Exhibit 10.26
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
August 30, 2007, amends the Credit Agreement, dated as of September 1, 2006,
among SNOWFLAKE WHITE MOUNTAIN POWER, LLC ("SWMP"), RENEGY, LLC ("Renegy"),
RENEGY TRUCKING, LLC ("Renegy Trucking" and together with Renegy and SWMP, the
"Borrowers"), the financial institutions from time to time party thereto
(collectively, the "Lenders") and COBANK, ACB, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), as letter of credit
issuer, collateral agent and as a Lender, as amended by the First Amendment to
Credit Agreement, dated as of June 27, 2007, among Borrowers, Lenders and
Administrative Agent (as further amended from time to time, the "Credit
Agreement"). Terms used herein but not defined shall have the meaning given to
them in the Credit Agreement and section references refer to sections of the
Credit Agreement unless otherwise stated.
WHEREAS, SWMP has entered into that certain Amendment No. 3 to Lease
Agreement, dated as of August 23, 2007, a copy of which is attached hereto as
Exhibit A (the "Lease Amendment"), amending the Ground Lease Agreement, dated as
of September 14, 2005, by and between Abitibi Consolidated Sales Corp.
("Abitibi") and SWMP, as amended by that certain Consent and Agreement, dated as
of September 1, 2006, by and among Abitibi, SWMP and Administrative Agent, and
as amended by that certain Amendment No. 2 to Lease Agreement, dated as of
August 2, 2007, by and between Abitibi and SWMP; and
WHEREAS, the Borrowers have requested that the Majority Lenders agree to
amend the Credit Agreement in certain other respects as set forth herein.
NOW THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Waivers. The Administrative Agent and undersigned Lender(s) hereby:
(a) waive any default arising from SWMP's failure to comply with
Section 6.12 or any other provision of the Credit Agreement by entering
into the Lease Amendment;
2. Consents. The Administrative Agent, in consultation with the Independent
Engineer and at the direction of the Majority Lenders, hereby:
(a) consents to the Lease Amendment, as required under Section 6.12 or
any other provision of the Credit Agreement;
3. Amendments. The Credit Agreement is hereby amended as follows:
(a) Section 8.1.11 is hereby deleted in its entirety and replaced with
the following:
8.1.11 Change of Control. The Sponsor (which for purposes of this
Section 8.1.11 shall be deemed to include Sponsor's Affiliates, except
Renegy Holdings (as defined below)) shall cease to directly or
indirectly maintain at least 50.1% of the economic interests in and
voting power of Borrowers (a "Change of Control"); provided, that, in
the event the membership interests in Borrowers are transferred to
Renegy Holdings, Inc. ("Renegy Holdings") pursuant to a transaction in
substantially the form and substance as contemplated by the
Contribution and Merger Agreement, as amended, included as an annex to
Renegy Holdings' Registration Statement on Form S-4 filed with the
Securities and Exchange Commission on August 9, 2007 and pursuant to
which Sponsor will be issued shares of common stock of Renegy Holdings
(the "Transaction"), a Change of Control shall not be deemed to occur
if Sponsor's economic interests in and voting power of Renegy Holdings
falls below 50.1% after the one year anniversary of the
Term-Conversion Date provided Renegy Holdings continues to maintain
directly or indirectly 100% of the economic interests in and voting
power of Borrowers and Sponsor continues to exercise titular and
effective managerial control of Renegy Holdings; provided, further,
that upon Sponsor's death, a Change of Control shall not be deemed to
occur until one year has passed and will not be deemed to occur if as
of such time 100% of the economic and voting interests in Borrowers
(or, in the event the Transaction shall have occurred, Renegy
Holdings) maintained by Sponsor at the time of Sponsor's death have
been transferred, provided that such interests constitute at least
50.1% of the economic and voting interests in Borrowers (or, in the
event the Transaction shall have occurred, Renegy Holdings), so long
as:
(a) the applicable transferee is a corporation, limited liability
company or limited partnership organized or formed in the United
States or a state or commonwealth therein;
(b) at the time of the proposed disposition, the applicable
transferee's unsecured senior long-term debt has a rating of at least
Baa3 by Xxxxx'x and BBB- by S&P;
(c) the electric energy generation business is a substantial part
of the applicable transferee's business;
(d) on or before the date of any such disposition, the applicable
transferee (or its applicable subsidiary) enters into a pledge
agreement in substantially the form of Exhibit D-3-A, pursuant to
which such transferee (or subsidiary) shall pledge all of its
ownership interests in Borrowers to Collateral Agent (or, in the event
the Transaction shall have occurred, the ownership interests in
Borrowers shall continue to be pledged by Renegy Holdings to
Collateral Agent) and executes and delivers all other applicable
Credit Documents as requested by Administrative Agent; and
(e) on or before the date of any such disposition, the applicable
transferee delivers to Administrative Agent (addressed to the Secured
Parties)
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such opinions, resolutions, certificates and other evidence as
Administrative Agent may reasonably request (all of which shall be in
form and substance reasonably satisfactory to Administrative Agent) to
ensure Administrative Agent's reasonable satisfaction as of the date
of any such disposition with the matters covered by Sections 3.1.1
through 3.1.6(a), 3.1.8 and 3.1.18 (with respect solely to the
applicable transferee and, if reasonably requested by Administrative
Agent, Borrowers and, if the Transaction shall occur, Renegy
Holdings);
provided further that, any transaction involving the effective
transfer by Sponsor of interests to a purchaser of production tax
credits or similar tax attributes arising from ownership of a Borrower
shall not constitute a Change of Control so long as the Sponsor
directly or indirectly maintains at least 50.1% of the voting
interests in the Borrowers.
(b) Section 8.1.18 is hereby deleted in its entirety and replaced with
the following:
8.1.18 Paper Sludge Shortfall. The Abitibi mill shall for any
reason have ceased delivery of paper sludge to the Project in an
amount at least equal to 250 bone-dry tons per day, for a period of 45
days, or Abitibi has announced that it intends such cessation, and
Borrowers shall not have in place at the Site or available from
counterparties under contracts a fuel supply stockpile such that (a)
during the first year after such moment (i.e., after either the end of
such 45-day period or the end of the 45-day period following the time
of Abitibi's announcement, as applicable), would allow the Project to
continue operating without paper sludge at a capacity of 24.5 MW for
400 days and (b) from and after the first anniversary of such moment,
would allow the Project to continue operating without paper sludge at
a capacity of 24.5 MW for 800 days (the amount of fuel described in
clause (a) or clause (b), as applicable, the "Alternative Fuel
Stockpile").
(c) The Fuel Stockpile definition in Exhibit A to Credit Agreement is
hereby deleted in its entirety and replaced with the following:
"Fuel Stockpile" means a 2.5-year availability of fuel (other
than paper sludge) either on the Site or available from counterparties
on contractual terms reasonably acceptable to the Administrative
Agent, provided that at least a 1-year stockpile of such 2.5-year
availability of fuel (other than paper sludge) shall be on the Site at
all times and provided further that such 2.5-year availability of fuel
(other than paper sludge) shall be determined assuming that (a) the
Project generates at 24.5 MW and at a 92% capacity factor and (b)
Abitibi supplies paper sludge at a rate of 250 bone-dry tons per day.
(d) Exhibit A to Credit Agreement is hereby amended to add the
following definitions:
"Renegy Holdings" has the meaning given in Section 8.1.11.
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"Transaction" has the meaning given in Section 8.1.11.
4. Representations and Warranties. The Borrowers represent and warrant to
the Administrative Agent and the undersigned Lender(s) as follows:
(a) The representations and warranties made by the Borrowers in
Article 4 of the Credit Agreement and each other Credit Document are true
and correct in all material respects on and as of the date hereof, except
to the extent such representations and warranties expressly relate to an
earlier date.
(b) Other than as addressed herein, no Default or Event of Default has
occurred and is continuing.
(c) No Material Adverse Effect has occurred and is continuing.
5. Effect of Amendment. On and after the date of this Amendment, each
reference in the Credit Documents to the Credit Agreement shall mean the Credit
Agreement as amended hereby and as heretofore amended. Except as specifically
amended above, the Credit Agreement shall remain in full force and effect and is
hereby ratified and confirmed. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Administrative Agent.
6. Headings. The headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
7. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without reference to rules of
conflicts of laws (other than Section 5-1401 of the New York General Obligations
Law).
8. Enforceability. Should any one or more of the provisions of this
Amendment be determined to be illegal or unenforceable as to one or more of the
parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
9. Counterparts. This Amendment may be executed in multiple originals and
by counterpart.
[Signature Page Follows]
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IN WITNESS HEREOF, the parties have caused this Second Amendment to Credit
Agreement to be duly executed by their officers duly authorized as of the date
first above written.
SNOWFLAKE WHITE MOUNTAIN POWER, LLC,
as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Manager
RENEGY, LLC,
as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
RENEGY TRUCKING, LLC,
as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Manager
COBANK, ACB,
as Administrative Agent and a Lender
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director, Energy
Services, Communications and
Energy Banking Group
Exhibit A
Lease Amendment
