Exhibit 10.1


 


FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT


 


THIS FIRST AMENDMENT TO PURCHASE AND SALE
AGREEMENT (this “Amendment”) is made as of May 18, 2006, by and between CATALYTICA
ENERGY SYSTEMS, INC., a Delaware corporation (“Seller”), and WILSHIRE
PROPERTY COMPANY, LLC, a California limited liability company (“Buyer”).


 


RECITALS:


 


A.            Seller
and Buyer entered into the Purchase and Sale Agreement dated April 18, 2006,
with respect to the sale and purchase of the real property (the “Property”)
located at 1388 North Tech Boulevard, Gilbert, Arizona (the “Purchase
Agreement”).


 


B.            All
capitalized terms used in this Amendment shall have the meanings given to them
in the Purchase Agreement, as amended hereby, unless otherwise defined herein.


 


C.            Seller and
Buyer desire to amend the Purchase Agreement on the terms and conditions set
forth in this Amendment.


 


AGREEMENT:


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereby amend the Purchase Agreement on the terms set
forth in this Amendment, notwithstanding anything to the contrary contained
therein.


 


1.             The Closing Date.
The “Closing” and “Closing Date” as
contemplated in Section 2 of the Purchase Agreement shall be July 21, 2006.


 


2.             Purchase
Price. Section 5 is deleted in its entirety and replaced with the following
language:


 


Purchase Price. The total purchase price (the “Purchase
Price”) to be paid for the Property shall be FOUR MILLION SEVEN HUNDRED
SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($4,775,000.00) and shall be payable
to Seller at the Closing in cash. All Earnest Money shall be applied against
the Purchase Price at the Closing.


 


3.             Condition Precedent. The phrase “It shall be a condition
precedent to Seller’s obligations to consummate the transaction contemplated by
this Agreement that Seller obtain a full and complete release and discharge
from the Loan and Loan Documents, all in a manner acceptable to Seller, and” contained in Section 10 of the Purchase
Agreement is hereby deleted from the Purchase Agreement.


 


4.             Additional Cash Payment.
Section 18(f) of the Purchase Agreement is deleted in its entirety and replaced
with the following language:


 


“At the Closing, Buyer
shall pay to Seller, in addition to the Purchase Price, an amount equal to $40,000.00
(the “Additional Cash Payment”).


 


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5.             The
Feasibility
Period. The Feasibility Period described in Section 9 shall be deemed ended
and the earnest money deposit is nonrefundable. Subsection 28(a) of the
Purchase Agreement is deleted in its entirety.


 


6.             Purchase
of Personal Property. Pursuant to Section 28(c) of the Purchase Agreement,
Buyer hereby elects to purchase Seller’s personal property located on the
Property “AS IS” for an amount equal to $25,000.00.


 


7.             New Lease. The commencement date for the New Lease shall be the Closing Date.


 


8.             No
Breach or Default. To Seller’s and Buyer’s actual knowledge and belief,
neither Seller nor Buyer is in default and neither has breached any of Buyer’s
or Seller’s respective duties and obligations under the Purchase Agreement.


 


9.             Ratified
and Confirmed. Except as modified by this Amendment, the Purchase Agreement
and all the terms, covenants, conditions and agreements thereof are hereby in
all respects ratified, confirmed and approved, and shall remain unchanged and
shall continue in full force and effect.


 


10.           Entire
Understanding. This Amendment contains the entire understanding between the
parties with respect to the matters contained herein.


 


11.           Counterparts.
This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original and all, when taken together, shall
constitute one and the same instrument. A facsimile or similar transmission of
a counterpart signed by a party hereto shall be regarded as signed by such
party for purposes hereof.


 


IN
WITNESS WHEREOF, Seller and Buyer have executed and delivered this Amendment as
of the date and year first above written.


 


	
  SELLER:

  	
   

  	
  BUYER:

  
	
   

  	
   

  	
   

  
	
  CATALYTICA
  ENERGY SYSTEMS, INC., a 

  	
   

  	
  WILSHIRE
  PROPERTY COMPANY, LLC, a 

  
	
  Delaware
  corporation

  	
   

  	
  California
  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Rob Zack

  	
   

  	
   

  	
  By:

  	
  /s/
  John Ghiselli

  	
   

  
	
  Name:
  

  	
  Rob
  Zack

  	
   

  	
   

  	
  Name:

  	
  John Ghiselli  

  	
   

  
	
  Title:
  

  	
  CEO

  	
   

  	
   

  	
  Title:

  	
  Managing
  Member

  	
   

  
														



 


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