FOURTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT
FOURTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this “Agreement”) is entered
into as of March 28, 2008 in connection with that certain 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 (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, the Borrowers are unable to provide their audited financial statements for the fiscal
year ending December 31, 2007 on or prior to March 31, 2008 but are able to deliver such financial
statements on or prior to May 31, 2008;
WHEREAS, the Borrowers have agreed to certain change orders with various construction
contractors totaling $13,308,384.53 (the “Change Orders”), the details of which are
attached as Exhibit A hereto;
WHEREAS, the Borrowers have updated the Project Budget, attached hereto as Exhibit
G-2, to reflect the Change Orders and other updates since the last approved Project Budget; and
WHEREAS, the Borrowers have requested that the Required 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. Consent. The Administrative Agent and undersigned Lender(s) hereby:
(a) consent to and approve of the Change Orders described in Exhibit A hereto,
as required under Section 6.12.2(a) of the Credit Agreement; and
(b) consent to and approve the Project Budget attached as Exhibit G-2 hereto.
2. Waiver. The Administrative Agent and undersigned Lender(s) hereby:
(a) waive any Default or Event of Default under the Credit Agreement, including without
limitation Sections 5.5.1(a) and 8.1.5(a) thereto, solely with respect to the Borrowers’
failure to deliver their audited annual financial statements within 90 days after the close
of the fiscal year ending on December 31, 2007;
(b) waive any Default or Event of Default under the Credit Agreement, including without
limitation, Sections 5.4.9 and 6.12.2(a) thereto, solely with respect to the Change Orders
described in Exhibit A hereto;
(c) waive any Default or Event of Default under the Credit Agreement, including without
limitation, Section 6.19 thereto, solely with respect to the Project Budget attached as
Exhibit G-2 hereto; and
(d) waive any Default or Event of Default under the Credit Agreement, including without
limitation, Sections 5.4.8, 6.12.1 and 6.18 thereto, solely with respect to the transactions
described in Paragraph 1(c) above.
3. Amendments. The Credit Agreement is hereby amended as follows:
(a) Article 5 of the Credit Agreement is hereby amended to add the following Section
5.24:
5.24 Renegy Revenues and Costs. Borrowers shall deliver or cause
to be delivered to Administrative Agent, in form and detail reasonably
satisfactory to Administrative Agent as soon as practicable and in any event
within 30 days after the end of each month, reconciliation reports that
detail inflows and outflows from Renegy.
(b) Section 7.1(a) of the Credit Agreement is hereby amended to add “(not to include
any Renegy Fuel Business Revenues)” after “Project Revenues”.
(c) Section 7.1(c) of the Credit Agreement is hereby amended to add “(not to include
any Renegy Fuel Business Costs)” after “O&M Costs”.
(d) Section 7.2(a) of the Credit Agreement is hereby amended to add “(not to include
any Renegy Fuel Business Revenues)” after “Project Revenues”.
(e) Section 7.1(b)(1) of the Credit Agreement is hereby amended to add “(not to include
any Renegy Fuel Business Costs)” after “O&M Costs”.
(f) Section 7.1(c) of the Credit Agreement is hereby amended to add “(not to include
any Renegy Fuel Business Costs)” after “O&M Costs”.
(g) Exhibit A to the Credit Agreement is hereby amended to replace the definition of
“Date Certain” with the following definition:
“Date Certain” means June 30, 2008.
(h) Exhibit A to the Credit Agreement is hereby amended to add the following
definitions:
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“Renegy Fuel Business Revenues” means, without duplication, all income and cash
receipts of Renegy derived from or in connection with the operation of its lumber, wood and wood
products business.
“Renegy Fuel Business Costs” means, for any period, cash amounts incurred and paid by
Renegy for the operation and maintenance of its lumber, wood and wood products business and for the
purchase of goods and services in connection therewith.
(i) In order to reflect the Change Orders and other updates since the last approved
Project Budget, Exhibit G-2 to the Credit Agreement is hereby amended, restated and replaced
in its entirety with Exhibit G-2 to this Agreement.
(j) In connection with the extension of the Date Certain and its effect on the
Construction Loan Maturity Date, Exhibit I-1 to the Credit Agreement is hereby amended,
restated and replaced in its entirety with Exhibit I-1 to this Agreement.
(k) In connection with the extension of the Date Certain and its effect on the
Construction Loan Maturity Date, Exhibit I-2 to the Credit Agreement is hereby amended,
restated and replaced in its entirety with Exhibit I-2 to this Agreement.
4. Conditions. The waiver in Paragraph 2(a) above is conditioned upon the
Administrative Agent’s receipt of the Borrowers’ audited annual financial statements for the year
ending December 31, 2007 on or prior to May 31, 2008.
5. 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.
6. Effect of Agreement. This Agreement, together with each exhibit referred and
attached hereto, constitutes the entire and only understanding and agreement among the parties, and
supersedes all proposals, oral or written, all negotiations, conversations or discussions among the
parties, with respect to the subject matter hereof. The execution, delivery and effectiveness of
this Agreement shall not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Administrative Agent.
7. Headings. The headings in this Agreement are for convenience of reference only and
are not part of the substance hereof.
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8. Governing Law. This Agreement 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).
9. Enforceability. Should any one or more of the provisions of this Agreement 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.
10. Counterparts. This Agreement may be executed in multiple originals and by
counterpart.
[Signature Page Follows]
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IN WITNESS HEREOF, the parties have caused this Agreement to be duly executed by their
officers duly authorized as of the date first above written.
| SNOWFLAKE WHITE MOUNTAIN POWER, LLC, as Borrower |
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| By: | /s/ Xxxxxx X. Xxxxxxx
Manager |
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| RENEGY, LLC, as Borrower |
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| By: | /s/ Xxxxxx X. Xxxxxxx
Manager |
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| RENEGY TRUCKING, LLC, as Borrower |
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| By: | /s/ Xxxxxx X. Xxxxxxx
Manager |
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| COBANK, ACB, as Administrative Agent and a Lender |
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| By: | /s/ Xxxx Xxxxx
Vice President, Energy Services Group |
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