Exhibit 10.15
EXECUTION VERSION
FIFTH AMENDMENT TO CREDIT
AGREEMENT AND FIRST AMENDMENT TO COMPLETION
GUARANTY
This FIFTH AMENDMENT TO CREDIT
AGREEMENT AND FIRST AMENDMENT TO COMPLETION GUARANTY (this “
Agreement ”), dated as of OCTOBER 31, 2008, is by and
among NOVA BIOFUELS SENECA, LLC, a Delaware limited liability
company (“ Borrower ”), NOVA BIOSOURCE FUELS,
INC, a Nevada Corporation (“ Guarantor ”), 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 ”);
WHEREAS , the Borrower, Nova Biosource Fuels, Inc.
and WestLB AG New York Branch have entered into certain Completion
Guaranty, dated February 22, 2008 (the “ Completion
Guaranty ”);
WHEREAS , the Parties wish to amend certain of the terms
in the Credit Agreement, as amended, and the Completion
Guaranty;
WHEREAS , the Borrower has requested the waiver of any
Default or Event of Default that might arise as a result of late
payment of interest with respect to the October 31, 2008
Quarterly Payment Date; and
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 or the Completion
Guaranty, as applicable.
2.
AMENDMENTS TO THE CREDIT
AGREEMENT
2.1
Section 3.01 ( Repayment
of Construction Loan Fundings ) of the Credit Agreement is hereby amended as
follows (new text in bold and underlined, and deleted text stricken
out):
“ Repayment of Construction
Loan Fundings . (a) The Borrower unconditionally and
irrevocably promises to pay to the Administrative Agent for the
ratable account of each Construction/Term Lender the aggregate
outstanding principal amount of the Construction Loans in
accordance with this Section 3.01 .
(b)
The Construction Loans shall be
repaid in full on the Conversion Date with the proceeds of the Term
Loans or, if earlier, on the Conversion Date Certain in accordance
with Section 3.01(d) .
(c)
If the Conversion Date does not
occur on or prior to the Initial Quarterly Payment Date, then,
until the earlier to occur of the Conversion Date and the
Conversion Date Certain, the Borrower unconditionally and
irrevocably promises to pay to the Administrative Agent for the
ratable account of each Construction Lender the aggregate
outstanding principal amount of the Construction Loans, on the
Initial Quarterly Payment Date and on each Quarterly Payment Date
thereafter, in an amount equal to one and one-half percent (1.5%)
of the aggregate total amount of the Construction Loans made on the
Initial Quarterly Payment Date and on each Quarterly Payment Date
thereafter ; provided , however , that
the aggregate principal amount of the Construction Loans otherwise
due and payable on October 31, 2008 shall be deferred and
shall not be payable until November 30, 2008, whereupon it
shall become due and payable to the Administrative Agent for the
ratable account of each Construction Lender in addition to the
aggregate principal amount of Construction Loans or Term Loans
otherwise due and payable on such Quarterly Payment
Date.
(d)
If the Conversion Date does not
occur on or prior to the Conversion Date Certain, then on the
Conversion Date Certain, (i) each outstanding Construction
Loan shall automatically and without further action become due and
payable, (ii) all amounts in any Project Accounts shall be
promptly applied at the written instruction of the Administrative
Agent to 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
Construction Loans to the Administrative Agent, for the pro rata
account of the Lenders (based on their respective Construction Loan
Commitment Percentages), together with any and all Fees and other
Obligations owed to the Senior Secured Parties.”
2.2
Section 8.11(a) (
Warranty Reserve Account ) of the Credit Agreement is hereby amended as
follows (new text bold and underlined):
2
“ Warranty Reserve
Account . (a) On or prior to the Conversion Date,
an amount greater than or equal to the Warranty Reserve Required
Amount, whichever is greater, shall be deposited into the Warranty
Reserve Account from sources other than the Loans or the Required
Equity Contribution (which sources may be as contemplated in
Sections 8.12(a) and 8.12(c) ( Sponsor Support
Account ) , and in the Completion Guaranty);
provided , that notwithstanding the foregoing, in lieu of
cash, the Guarantor may cause to be delivered to the Accounts Bank
one or more Warranty Reserve Letters of Credit, the Stated Amounts
of which shall be credited to the Warranty Reserve Account.
If at any time after the Conversion Date, funds are transferred or
withdrawn from the Warranty Reserve Account or Warranty Reserve
Letters of Credit are drawn down, such that the amounts on deposit
in and standing to the credit of the Warranty Reserve Account fall
below the Warranty Reserve Required Amount, as required pursuant to
the Completion Guaranty, the Guarantor shall, within thirty (30)
days of such transfer or withdrawal, cause additional amounts to be
deposited into the Warranty Reserve Account from sources other than
the Loans or the Re
