exv10w14






Exhibit 10.14




THIRD MODIFICATION TO CREDIT AGREEMENT

WITH MODIFICATIONS TO THE

NON REVOLVING LINE OF CREDIT PROMISSORY NOTE




(Renegy Holdings, Inc., Credit Agreement dated March 28, 2008)




     THIS THIRD MODIFICATION AGREEMENT (this “Agreement”) is entered into as of December 31, 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.



PRELIMINARY STATEMENTS




     A. Lender has extended to Borrower a non revolving line of credit facility in the principal
amount not to exceed $6,500,000.00 (the “NRLC”), pursuant to the terms and conditions set forth in
the Credit Agreement dated March 28, 2008, as modified by that First Modification to Credit
Agreement with Modifications to the Cash Collateral Account Agreement dated November 14, 2008 by
and between Borrower and Lender, and as further modified by that Second Modification to Credit
Agreement with Modifications to the Non Revolving Line of Credit Promissory Note dated November 26,
2008 by and between Borrower and Lender (collectively 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”). 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). Capitalized terms not otherwise defined herein shall have the meaning
ascribed to such capitalized terms in the Credit Agreement.



     B. The Credit Parties have requested that Lender agree to temporarily increase the Maximum
NRLC Loan Amount under the Credit Agreement from $6,500,000 to $7,250,000 for the period beginning
on December 30, 2008 and ending on February 15, 2009.



 









 





     C. The Credit Parties have requested that Lender agree to extend the suspension of the minimum
liquidity requirement set forth in Section 9.23 of the Credit Agreement until February 15, 2009.



     D. Lender is willing to agree to such requests on the terms and conditions set forth in this
Agreement.



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:




	 	A.	 	Recital A(1) is hereby restated in its entirety as follows:






“(1) A non revolving line of credit facility (the “NRLC”) in the principal
amount of not to exceed SIX MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($6,500,000.00) for the purpose of funding costs over-run associated with the
Snowflake White Mountain Power Plant, Borrower’s working capital and other general
corporate uses. For the period beginning on December 30, 2008 and ending on
February 15, 2009 the principal amount shall not exceed SEVEN MILLION TWO HUNDRED
FIFTY THOUSAND AND NO/100 DOLLARS ($7,250,000.00), thereafter the principal amount
of the NRLC shall not exceed the principal amount set forth the first sentence of
this paragraph.”




	 	B.	 	Section 1.1, the definition of “Maximum NRLC Loan Amount” is deleted
and replaced in its entirety with the following:






“Maximum NRLC Loan Amount” means Six Million Five Hundred Thousand and
NO/100 Dollars ($6,500,000.00), provided that the Maximum NRLC Loan Amount shall
be increased to Seven Million Two Hundred Fifty Thousand and No/100 Dollars
($7,250,000.00) for the period beginning on December 30, 2008 and ending on
February 15, 2009, and thereafter the Maximum NRLC Loan Amount shall be Six
Million Five Hundred Thousand and NO/100 Dollars ($6,500,000.00).”




	 	C.	 	Section 9.23, the last sentence of the paragraph is deleted and
replaced in its entirety with the following:






The minimum liquidity requirement set forth under this Section 9.23 shall
be suspended for the period of time beginning September 30, 2008 and ending on
February 15, 2009 after which time all provisions of this Section 9.23
shall be in full force and effect.



     2. The Non Revolving Line of Credit Promissory Note is hereby modified as follows:



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A. By deleting all references to “$6,500,000” and replacing same with “$7,250,000”.




B. By deleting all references to “Six Million Five Hundred Thousand” and replacing same
with “Seven Million Two Hundred Fifty Thousand”.



     3. Conditions Precedent. Lender’s covenants and obligations under this Agreement and
the effectiveness of this Agreement are expressly conditioned upon:




     A. Execution and delivery of this Agreement by the Credit Parties;




     B. Credit Parties’ execution and delivery of such other documents and instruments as
Lender may require in connection with the transactions contemplated hereby, including,
without limitation, certificates and resolutions, incumbency certificates, modifications of
mortgages, deeds of trust, and other security instruments.




     C. Each representation and warranty set forth in this Agreement and in the Loan
Documents shall be true and correct as of the date of execution and delivery of this
Agreement by the Borrower.




     D. Borrower’s delivery of the $7,500.00 fee to Lender in consideration for Lender
temporarily increasing the Maximum NRLC Loan Amount.




     E. Borrower’s delivery of the $2,500.00 fee to the Lender in consideration for Lender
extending the suspension of the minimum liquidity requirement under Section 9.23 of the
Credit Agreement to February 15, 2009.




     F. No Event of Default shall have occurred and be continuing under the Loan Documents
as of the date hereof.



     4. Representations and Warranties of Borrower and Guarantors. Each Credit Party
represents and warrants to Lender as of the date of this Agreement as follows: (a) Each entity of
Borrower is duly organized, validly existing and in good standing under the laws of its state of
formation with all power and authority necessary to own, lease and operate Borrower’s properties
and carry on its business as now conducted and to execute, deliver and perform this Agreement; (b)
all necessary action has been taken on its part to authorize the execution, delivery and
performance of this Agreement and this Agreement has been duly executed and delivered by each
Credit Party; (c) there are no suits, actions, proceedings or investigations pending or, to the
best of each Credit Party’s knowledge, threatened against or involving it before any court,
arbitrator or administrative or governmental body which might reasonably result in a material
adverse change in its contemplated business, condition, worth or operations; (d) the authorization,
execution, delivery and performance of this Agreement will not result in any breach or default
under any other document, instrument or agreement to which any Credit Party is a party or by which
it is subject or bound; (e) the authorization, execution, delivery and performance of this
Agreement will not violate any applicable law, statute, regulation, rule, ordinance, code or order;
(f) this Agreement and each of the Loan Documents constitutes the legal, valid and binding
obligation of each Credit Party, enforceable against each Credit Party in accordance with its
terms; (g) each lien and security interest on the Collateral continues to be duly and properly
perfected and constitutes a first priority lien; (h) no consent, license, permit,



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approval or authorization of any person, entity or governmental authority is required in
connection with its execution, delivery and performance of this Agreement; (i) the representations
and warranties made by each Credit Party in each of the Credit Documents to which it is a party are
true and correct as of the date of the execution and delivery of this Agreement by such Credit
Party. All representations and warranties of each of Borrower and Guarantors made in this
Agreement shall survive the execution and delivery of this Agreement.



     5. Releases. In further consideration of the Lender’s execution of this Agreement,
each Credit Party hereby releases Lender and Lender’s respective participants, affiliates,
officers, shareholders, employees, directors, agents, advisors and attorneys (collectively, the
“Releasees”) from any and all claims, demands, liabilities, responsibilities, disputes,
causes of action (whether at law or equity) and obligations of every nature whatsoever, whether
liquidated or unliquidated, known or unknown, matured or unmatured, fixed or contingent that such
Credit Party may have against Releasees or any of them which arise or relate to this Agreement, the
obligations, any Collateral, any Loan Document, any documents, agreements, dealings or other
matters in connection with any of the Loan Documents and any third parties liable in whole or in
part for any of the obligations under the Loan Documents or this Agreement, in each case to the
extent arising (a) on or prior to the date hereof or (b) out of, or relating to, actions, dealings
or matters occurring on or prior to the date hereof (including, without limitation, any actions or
inactions which Releasees or any of them may have taken prior to the date hereof).



     6. Indemnity. Each Credit Party, jointly and severally, shall indemnify, defend and
hold the Releasees harmless for, from and against any and all claims, causes of action, losses,
damages, awards, settlements, penalties, judgments, costs and expenses (including, without
limitation, reasonable attorneys’ fees) (collectively, “Losses”) (excluding Losses suffered
by a Releasee directly arising out of such Releasee’s gross negligence or willful misconduct) with
respect to, or resulting from, or in connection with this Agreement, the Loan, the Loan Documents
or the transactions contemplated thereby. This Section 4 shall survive the execution and
delivery of this Agreement.



     7. Amendments. No termination or waiver of any provision of this Agreement, or the
consent to any departure by the Credit Parties therefrom, shall in any way be effective without the
written concurrence of Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice or demand upon the
Borrower or any Guarantor in any case shall entitle any Credit Party to any further notice or
demand in similar or other circumstances. The Lender’s failure at any time or times hereafter to
require strict performance by the Credit Parties of any provision or term of this Agreement shall
not waive, effect or diminish any rights of Lender thereafter to demand strict performance in
compliance herewith. Any suspension or waiver by Lender of a default, or forbearance with respect
thereto, pursuant to this Agreement or with respect to any Event of Default under the Loan
Documents shall not, except as may be expressly set forth herein, suspend, waive, effect or be a
forbearance with respect to, any other default or event of default, whether the same is prior or
subsequent thereto and whether of the same or of a different kind or character. None of the
undertakings, agreements, warranties, covenants and representations of the Lender contained in this
Agreement shall waive, effect or diminish the rights of the Lender under this Agreement or any
other Loan Document. None of the undertakings, agreements, warranties, covenants and
representations of the Credit Parties contained in this Agreement or any other Loan Document



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and no default or event of default under this Agreement or any other Loan Document shall be
deemed to have been suspended or waived by the Lender unless such suspension or waiver is (a) in a
subsequent writing signed by the Lender and (b) delivered to the Borrower.



     8. Relationship Between the Parties. The relationship of the Lender on the one hand,
and the Credit Parties, and each of them, on the other hand has been and shall continue to be, at
all times, that of creditor and debtor. Nothing contained in this Agreement, any instrument,
document or agreement delivered in connection therewith or in the Credit Agreement or any of the
other Loan Documents shall be deemed or construed to create a fiduciary relationship among the
parties.



     9. Notices. All communications and notices to the Lender hereunder shall be given as
provided in the Loan Documents.



     10. No Assignment. This Agreement shall not be assignable by the Borrower or any
other Credit Party without the written consent of the Lender. The Lender may assign to one or more
persons all or any part of, or any participation in, the Lender’s rights and benefits hereunder.



     11. TIME OF THE ESSENCE. TIME IS STRICTLY OF THE ESSENCE OF THIS AGREEMENT AND FULL
AND COMPLETE PERFORMANCE OF EACH AND EVERY PROVISION HEREOF.



     12. Miscellaneous. Each of the Credit Parties agrees to sign such other and further
documents, and to take such other actions, as may be reasonably appropriate to carry out the
intentions expressed in this Agreement, including, without limitation, documentation in respect of
the reaffirmation and confirmation of liens, and the priority of such liens, on the collateral for
the NRLC. This Agreement may be executed in one or more counterparts, each of which shall be deemed
an original. This Agreement shall be binding upon and inure to the benefit of the parties and their
successors and permitted assigns, including, without limitation, any United States trustee, any
debtor-in-possession or any trustee appointed from a private panel. This Agreement, the Loan
Documents and any other instruments referred to herein, constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, of the parties or any of them with respect to the subject
matter hereof, if any. This Agreement shall be governed by the laws of the State of Arizona,
without giving effect to its principles of conflicts of law. EACH CREDIT PARTY AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY
ANY OF THE PARTIES HERETO AGAINST ANY OF THE OTHERS OR THEIR SUCCESSORS WITH RESPECT TO ANY MATTER
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED
HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN
NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, EACH OF THE CREDIT PARTIES
AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY



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MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER PARTY
AND ANY OF THE AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OF THE OTHER PARTY OR ANY OF THE OTHER
PARTY’S SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY OR ANY OF THE AFFILIATES, OFFICERS,
DIRECTORS OR EMPLOYEES OF ANY OTHER PARTY OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY MATTER
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED
HERETO. THE WAIVER BY THE CREDIT PARTIES OF ANY RIGHT THEY MAY HAVE TO SEEK PUNITIVE,
CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN.



     13. Ratification. To the extent that the terms of this Agreement and are in conflict
with the Loan Documents, this Agreement shall govern. All other provisions of the Loan Documents
shall remain in full force and effect and are incorporated herein by reference.



[Signature Pages Follow]




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     IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set
forth above.



	 	 	 	 	 
	 	BORROWER:





RENEGY HOLDINGS, INC., a Delaware corporation

 	 
	 	By:  	/s/ Robert M. Worsley
 	 
	 	 	Name:  	Robert M. Worsley 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	LENDER:





COMERICA BANK, a Texas banking corporation

 	 
	 	By:  	/s/ Matthew E. James
 	 
	 	 	Name:  	Matthew E. James 	 
	 	 	Title:  	Corporate Banking Officer 	 



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JOINDER





     Each of the undersigned, as a guarantor of the Borrowers’ obligations to the Lender under the
Credit Agreement, hereby (i) acknowledges and consents to the foregoing Agreement, (ii) reaffirms
its obligations under its respective guaranty in favor of the Lender and under any agreement under
which it has granted to the Lender a lien or security interest in any of its real or personal
property, and (iii) confirms that such guaranty and other agreements (if any) remain in full force
and effect, without defense, offset, or counterclaim. (Capitalized terms used herein shall have
the meanings specified in the foregoing Amendment.) This Joinder may be executed in counterparts,
each of which when so executed shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.



	 	 	 	 	 
	 	GUARANTOR:

 	 
	 	/s/ Robert M. Worsley
 	 
	 	Robert Merrill Worsley 	 
	 
	 	 	 
	 	                                              /s/ Christi M. Worsley
 	 
	 	Christi Marie Worsley 	 
	 
	 
	 	The Robert Merrill Worsley and Christi Marie Worsley
Family Revocable Trust, dated July 28, 1998

 	 
	 	By:  	/s/ Robert M. Worsley
 	 
	 	 	Name:  	Robert Merrill Worsley 	 
	 	 	Title:  	Trustee 	 
	 
	 	 	 
	 	By:  	                    Christi M. Worsley
 	 
	 	 	Name:  	Christi Marie Worsley 	 
	 	 	Title:  	Trustee 	 



 









 







	 	 	 	 	 
	 	NEW MEXICO & ARIZONA LAND COMPANY, LLC, an Arizona
limited liability company

 	 
	 	By:  	 NZ Legacy, LLC, an Arizona limited liability company, as the sole member
 	 
	 
	 	 	 
	 	By:  	                      /s/ Robert M. Worsley
 	 
	 	 	Name:  	Robert M. Worsley 	 
	 	 	Title:  	Manager 	 
	 
	 	NZ LEGACY, LLC, an Arizona limited liability company

 	 
	 	By:  	/s/ Robert M. Worsley
 	 
	 	 	Name:  	Robert M. Worsley 	 
	 	 	Its:   	Manager