FIRST MODIFICATION TO CREDIT
AGREEMENT
WITH MODIFICATIONS TO THE
CASH COLLATERAL ACCOUNT AGREEMENT
THIS FIRST MODIFICATION AGREEMENT (this “
Agreement ”) is entered into as of November 14,
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 $6,200,000.00 (the “ NRLC ”), pursuant to
the terms and conditions set forth in the Credit Agreement dated
March 28, 2008 (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 ”). To induce the Lender modify the Loan
Documents as set forth in this Agreement, NZ Legacy and NMAL have
agreed, contemporaneously with the execution of this Agreement, to
execute and deliver secured guaranties from each of NZ Legacy and
NMAL in favor of Lender. 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 as modified by this
Agreement). Capitalized terms not otherwise defined herein shall
have the meaning ascribed to such capitalized terms in the Credit
Agreement.
B. Borrower and Guarantors (collectively,
the “ Credit Parties ”) have requested that
Lender agree to suspend Borrowers’ obligations under
Section 9.23 of the Credit Agreement for the period specified
below and that certain other modifications be made to the Credit
Agreement as provided herein.
C. Lender is willing to agree to such
request 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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Section 1.1, the definition of
“Base Rate” is modified by deleting “1%”
and replacing it with “300 basis points” and as
modified shall in its entirety read as follows:
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“ Base
Rate ” means the rate per annum equal to the sum of the
Prime Rate plus 300 basis points.
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B.
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Section 1.1, the definition of
“Guaranty” is deleted and replaced in its entirety with
the following:
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“
Guaranty ” means collectively (i) the Secured
Guaranty dated March 28, 2008 executed and delivered by
(1) Robert Merrill Worsley, a married man, (2) Christi Marie
Worsley, a married woman, and (3) the Robert Merrill Worsley
and Christi Marie Worsley Family Revocable Trust, dated
July 28, 1998, in favor and for the benefit of Lender;
(ii) the secured guaranty dated of even date herewith executed
and delivered by NZ Legacy, LLC, a limited liability company, in
favor and for and for the benefit of Lender; and (iii) the
secured guaranty dated of even date herewith executed and delivered
by New Mexico and Arizona Land Company, LLC, an Arizona limited
liability company, in favor and for the benefit of
Lender.
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C.
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Section 1.1, the definition of
“LIBOR” is deleted and replaced in its entirety with
the following:
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“
LIBOR ” means, for any day, a per annum interest rate
which is equal to the quotient of the following:
(a) for
any day, the per annum rate of interest determined on the basis of
the rate for deposits in United States Dollars for a period equal
to one (1) month, appearing on Page BBAM of the Bloomberg
Financial Markets Information Service as of 8:00 a.m. (Arizona
time) (or as soon thereafter as practical), on such day, or if such
day is not a Business Day, on the immediately preceding Business
Day. In the event that such rate does not appear on Page BBAM of
the Bloomberg Financial Markets Information Service (or otherwise
on such Service) on any day, LIBOR for such day shall be determined
by reference to such other publicly available service for
displaying eurodollar rates as may be agreed upon by Lender and
Borrower, or, in the absence of such agreement, LIBOR for such day
shall, instead, be determined based upon the average of the rates
at which Lender is offered dollar deposits at or about 8:00 a.m.
(Arizona time) (or soon thereafter as practical), on such day, or
if such day is not a Business Day, on the immediately preceding
Business Day, in the interLender eurodollar market in an amount
comparable to the principal amount of the Loan for a period of one
(1) month;
2
(b) a
percentage (expressed as a decima
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