account
Agreement, and other documents related to the transactions
contemplated therein (collectively the “ Loan
Documents ”). Each Guarantor has guaranteed certain
obligations of Borrower with respect to the Loan Documents pursuant
to the guaranty executed by each Guarantor in favor and for the
benefit of Lender as and to the extent set forth in such Guaranty.
The term “Loan Documents” shall hereafter include the
Guaranty (as defined in the Credit Agreement). Capitalized terms
not otherwise defined herein shall have the meaning ascribed to
such capitalized terms in the Credit Agreement.
B. The Credit
Parties have requested that Lender agree to convert the NRLC under
the Credit Agreement to a revolving line of credit.
C. The Credit
Parties have requested that Lender make available to Borrower an
additional revolving line of credit in the amount (“ L/C
Line ”) in the principal amount not to exceed $2,762,342
for the sole purpose of supporting a standby letter of
credit.
D. Lender is
willing to agree to such requests on the terms and conditions set
forth in this Agreement.
For good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. The Credit
Agreement is hereby modified as follows:
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A.
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All
references to “NRLC” are hereby deleted and replaced
with “RLC”.
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B.
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Recital A(1) is hereby modified by
deleting the word “non” from the first
sentence.
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C.
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Section 1.1, the definition of
“Advance “ is deleted and replaced in its entirety with
the following:
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“ Advance ”
means, as applicable, (1) all loans advanced by Lender to
Borrower under the RLC, and (2) any amounts drawn under the
L/C issued under the L/C Line.
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D.
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Section 1.1 is modified by
adding a definition of “APS” as follows:
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“ APS ” means the
Arizona Public Service Company.
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E.
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Section 1.1 is modified by
adding a definition of “APS Agreement” as
follows:
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“ APS Agreement ”
means the Amended and Restated Transaction Confirmation, effective
August 15, 2006.
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F.
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Section 1.1 is modified by
adding a definition of “Cash Collateral Account” as
follows:
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“ Cash Collateral
Account ” shall have the meaning set forth in the Cash
Collateral Account Agreement.
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G.
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Section 1.1, the definition of
“Cash Collateral Account Agreement” is deleted and
replaced in its entirety with the following:
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“ Cash Collateral Account
Agreement ” means the Amended and Restated Cash
Collateral Account Agreement dated January ___, 2009, executed and
delivered by the Borrower in favor and for the benefit of the
Lender.
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H.
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Section 1.1 is modified by
adding a definition of “CoBank” as follows:
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“ CoBank ” means
CoBank, ACB, as administrative agent
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I.
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Section 1.1, the definition of
“Credit Documents” is deleted and replaced in its
entirety with the following:
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“ Credit Documents
” means this Credit Agreement, the Notes, the Guaranty, the
Security Documents and any written agreements, certificates or
documents (and with respect to this Credit Agreement and such other
written agreements and documents, any amendments or supplements
thereto or modifications thereof) executed or delivered pursuant to
the terms of this Credit Agreement.
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J.
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Section 1.1, the definition of
“Daily Adjusting LIBOR Rate” is deleted and replaced in
its entirety with the following:
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“ Daily Adjusting LIBOR
Rate ” means for any day, a per annum interest rate which
is equal to the sum of:
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(a) LIBOR plus
4.25%, applied to all amounts advanced and outstanding under the
RLC; or
(b) LIBOR plus
4.25%, applied to all amounts drawn under the L/C issued under the
L/C Line.
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K.
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Section 1.1 is modified by
adding a definition of “Daily Excess Production” as
follows:
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“ Daily Excess
Production ” means the number of megawatt-hours produced
from operation of Snowflake White Mountain Power Plant in excess of
576 MWh on any given day
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L.
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Section 1.1 is modified by
adding a definition of “Disbursement” as
follows:
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“ Disbursement ”
shall have the meaning set forth in Section 3.9
hereof.
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M.
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Section 1.1 is modified by
adding a definition of “Issuing Bank” as
follows:
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“ Issuing Bank ”
means Lender and/or any affiliate thereof acting in its capacity as
issuer of the L/C.
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N.
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Section 1.1 is modified by
adding a definition of “L/C” as follows:
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“ L/C ” means the
Comerica Bank Standby Letter of Credit Number ______ issued by
Issuing Bank to CoBank, as beneficiary, in the stated amount of
$2,762,342.
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O.
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Section 1.1, the definition of
“Loan” or “Loans” is deleted and replaced
in its entirety with the following:
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“ Loan ” or
“ Loans ” means the amounts advanced to or for
the benefit of Borrower pursuant to the Agreement, including those
advances made under the RLC and any amounts drawn under the L/C
issued under the L/C Line.
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P.
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Section 1.1, the definition of
“Maturity Date” is deleted and replaced in its entirety
with the following:
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“ Maturity Date ”
means, the RLC Maturity Date or the L/C Line Maturity Date, as
applicable.
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Q.
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Section 1.1 is modified by
adding a definition of “Maximum L/C Line Amount” as
follows:
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“ Maximum L/C Line
Amount ” means the lesser of $2,762,342 and the stated
amount of the L/C as such amount may be decreased from time to
time.
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R.
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Section 1.1, the definition of
“Maximum RLC Loan Amount” is deleted and replaced in
its entirety with the following:
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“ Maximum RLC Loan
Amount ” means the lesser of $7,250,000 and the balance
of funds on deposit in the Cash Collateral Account from time to
time.
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S.
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Section 1.1 is modified by
adding a definition of “MWh” as follows:
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“ MWh ” means
megawatt-hours.
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T.
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Section 1.1 is modified by
adding a definition of “L/C Line” as
follows:
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“ L/C Line ”
means a non-revolving line of credit in the principal amount not to
exceed $2,762,342 for any advances of funds drawn under the
L/C.
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U.
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Section 1.1 is modified by
adding a definition of “L/C Line Maturity Date” as
follows:
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“ L/C Line Maturity
Date ” means December 1, 2009, or such earlier date
on which all amounts advanced for draws under the L/C issued under
L/C Line first become due and payable as provided
herein.
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V.
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Section 1.1 is modified by
adding a definition of “L/C Note” as
follows:
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“ L/C Note ”
means the Revolving Line of Credit Promissory Note dated January
___, 2009 in the amount of the Maximum L/C Line Amount executed by
Borrower and delivered pursuant to the terms of this Credit
Agreement, together with any renewals, extensions, modifications or
replacements thereof.
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W.
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Section 1.1, the definition of
“Notes” is deleted and replaced in its entirety with
the following:
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“ Note(s) ”
means, separately or collectively, as applicable, the RLC Note, the
L/C Note, and any note or notes required by Lender to be executed
by any Borrower in connection with the Obligations, and any other
note as notes issued in substitution, replacement or renewal of, or
that amend or supersede any of the foregoing notes.
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X.
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Section 1.1, the definition of
“RLC Maturity Date” is deleted and replaced in its
entirety with the following:
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“ RLC Maturity Date
” means December 1, 2009, or such earlier date on which
all amounts advanced under the RLC first become due and payable as
provided herein.
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Y.
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Section 1.1 is modified by
adding a definition of “Stated Expiration Date” as
follows:
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“ Stated Expiration
Date ” of the L/C means the expiration date as stated in
the L/C.
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Z.
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The
first paragraph of Section 2.2 is deleted and replaced with
the following:
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2.2
Revolving Line of Credit .
Subject to the
terms and conditions set forth in this Credit Agreement, Bank
agrees to make RLC Advances to Borrower from time to time on or
before the RLC Maturity Date, provided that the outstanding amount
of RLC Advances from time to time shall not exceed the Maximum RLC
Loan Amount. The RLC shall be a revolving line of credit, against
which RLC Advances may be made to Borrower, repaid by Borrower and
new Advances made to Borrower, as Borrower may request, provided
that (i) no Advance under the RLC shall be made if an Event of
Default shall have occurred and be continuing; (ii) no Advance
under the RLC shall be made that would cause the outstanding
principal balance of the RLC to exceed the Maximum RLC Loan Amount.
Upon the occurrence of an Event of Default, Bank, in its absolute
and sole discretion and without notice, may suspend the commitment
to make RLC Advances. The obligation of Borrower to repay RLC
Advances is further evidenced by the RLC Note. Although the
outstanding principal of the RLC Note may be zero from time to
time, the Loan Documents shall remain in full force and effect
until the commitment terminates and all Obligations are paid and
performed in full. No RLC Advance shall be made on or after the RLC
Maturity Date.
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AA.
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Article 3 is modified by
deleting “(INTENTIONALLY OMITTED)” and inserting the
following:
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3.1 L/C Line
Commitment . Subject to the conditions herein set forth, and
subject to Borrower’s payment to Lender of a commitment fee
in the amount of $20,717.57, Lender agrees to extend the L/C Line
against which Lender shall issue the L/C in an amount not to exceed
the Maximum L/C Line Amount.
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3.2 L/C Line
of Credit . Subject to the terms and conditions set forth in
this Credit Agreement, the L/C Line shall be a non-revolving line
of credit against which the Issuing Bank shall issue the L/C,
provided that the outstanding amount of Advances under the L/C Line
from time to time shall not exceed the stated amount of the L/C at
the time of such advance, and no Advance shall be made for draws
under the L/C on or after the Stated Expiration Date.
(a) The
obligations of Borrower to repay any amounts advanced under the L/C
shall be further evidenced by the L/C Note.
(b) Advances under
the L/C Line shall be made solely to fund Disbursements under the
L/C.
3.3 L/C Line
Advances . Any Advances for draws on the L/C issued under the
L/C Line shall bear interest and be payable to Lender upon the
following terms and conditions:
(a) Interest shall
accrue on the unpaid principal of the Advances outstanding at the
Daily Adjusting Libor Rate, except that during any period of time
during which, in accordance with the terms and conditions of this
Credit Agreement, the Indebtedness evidenced by the L/C Note shall
bear interest at the Base Rate.
(i)
If, at any time, Lender determines that, (a) Lender is unable
to determine or ascertain the Daily Adjusting Libor Rate, or
(b) by reason of circumstances affecting the foreign exchange
and interLender markets generally, deposits in eurodollars in the
applicable amounts or for the relative maturities are not being
offered to Lender, or (c) the Daily Adjusting Libor Rate will
not accurately or fairly cover or reflect the cost to Lender of
maintaining any of the Indebtedness under the L/C Note at the Daily
Adjusting Libor Rate, then Lender shall forthwith give notice
thereof to the undersigned. Thereafter, beginning on the first day
after the end of the then applicable LIBOR Interest Period and
continuing until Lender notifies the Borrower that such conditions
or circumstances no longer exist the Base Rate shall be the
applicable interest rate for all Indebtedness under the L/C Note
during such period of time.
(ii)
If, after the date hereof, the introduction of, or any change in,
any applicable law, rule or regulation or in the interpretation or
administration thereof by any governmental authority charged with
the interpretation or administration thereof, or compliance by
Lender (or its LIBOR Lending Office) with any request or directive
(whether or not having the force of law) of any such authority,
shall make it unlawful or impossible for the Lender (or its LIBOR
Lending Office) to make or maintain any Advance with interest at
the Daily Adjusting Libor Rate, Lender shall forthwith give notice
thereof to the undersigned. Thereafter, beginning on the first day
after the end of the then applicable LIBOR Interest
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