FIRST AMENDED AND
RESTATED
CASH COLLATERAL ACCOUNT
AGREEMENT
THIS FIRST AMENDED
AND RESTATED CASH COLLATERAL ACCOUNT AGREEMENT (this “
Agreement ”), dated as of January 14, 2009, is
entered into by and between RENEGY HOLDINGS, INC., a Delaware
corporation, (collectively, “ Grantor ” and
“ Borrower ”) and COMERICA BANK, a Texas
corporation (hereinafter sometimes referred to as “
Secured Party ” or “ Lender
”).
WHEREAS ,
Lender has extended to Borrower a revolving line of credit facility
in the principal amount not to exceed $7,250,000.00 (the
“RLC”), pursuant to the terms and conditions set forth
in the Credit Agreement dated March 28, 2008, as modified by
the 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 the
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, as
further modified by the 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,
and as further modified by the Fourth Modification to Credit
Agreement with Modifications to the Non Revolving Line of Credit
Promissory Note (the “ Fourth Modification ”) of
even date herewith by and between Borrower and Lender (collectively
the “ Credit Agreement ”).
WHEREAS, pursuant
to the Fourth Modification, Grantor has, as of the date hereof,
deposited $7,250,000.00 to the Cash Collateral Account (as defined
herein) maintained and operated by Grantor with Secured Party,
and/or as designated by Secured Party.
WHEREAS ,
Secured Party has required as a condition precedent to the
effectiveness of the Fourth Modification that Grantor execute this
Agreement.
NOW, THEREFORE
, in consideration of the mutual covenants, promises, and
agreements set forth herein, and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are
hereby acknowledged the parties hereto covenant and agree as
follows:
1.
Additional Defined Terms . Capitalized terms used in this
Agreement, but which are not otherwise expressly defined in this
Agreement, shall have the respective meanings given thereto in the
Credit Agreement. In addition, the following terms shall have the
following meanings:
“
Cash Collateral Account ”: A demand deposit account
with Secured Party, Account No.
, or any successor deposit account operated and maintained by
Grantor, and/or approved by Secured Party. All references to the
Cash Collateral Account shall include all subaccounts and
securities thereof and all securities accounts, if any, maintained
in connection therewith. All parties agree that the Account is a
“deposit account” within the meaning of the
UCC.
“
Collateral ”: As defined in Section 2
below.
“
Event of Default ”: As defined in
Section 8 .
“
Secured Obligations ”: As defined in
Section 2 .
“
UCC ”: The Uniform Commercial Code as in effect in the
State of Arizona.
2.
Security for Secured Obligations . To secure the payment and
performance of the Loan by the Grantor and any and all other
obligations, contingent or otherwise, whether now existing or
hereafter arising, whether matured or unmatured, liquidated or
unliquidated, direct or indirect, absolute or contingent, joint or
several, due or to become due, now existing or hereafter arising of
Grantor to Secured Party or to any of Secured Party’s
subsidiaries or affiliates or successors arising under or in
connection with the Notes, including the Credit Agreement as the
same may from time to time be amended, modified, extended, renewed
or restated (the “ Secured Obligations ”),
Grantor hereby sells, assigns, conveys, grants, pledges,
hypothecates and transfers to Secured Party a
first-in-lien-priority continuing security interest in all of
Grantor’s right, title and interest in and to the following
property, in each case whether certificated or uncertificated,
whether now owned or existing or hereafter acquired or arising and
regardless of where located (all of the same, collectively, the
“ Collateral ”):
(a) the
Cash Collateral Account and all cash, checks, drafts, documents,
certificates, certificates of deposit, passbooks, instruments and
other amounts, if any, from time to time deposited or held (whether
by physical possession, book entry or otherwise) in and/or
evidencing the Cash Collateral Account, including, without
limitation, all wire transfers made, or in the process of being
made, and all other deposits, to the Cash Collateral
Account;
(b) all
interest, cash, instruments and other property from time to time
held (whether by physical possession, book entry or otherwise) in,
received, receivable, or otherwise payable in respect of, or in
exchange for, any or all of the foregoing;
(c) all
present and future accounts, contract rights, chattel paper
(whether tangible or electronic), deposit accounts, documents,
general intangibles (including, without limitation, payment
intangibles and software), goods, instruments (including, without
limitation, promissory notes), investment property, letter of
credit rights, letters of credit, money, supporting obligations (in
each case as such terms are defined in the UCC), and any other
rights and interests pertaining to any of the foregoing, all
documents, instruments or passbooks now or hereafter evidencing the
Cash Collateral Account, all replacements, substitutions, renewals,
products or proceeds of any of the foregoing, and all powers,
options, rights, privileges and immunities pertaining thereto
(including the right to make withdrawals therefrom); and
2
(d) to
the extent not covered by clauses (a) , (b) , or
(c) above, all products and proceeds as defined under the
UCC of any or all of the foregoing of every type.
3.
Warranties and Covenants . Grantor hereby warrants and
represents to Secured Party, and covenants and agrees with Secured
Party as follows:
(a) It
is acknowledged and agreed by the parties hereto that Secured Party
shall have sole and exclusive possession and control of the
Collateral and that this Agreement constitutes a present, absolute
and current assignment of all the Collateral and is effective upon
the execution and delivery hereof. Grantor acknowledges that this
Agreement is an “authenticated” record and that the
arrangements established under this Agreement constitute
“control” of the Cash Collateral Account, as each of
these terms is defined in Article 9 of the UCC.
(b) Grantor
is and shall remain the sole, lawful, beneficial and record owner
of the Collateral, free and clear of all liens, restrictions,
claims, pledges, encumbrances, charges, claims of third parties and
rights of set-off or recoupment whatsoever (other than those in
favor of Secured Party hereunder), and Grantor has the full and
complete right, power and authority to pledge and grant a security
interest in the Collateral in favor of Secured Party, in accordance
with the terms and provisions of this Agreement.
(c) This
Agreement creates a valid and binding first-in-lien priority pledge
and assignment of and security interest in the Collateral securing
the payment a
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