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
