Exhibit 10.1


 


FIRST AMENDMENT TO CREDIT AGREEMENT


 


This FIRST
AMENDMENT TO CREDIT AGREEMENT (this “Agreement”), dated as of February 22,
2008, is by and among NOVA BIOFUELS SENECA, LLC, a Delaware limited liability
company (“Borrower”), each of the Lenders party hereto, WESTLB AG, NEW
YORK BRANCH, as administrative agent for the Lenders, WESTLB AG, NEW YORK
BRANCH, as collateral agent for the Senior Secured Parties, and STERLING BANK,
a Texas banking corporation, as accounts bank.


 


PREAMBLE


 


WHEREAS,
the Parties have entered into that certain Credit Agreement dated as of December 26,
2007 (as amended, the “Credit Agreement”); and


 


WHEREAS,
the Parties wish to amend certain of the terms in the Credit Agreement;


 


NOW,
THEREFORE, in consideration of the mutual benefits to
be derived and the representations and warranties, conditions and promises
herein contained, and intending to be legally bound hereby, the Parties hereby
agree as follows:


 


1.                                      DEFINITIONS AND INTERPRETATION


 


Unless otherwise expressly set forth herein,
capitalized terms used in this Agreement shall have the meaning set forth in
the Credit Agreement.


 


2.                                      AMENDMENTS


 


2.1           Reimbursement
of Excess Equity Contributions


 


2.1.1                        Section 2.01(b) –
(Construction Loans) of the Credit
Agreement is hereby replaced in its entirety with the following:


 


“(b) Proceeds of each Construction Loan shall be deposited into
the Construction Account and used solely for the payment of Project Costs,
except to the extent that proceeds of such Construction Loan:


 


(i)            are applied
directly to Debt Service;


 


(ii)           are otherwise
applied in accordance with Section 2.05(e)(i) (Funding of the Loans); and/or


 


(iii)          are transferred to
the Sponsor (or as otherwise specified in the applicable Funding Notice) in an
amount up to the difference between (x) the aggregate total amount of all
equity contributed by the Sponsor to the Borrower and applied towards Project
Costs, as confirmed by the Independent Engineer in an Independent 


 





















 


Engineer’s Certificate, minus (y) the Required Equity Contribution
(any such amount, a “Sponsor Equity Reimbursement”);


 


and in all such cases, Construction Loan proceeds shall be applied
solely in accordance with this Agreement.”


 


2.1.2                        Section 7.01(g)(i) (Affirmative Covenants – Use of Proceeds and Cash Flow)
of the Credit Agreement is hereby amended by adding the following at the end of
the first sentence thereof:



“or for Sponsor Equity Reimbursement.”


 


2.1.3                        The first sentence of Section 7.02(r) (Negative Covenants – Restricted Payments) of the Credit
Agreement is hereby replaced in its entirety with the following (new text bold
and underlined):


 


“(r) Restricted Payments. Except as otherwise permitted
under Section 2.05(e) (Funding of Loans)
and Section 2.01(b) (Construction Loans) the Borrower shall not
make any Restricted Payments unless each of the conditions set forth below has
been satisfied:”


 


2.1.4                        Section 8.03(a)(i) (Construction Account) of the Credit Agreement is hereby
replaced in its entirety with the following (new text in bold underline):



“all proceeds of the Construction Loans (except for any Sponsor Equity Reimbursement,
proceeds of Fundings applied directly to the payment of Debt Service or as
otherwise applied on the Conversion Date in accordance with Section 2.05(e) (Funding of Loans));”


 


2.1.5                        Section 8.12(a) –
(Sponsor Support Account) of the
Credit Agreement is hereby amended by adding the following text following the
phrase “other than the Loans”:


 


“(with the exception of any Sponsor Equity Reimbursement deposited
directly into the Sponsor Support Account)”


 


2.1.6                        Exhibit A (Definitions) of the Credit Agreement is hereby amended by
adding the following definition in alphabetical order:


 


““Sponsor Equity Reimbursement” has the meaning provided in Section 2.01(b) (Construction Loans).”


 


2.1.7                        Exhibit A (Definitions) of the Credit Agreement is hereby amended by
deleting the definition “Required Equity Contribution” in its entirety and
replacing it with the below:


 


““Required Equity Contribution” means the equity contributions
to be made to the Borrower on or before the Closing Date for Project Costs in 


 


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the aggregate total amount of forty-two million, eight hundred
fifty-one thousand, eight hundred eighty-two Dollars ($42,851,882); provided
that any amount deposited by the Borrower into the Construction Account on the
Closing Date from its pre-Closing funds for payment of Project Costs shall be
deemed to be an equity contribution.”


 


2.2           ConAgra
Consent Agreement


 


2.2.1                        Section 6.01(b)(ii) of
the Credit Agreement is hereby amended by inserting the following at the end
thereof:



“(except the Biodiesel Marketing Agreement)”


 


2.2.2                        The following is hereby added
as Section 7.01(x) of the Credit Agreement: 



“(x)          Biodiesel Marketing
Agreement Consent and Opinion. 
Within twenty (20) days following the Closing Date, the Borrower shall
cause to be delivered to the Administrative Agent (i) a fully executed
Consent, in form and substance substantially identical to Schedule 7.01(x)(i) (or
with such changes thereto accepted by the Administrative Agent), with respect
to the Biodiesel Marketing Agreement and (ii) a First Amendment to
Biodiesel Marketing Agreement, in form and substance substantially identical to
Schedule 7.01(x)(ii) (or with such changes thereto accepted by the
Administrative Agent), together with an opinion covering customary matters
regarding the due authorization and valid execution of such Consent and First
Amendment to Biodiesel Marketing Agreement by the Borrower, and the
enforceability of such Consent against the Borrower and the Biodiesel Marketer,
from legal counsel, and in form and substance, reasonably satisfactory to the
Administrative Agent.”


 


2.2.3                        Annex A to this Agreement is
hereby attached to the Credit Agreement as Schedule 7.01(x)(i).


 


2.2.4                        Annex B to this Agreement is
hereby attached to the Credit Agreement as Schedule 7.01(x)(ii).


 


2.3           Cash
Collateral for Letters of Credit


 


2.3.1                        Section 2.07(c) (Termination or Reduction of Commitments) is hereby
deleted in its entirety and replaced as follows (new text bold and underlined):


 


“(c)         If the Conversion
Date does not occur on or before the Conversion Date Certain, all Working
Capital Loan Commitments (other than the
obligations to participate in the Issuing Bank’s liability under any Letter of
Credit pursuant to Section 2.08(c) (Letters of
Credit))  shall be 


 


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automatically and permanently terminated on the Conversion Date
Certain.”


 


2.3.2                        Section 2.07(f) (Termination or Reduction of Commitments) is hereby
deleted in its entirety and replaced as follows (new text bold and underlined):


 


“(f)          Any Working Capital
Loan Commitments (other than the
obligations to participate in the Issuing Bank’s liability under any Letter of
Credit pursuant to Section 2.08(c) (Letters of
Credit))  shall be automatically and permanently
terminated in full and the Borrower shall be
required to deposit in the LC Cash Collateral Sub-Account the Aggregate Maximum
Available Amounts under all issued and outstanding Letters of Credit
on the Working Capital Maturity Date.”


 


2.3.3                        Section 3.03(c) –
(Repayment of Working Capital Loan Fundings)
is hereby deleted in its entirety and replaced with the following (new text
bold and underlined; deleted text struck-through):


 


“(c)         If the Conversion
Date does not occur on or prior to the Conversion Date Certain, then on the
Conversion Date Certain, (i) each outstanding Working Capital Loan shall
automatically and without further action become due and payable, (ii) all
amounts in any Project Accounts shall be promptly applied to the Obligations
then outstanding in accordance with Section 9.04 (Application
of Proceeds), and (iii) the Borrower shall pay all accrued interest
on and repay the entire remaining principal amount of all outstanding Working
Capital Loans to the Administrative Agent, for the pro  rata
account of the Lenders (based on their respective Working Capital Loan
Commitment Percentages and (iv) the Borrower
shall be required to deposit in the LC Cash Collateral Sub-Account the
aggregate Maximum Available Amounts under all issued and outstanding Letters of
Credit.”


 


2.3.4                        Section 3.10(c) (Mandatory Prepayment) is hereby deleted in its entirety
and replaced as follows (new text bold and underlined):


 


“(c)         The Borrower shall be
required to prepay the Working Capital Loans if a Borrowing Base Certificate
demonstrates that the then-outstanding principal amount of the Working Capital
Loans plus the aggregate Maximum Available Amounts under
the then-outstanding Letters of Credit exceeds the
then-effective Working Capital Commitment or the Working Capital Loan Available
Amount, within three (3) Business Days following the delivery of such
Borrowing Base Certificate, in the amount of such excess.”


 


2.3.5                        Sections 9.02 and 9.03
of the Credit Agreement are hereby deleted in their entirety and replaced as
follows (new text bold and underlined):


 


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“Section 9.02         Action Upon Bankruptcy.  If any Event of Default described in Section 9.01(i) (Events
of Default – Bankruptcy, Insolvency) occurs with respect to the Borrower, any
outstanding Construction Loan Commitments, Term Loan Commitments or Working
Capital Loan Commitments (other than the
obligations to participate in the Issuing Bank’s liability under any Letter of
Credit pursuant to Section 2.08(c) (Letters of
Credit)) (if not theretofore terminated) shall
automatically terminate.  The outstanding
principal amount of the outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, and the
Borrower shall be required to immediately deposit in the LC Cash Collateral
Sub-Account the aggregate Maximum Available Amounts under all issued and
outstanding Letters of Credit, without notice, demand or further
act of the Administrative Agent, the Collateral Agent or any other Senior
Secured Party.


 


Section 9.03           Action Upon Other Event of Default.  (a)  If any other Event of Default
occurs and is continuing for any reason, whether voluntary or involuntary, and
is continuing, the Administrative Agent may, or upon the direction of the
Required Lenders shall, by written notice to the Borrower, declare all or any
portion of the outstanding principal amount of the Loans and other Obligations
to be due and payable and/or any outstanding Construction Loan Commitments,
Term Loan Commitments or Working Capital Loan Commitments (other
than the obligations to participate in the Issuing Bank’s liability under any
Letter of Credit pursuant to Section 2.08(c) (Letters of
Credit)) (if not theretofore terminated) to be
terminated, and/or the aggregate Maximum Available
Amounts under all issued and outstanding Letters of Credit to be deposited into
the LC Cash Collateral Sub-Account, whereupon the full unpaid
amount of such Loans and other Obligations that has been declared due and
payable shall be and become immediately due and payable and the
aggregate Maximum Available Amounts under all issued and outstanding Letters of
Credit shall be deposited into the LC Cash Collateral Sub-Account,
without further notice, demand or presentment and/or, as the case may be, any
outstanding Construction Loan Commitments, or Term Loan Commitments or Working Capital Loan Commitments (other than
the obligations to participate in the Issuing Bank’s liability under any Letter
of Credit pursuant to Section 2.09(c) (Letters of
Credit)) shall terminate.  During the continuance of an Event of
Default, the Administrative Agent may, or upon the direction of the Required
Lenders shall, instruct the Collateral Agent to exercise any or all remedies
provided for under this Agreement or the other Financing Documents.”


 


2.3.6                        Section 9.04(d) (Default and Enforcement – Application of Proceeds) of
the Credit Agreement is hereby replaced in its entirety with the following (new
text bold and underlined):


 


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“(d)         fourth,
to the principal amount of the Loans (including for purposes of
cash collateralization of the full amount of any outstanding Letters of Credit,
which shall be treated as principal under this priority fourth)
and any Primary Swap Obligations payable by the Borrower to the Lenders and
Interest Rate Protection Providers, ratably among the Lenders, the Issuing Bank (with respect to full cash
collateralization of outstanding Letters of Credit) and the
Interest Rate Protection Providers in proportion to the respective amounts
described in this clause fourth held by them; and”


 


2.3.7                        Section 8.06(a) (Working Capital Reserve Account) of the Credit Agreement
is hereby replaced in its entirety with the following (new text bold and
underlined):


 


“Section 8.06  Working Capital Reserve Account.  (a) Funds shall be deposited into the
Working Capital Reserve Account in accordance with Section 8.04(b)(vi) (Revenue Account), Section 3.09(d)(ii)(B) and
(C) (Optional Prepayments) and Section 3.10(e) (Mandatory Prepayments). 
Amounts deposited into the Working Capital Reserve Account pursuant to Section 2.07(f) (Termination
or Reduction of Commitments), Section 3.03(c) (Repayment of Working Capital Loan Fundings),
priority second of Section 3.09(d)(ii) (Optional Prepayment), and priority third
of Section 3.10(e) (Mandatory Prepayment),  Section 9.02 (Action Upon Bankruptcy), Section 9.03 (Action Upon Other Event of Default) and priority fourth of Section 9.04(d) (Default and
Enforcement – Application of Proceeds) shall be
deposited into the LC Cash Collateral Sub-Account.”


 


2.4           Commitment
Fee


 


2.4.1                        Section 3.13(a) –
(Fees) of the Credit Agreement is
hereby replaced in its entirety with the following (new text bold and
underlined):


 


                “Section 3.13  Fees. 
(a)  From and including the date hereof until the Final
Maturity Date, the Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders, on the Closing Date and
thereafter on each Quarterly Payment Date, a commitment fee (a “Commitment
Fee”) equal to one-half of one percent (0.50%) per annum on the
average daily amount by which (i) the Aggregate Construction Loan
Commitment exceeds the aggregate outstanding principal amount of Construction
Loans and (ii) the Aggregate Working Capital Loan Commitment exceeds the
sum of (x) the aggregate outstanding principal amount of Working Capital
Loans plus (y) the Maximum Available Amounts of all outstanding Letters of
Credit, in each case, during the calendar quarter or portion thereof then ended; provided that the Commitment Fee payable on the
Closing Date shall only include such amounts accrued during the period
commencing on the date hereof and ending January 31, 2008.  All Commitment Fees shall be computed 


 


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on the basis of the actual number of days elapsed in a year of 365 or
366 days, as pro-rated for any partial quarter, as applicable.


 


3.                                      MISCELLANEOUS


 


3.1           Counterparts


 


This Agreement
may be executed in two or more original copies and each such copy may be
executed by each of the Parties in separate counterpart, each of which copies
when executed and delivered by the Parties shall constitute an original, but all
of which shall together constitute one and the same instrument.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or portable document format (“PDF”)
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


3.2           Governing Law


 


This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, United States
of America, without reference to conflicts of laws (other than Section 5-1401
of the New York General Obligations Law).


 


3.3           Limited Purpose; Effect on Credit Agreement


 


3.3.1        Except as expressly amended hereby or otherwise
provided herein, (a) all of the terms and conditions of the Credit
Agreement and all other Financing Documents remain in full force and effect,
and none of such terms and conditions are, or shall be construed as, otherwise
amended or modified, and (b) nothing in this Agreement shall constitute a
waiver by the Lenders of any Default or Event of Default, or shall constitute a
waiver by the Lenders of any right, power or remedy available to the Lenders or
the other Senior Secured Parties under the Financing Documents, whether any
such defaults, rights, powers or remedies presently exist or arise in the
future.


 


3.3.2        The Credit Agreement shall, together with the
amendments set forth herein, be read and construed as a single agreement.  All references in the Credit Agreement and
any related documents, instruments and agreements shall hereafter refer to the
Credit Agreement, as amended hereby.


 


3.4           Effectiveness


 


This Agreement shall become effective, as of
the date first written above, upon the execution of this Agreement by each of
the parties hereto.


 


3.5           Authority, Etc.


 


The execution and delivery by the Borrower of
this Agreement and the performance by the Borrower of all of its agreements and
obligations under the Credit Agreement as amended hereby are within its
organizational authority and have been duly authorized by all necessary
organizational action on the part of, and have been duly and validly executed
by, the Borrower.  


 


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Except as otherwise addressed in this Agreement, the Borrower represents
and warrants that, upon the effectiveness of this Agreement, no Default or
Event of Default has occurred and is continuing as of the date hereof.


 


[The remainder of this page is
intentionally blank.]


 


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IN WITNESS WHEREOF, the Parties have executed and delivered this First
Amendment to Credit Agreement as of the date first above written.


 


 


	
   

  	
  NOVA BIOFUELS SENECA, LLC,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David G. Gullickson

  
	
   

  	
   

  	
  Name: David G. Gullickson

  
	
   

  	
   

  	
  Title:   Vice
  President & Chief Financial Officer

  



 

















 


	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer King

  
	
   

  	
   

  	
  Name: 
  Jennifer King

  
	
   

  	
   

  	
  Title:   
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Vastola

  
	
   

  	
   

  	
  Name: 
  Paul Vastola

  
	
   

  	
   

  	
  Title:   
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Jennifer King

  
	
   

  	
   

  	
  Name: 
  Jennifer King

  
	
   

  	
   

  	
  Title:   
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Vastola

  
	
   

  	
   

  	
  Name: 
  Paul Vastola

  
	
   

  	
   

  	
  Title:   
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer King

  
	
   

  	
   

  	
  Name: 
  Jennifer King

  
	
   

  	
   

  	
  Title:   
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Vastola

  
	
   

  	
   

  	
  Name: 
  Paul Vastola

  
	
   

  	
   

  	
  Title:  
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer King

  
	
   

  	
   

  	
  Name: 
  Jennifer King

  
	
   

  	
   

  	
  Title:   
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Paul Vastola

  
	
   

  	
   

  	
  Name: 
  Paul Vastola

  
	
   

  	
   

  	
  Title:  
  Director

  



 

















 


	
   

  	
  STERLING BANK,

  
	
   

  	
  as Accounts Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Allen D. Brown

  
	
   

  	
   

  	
  Name: 
  Allen D. Brown

  
	
   

  	
   

  	
  Title:   
  Executive Vice President

  



 

















 


Annex A


 


Schedule 7.01(x)(i)


to Credit Agreement


 


See Attached


 

















 


Annex B


 


Schedule 7.01(x)(ii)


to Credit Agreement


 


See Attached