NON REVOLVING LINE OF CREDIT PROMISSORY NOTE
FOR VALUE RECEIVED, RENEGY HOLDINGS, INC, a Delaware corporation (the “
Borrower”),
promises to pay to the order of COMERICA BANK (“
Lender”, with Lender and each subsequent
transferee and/or owner of this Non Revolving Line of Credit Promissory Note (the “
NRLC
Note”), whether taking by endorsement or otherwise, being herein successively called
“
Holder”), at Comerica Bank, Phelps Dodge Tower, One North Central Ave., Suite 1000,
10
th Floor,
Phoenix,
Arizona 85004, or at such other place as Holder may from
time-to-time designate in writing, the principal sum of SIX MILLION TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($6,200,000.00), or so much thereof as may be from time-to-time outstanding, together with
interest thereon, to be computed on each Advance thereof from the date of its disbursement, at the
interest rates stated in the Credit Agreement of even date herewith between Borrower, as borrower,
and Lender, as lender, as the same may from time to time be amended, modified, extended, renewed or
restated (the “
Credit Agreement”).
This NRLC Note is issued pursuant to the Credit Agreement and is secured by the Credit
Documents and the Related Documents, including the Guaranty. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
In the event of any conflict between the provisions of this NRLC Note and the provisions of the
Credit Agreement, the provisions of the Credit Agreement shall govern. All notices required or
permitted in connection with this NRLC Note shall be given in the manner provided in the Credit
Agreement for the giving of notices.
All amounts advanced by Lender under this NRLC Note shall be Advances. Advances hereunder
shall be made in accordance with the provisions of the Credit Agreement pertaining to Advances, and
the principal of the indebtedness evidenced hereby, and interest thereon, shall be payable in the
manner and on the dates stated in the Credit Agreement. All principal, interest and other charges
and amounts to be paid hereunder shall be due and payable, in full, on the Maturity Date. Payments
under this NRLC Note shall be applied in the manner provided in the Credit Agreement.
If Borrower fails to make any payment within ten (10) Business Days of the date the same
becomes due and payable under this NRLC Note or the Credit Agreement, Borrower shall pay to Holder,
in addition to all other charges and amounts then due and payable, a late charge equal to 5.00% of
the amount of the overdue payment amount.
Borrower may prepay the indebtedness evidenced by this NRLC Note in accordance with the
provisions of the Credit Agreement.
This NRLC Note evidences a non-revolving line of credit.
Time is of the essence of this NRLC Note.
Borrower shall pay all costs and expenses, including reasonable attorneys’ fees and court
costs, incurred in the collection or enforcement of all or any part of this NRLC Note. All such
costs and expenses shall be secured by the Credit Documents, the Related Documents and the
Collateral Documents, including the Guaranty.
Failure or delay of Holder to exercise any right or remedy hereunder or under the Credit
Agreement with respect to any Default, Event of Default or other circumstance shall not constitute
a waiver of the right to exercise the same with respect to any subsequent Default, Event of Default
or other circumstance or in the event of continuance of any existing Default or Event of Default
after demand for performance hereof.
Borrower: (a) to the maximum extent allowed by applicable law but subject to the terms of the
Credit Agreement, waives any and all formalities in connection with this NRLC Note, including (but
not limited to) demand, diligence, presentment for payment, protest and demand, and notice of
extension, dishonor, protest, demand, maturity, nonperformance and nonpayment; (b) agrees that
Holder may extend the time of payment or otherwise modify the terms of payment of any part or the
whole of the indebtedness evidenced by this NRLC Note, at the request of any person liable thereon,
and that any such extension or modification shall not alter or diminish the liability of any person
hereto; and (c) waives any other exemption rights.
This NRLC Note shall be binding upon each Borrower and its respective successors and assigns,
and shall inure to the benefit of Holder and any subsequent holders of this NRLC Note and their
respective successors and assigns.
This NRLC Note shall be governed by and construed and enforced in accordance with the
substantive laws (other than conflict laws) of the State of Arizona, except to the extent Holder
has greater rights or remedies under Federal law, in which case such choice of Arizona law shall
not be deemed to deprive Holder of any such rights and remedies as may be available under Federal
law. Borrower consents to the personal jurisdiction and venue of the state courts located in
Maricopa County, Arizona in connection with any controversy related to this NRLC Note, waives any
argument that venue in any such forum is not convenient and agrees that, at the option of Holder,
any litigation initiated by any of them in connection with this NRLC Note may be venued in the
Superior Court of Maricopa County, Arizona.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO REQUIRE A TRIAL BY JURY IN ANY COURT ACTION
PERTAINING TO THIS NRLC NOTE, AND AGREES THAT ANY SUCH ACTIONS OR PROCEEDING SHALL BE TRIED BEFORE
A COURT AND NOT BEFORE A JURY.
[SIGNATURE PAGE FOLLOWS]
