THIRD 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 THIRD
MODIFICATION AGREEMENT (this “ Agreement ”) is
entered into as of December 31, 2008 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 $6,500,000.00 (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, and as
further modified by that Second Modification to Credit Agreement
with Modifications to the Non Revolving Line of Credit Promissory
Note dated November 26, 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 the Guaranty.
The term “Loan Documents” shall hereafter include such
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 temporarily increase
the Maximum NRLC Loan Amount under the Credit Agreement from
$6,500,000 to $7,250,000 for the period beginning on
December 30, 2008 and ending on February 15,
2009.
C. The Credit
Parties have requested that Lender agree to extend the suspension
of the minimum liquidity requirement set forth in Section 9.23
of the Credit Agreement until February 15, 2009.
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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Recital A(1) is hereby restated in
its entirety as follows:
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“(1) A
non revolving line of credit facility (the “ NRLC
”) in the principal amount of not to exceed SIX MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($6,500,000.00) for the purpose
of funding costs over-run associated with the Snowflake White
Mountain Power Plant, Borrower’s working capital and other
general corporate uses. For the period beginning on
December 30, 2008 and ending on February 15, 2009 the
principal amount shall not exceed SEVEN MILLION TWO HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($7,250,000.00), thereafter the
principal amount of the NRLC shall not exceed the principal amount
set forth the first sentence of this paragraph.”
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B.
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Section 1.1, the definition of
“Maximum NRLC Loan Amount” is deleted and replaced in
its entirety with the following:
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“
Maximum NRLC Loan Amount ” means Six Million Five
Hundred Thousand and NO/100 Dollars ($6,500,000.00), provided that
the Maximum NRLC Loan Amount shall be increased to Seven Million
Two Hundred Fifty Thousand and No/100 Dollars ($7,250,000.00) for
the period beginning on December 30, 2008 and ending on
February 15, 2009, and thereafter the Maximum NRLC Loan Amount
shall be Six Million Five Hundred Thousand and NO/100 Dollars
($6,500,000.00).”
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C.
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Section 9.23, the last sentence
of the paragraph is deleted and replaced in its entirety with the
following:
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The minimum
liquidity requirement set forth under this Section 9.23
shall be suspended for the period of time beginning
September 30, 2008 and ending on February 15, 2009 after
which time all provisions of this Section 9.23 shall be
in full force and effect.
2. The Non
Revolving Line of Credit Promissory Note is hereby modified as
follows:
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A. By deleting
all references to “$6,500,000” and replacing same with
“$7,250,000”.
B. By deleting
all references to “Six Million Five Hundred Thousand”
and replacing same with “Seven Million Two Hundred Fifty
Thousand”.
3.
Conditions Precedent . Lender’s covenants and
obligations under this Agreement and the effectiveness of this
Agreement are expressly conditioned upon:
A. Execution and
delivery of this Agreement by the Credit Parties;
B. Credit
Parties’ execution and delivery of such other documents and
instruments as Lender may require in connection with the
transactions contemplated hereby, including, without limitation,
certificates and resolutions, incumbency certificates,
modifications of mortgages, deeds of trust, and other security
instruments.
C. Each
representation and warranty set forth in this Agreement and in the
Loan Documents shall be true and correct as of the date of
execution and delivery of this Agreement by the
Borrower.
D.
Borrower’s delivery of the $7,500.00 fee to Lender in
consideration for Lender temporarily increasing the Maximum NRLC
Loan Amount.
E.
Borrower’s delivery of the $2,500.00 fee to the Lender in
consideration for Lender extending the suspension of the minimum
liquidity requirement under Section 9.23 of the Credit
Agreement to February 15, 2009.
F. No Event of
Default shall have occurred and be continuing under the Loan
Documents as of the date hereof.
4.
Representations and Warranties of Borrower and Guarantors .
Each Credit Party represents and warrants to Lender as of the date
of this Agreement as follows: (a) Each entity of Borrower is
duly organized, validly existing and in good standing under the
laws of its state of formation with all power and authority
necessary to own, lease and operate Borrower’s properties and
carry on its business as now conducted and to execute, deliver and
perform this Agreement; (b) all necessary action has been taken on
its part to authorize the execution, delivery and performance of
this Agreement and this Agreement has been duly executed and
delivered by each Credit Party; (c) there are no suits,
actions, proceedings or investigations pending or, to the best of
each Credit Party’s knowledge, threate
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