Exhibit 10.13
Execution Version
CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT
This CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT (this "Agreement"), dated
as of September 5, 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 Borrower is a party to that certain Development Management
Agreement by and between the Borrower and Biosource America, Inc., effective as
of January 17, 2007 (the "Development Agreement");
WHEREAS, the Parties wish to amend certain of the terms in the Credit Agreement;
and
WHEREAS, the Lenders wish to consent to decisions of the Borrower under the
Development 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
Section 6.02 (Conditions to All Construction Loan Fundings) of the
Credit Agreement is hereby amended as follows:
2.1.1
6.02 (A)(III) IS AMENDED TO READ AS FOLLOWS (NEW TEXT BOLD AND
UNDERLINED):
"ABSOLUTE AND UNCONDITIONAL SWORN LIEN WAIVER STATEMENTS IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE INDEPENDENT ENGINEER
EVIDENCING RECEIPT OF PAYMENT BY EACH CONSTRUCTION CONTRACTOR, ALL
SUBCONTRACTORS, ALL CONTRACTORS PERFORMING THE OWNERS
SCOPE AND ALL OTHER PERSONS WHO WERE PAID FROM THE PROCEEDS OF THE THEN LAST
PRECEDING FUNDING (OTHER THAN LIEN WAIVERS (A) FROM CONTRACTORS WHOSE WORK, ON
AN AGGREGATE BASIS (TAKING INTO ACCOUNT ANY AND ALL CONTRACTS OR AGREEMENTS
PURSUANT TO WHICH SUCH CONTRACTOR HAS PERFORMED WORK RELATING TO THE PROJECT),
ENTITLES THEM TO AGGREGATE PAYMENT OF LESS THAN $100,000 AND (B) FOR WORK IN AN
AGGREGATE TOTAL AMOUNT OF UP TO SEVEN HUNDRED FIFTY THOUSAND DOLLARS
($750,000)); PROVIDED THAT IN THE CASE OF THE INITIAL FUNDING, SUCH LIEN WAIVER
STATEMENTS SHALL EVIDENCE RECEIPT OF ALL PAYMENTS PAID OR DUE AND PAYABLE BY THE
BORROWER TO EACH CONSTRUCTION CONTRACTOR, ALL SUBCONTRACTORS AND ALL OTHER
PERSONS WHO HAVE PERFORMED WORK IN CONNECTION WITH THE PROJECT SINCE THE
COMMENCEMENT OF CONSTRUCTION.
SUCH LIEN WAIVER STATEMENTS SHALL (A) BE DATED ON
OR PRIOR TO THE DATE OF THE FUNDING NOTICE AND (B) COVER ALL WORK DONE AND ALL
SUMS RECEIVED THROUGH THE DATE OF THE THEN LAST PRECEDING FUNDING (OR, IN THE
CASE OF THE INITIAL FUNDING, THE COMMENCEMENT OF CONSTRUCTION).
EACH SUCH LIEN
WAIVER STATEMENT SHALL BE CERTIFIED AS TRUE AND CORRECT AND COMPLETE BY THE
BORROWER TO ITS KNOWLEDGE AND THE APPLICABLE CONTRACTOR AND SHALL BE