Exhibit 10
FIFTH AMENDMENT
AGREEMENT
Synthetic American Fuel
Enterprises II, LLC
This Fifth Amendment Agreement (“ Fifth
Amendment ”) is made and entered into as of June 30,
2005, by and among Synthetic American Fuel Enterprises Holdings,
Inc. (“ Holdings ”), Marriott Hotel Services,
Inc. (“ MHSI ”) and Serratus LLC (“
Buyer ”).
WITNESSETH:
WHEREAS, Holdings, MHSI and Buyer entered into
an Agreement for Purchase of Membership Interest in Synthetic
American Fuel Enterprises II, LLC (the “ Company
”) dated as of January 28, 2003, as amended by Amendment
Agreement dated as of June 20, 2003, Third Amendment Agreement
dated as of October 6, 2004, and Fourth Amendment Agreement dated
as of April 29, 2005 (the “ Purchase Agreement
”);
WHEREAS, Holdings, MHSI and Buyer entered into
an Amended and Restated Limited Liability Company Agreement of the
Company dated as of January 28, 2003, as amended by Amendment
Agreement dated as of June 20, 2003, Second Amendment Agreement
dated as of September 3, 2004, Third Amendment Agreement dated as
of October 6, 2004, and Fourth Amendment Agreement dated as of
April 29, 2005 (the “ LLC Agreement ”);
and
WHEREAS, the parties desire to amend the LLC
Agreement and the Purchase Agreement as provided herein;
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
AMENDMENTS TO LLC
AGREEMENT
Amendments to Section
10.8.
|
(a)
|
Section 10.8(a)
of the LLC Agreement is deleted in its entirely and replaced with
the following:
|
“(a) (i) Upon the occurrence
of a Tax Event (other than a Tax Event described in the last
sentence of the definition of “Tax Event”), (ii) upon
the exercise by Buyer of its right to defer payments for low volume
pursuant to Section 2.6 of the Purchase Agreement for the fourth
time (the “ Fourth Deferral ”), (iii) on
November 30, 2005, or December 31, 2005 (each, a “ Put
Date ”), (iv) upon the occurrence of a Tax Event
described in the last sentence of the definition of “Tax
Event,” or (v) upon the issuance by the IRS at any time prior
to November 30, 2005, of a Form 1787, “Notice of Beginning of
Administrative Proceeding,” (or issuance by the IRS of a
notice having similar effect) with respect to the Company for tax
years ending after March 31, 2001 (an “ Audit Event
”), Buyer shall have the option, exercisable by delivery of
written notice thereof to the Company within 60 days of such Tax
Eve
