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