Exhibit 10.2
NINTH AMENDMENT TO CREDIT
AGREEMENT AND FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT
This NINTH AMENDMENT TO CREDIT
AGREEMENT AND FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT
(this “ Agreement ”), dated as of MARCH 27,
2009, is by and among NOVA BIOFUELS SENECA, LLC, a Delaware limited
liability company (“ Borrower ”), NOVA HOLDING
SENECA, LLC, a Delaware limited liability company (“
Pledgor ”), 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, Pledgor and Collateral Agent
have entered into certain Pledge and Security Agreement, dated
February 22, 2008 (the “ Pledge Agreement
”);
WHEREAS , the Parties wish to amend certain of the terms
in the Credit Agreement, as amended, and the Pledge Agreement;
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 Pledge Agreement,
as applicable.
2.
AMENDMENTS TO THE CREDIT
AGREEMENT
2.1
Schedule 5.23
(Separateness Provisions) and Schedule 5.24
(Other Required LLC Provisions) attached to the Credit
Agreement are each hereby amended and restated in their entirety as
set forth in Annex A attached to this Agreement (new text in bold
and underlined, and deleted text in bold and stricken
out).
2.2
Exhibit A
(Definitions) attached to the Credit
Agreement is hereby amended by permanently deleting in its entirety
the definition of “Independent Manager” set forth
therein.
3.
AMENDMENTS TO THE PLEDGE
AGREEMENT
3.1
The last sentence
of Section 2.04(e) (Obligations Unconditional) of
the Pledge Agreement is hereby deleted in its entirety and shall be
null and void and of no further force and effect.
3.2
Section 5.06 (Filing of
Bankruptcy Proceedings) of the Pledge Agreement is
hereby deleted in its entirety and shall be null and void and of no
further force and effect.
4.
CONSENTS
4.1
Notwithstanding
anything to the contrary provided for in the Credit Agreement
(specifically including item 27 of the Separateness Provisions),
the Pledge Agreement (specifically including
Section 5.10 thereof) or any other Financing Document,
each of Collateral Agent, Administrative Agent and each Lender
hereby consents to the amendment and restatement of the Borrower
LLC Agreement in the form as set forth in Annex B attached to this
Agreement (new text in bold and underlined, and deleted text in
bold and stricken out).
4.2
Notwithstanding
anything to the contrary provided for in the Credit Agreement
(specifically including the Separateness Provisions), each Lender
hereby agrees that, in the event of any proceeding under the United
States Bankruptcy Code with respect to Borrower, any consent by
Lenders (including any Lender acting in its capacity as Collateral
Agent or Administrative Agent, as applicable) to any action by
Borrower and/or any affiliated Debtors, or to any motion proposed
and/or relief sought by Borrower and/or any affiliated Debtors,
shall also constitute Lender’s consent to any applicable
actions by Borrower for purposes of the Separateness Provisions and
the corresponding Section 17 of the Borrower LLC
Agreement.
5.
MISCELLANEOUS
5.1
Counterparts
This Agreement may be executed in
two or more original copies and each such copy may be executed by
each of the Parties in separate counterpart, each of which copies
when executed and delivered by the Parties shall constitute an
original, but all of which shall together constitute one and the
same instrument. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or portable
document format (“PDF”) shall be effective as delivery
of a manually executed counterpart of this Agreement.
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5.2
Governing Law
This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New
York, United States of America, without reference to conflicts of
laws (other than Section 5-1401 of the New York General
Obligations Law).
5.3
Limited Purpose; Effect on Credit
Agreement and Pledge Agreement
5.3.1
Except as
expressly amended or waived hereby or otherwise provided herein,
(a) all of the terms and conditions of the Credit Agreement,
the Pledge Agreement and all other Financing Documents remain in
full force and effect, and none of such terms and conditions are,
or shall be construed as, otherwise amended or modified, and
(b) nothing in this Agreement shall constitute a waiver by the
Lenders of any Default or Event of Default, or shall constitute a
waiver by the Lenders of any right, power or remedy available to
the Lenders or the other Senior Secured Parties under the Financing
Documents, whether any such defaults, rights, powers or remedies
presently exist or arise in the future.
5.3.2
The Credit
Agreement shall, together with the amendments set forth herein, be
read and construed as a single agreement. All references in
the Credit Agreement and any related documents, instruments and
agreements shall hereafter refer to the Credit Agreement, as
amended hereby.
5.3.3
The Pledge
Agreement shall, together with the amendments set forth herein, be
read and construed as a single agreement. All references in
the Pledge Agreement and any related documents, instruments and
agreements shall hereafter refer to the Pledge Agreement, as
amended hereby.
5.4
Effectiveness
This Agreement shall become
effective, as of the date first written above, upon the execution
of this Agreement by each of the Parties hereto; provided
that , such effectiveness shall be subject to the condition
subsequent that, no later than 5:00PM, Eastern Daylight Savings
Time, on March 30, 2009, Borrower shall have retained and
appointed a Chief Restructuring Officer (which such Chief
Restructuring Officer must be one of the individuals named on the
list previously provided by Administrative Agent to Borrower of
acceptable candidates for the office of Chief Restructuring
Officer).
5.5
Authority, Etc.
The execution and delivery by the
Borrower and the Pledgor of this Agreement and the performance by
the Borrower of all of its agreements and obligations under the
Credit Agreement and the performance by the Pledgor of all of its
agreements and obligations under the Pledge Agreement, each as
amended hereby are within each of their respective
organizational
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authority and have been duly authorized by all
necessary organizational action on the part of, and have been duly
and validly executed by, the Borrower and Pledgor. Except as
otherwise addressed in this Agreement, and except as otherwise set
forth in that certain Fifth Limited Waiver of Defaults letter dated
March 26, 2009 executed by the Borrower and the Administrative
Agent, the Borrower and Pledgor each represents and warrants that,
upon the effectiveness of this Agreement, no Default or Event of
Default has occurred and is continuing as of the date
hereof.
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IN WITNESS WHEREOF, the Parties have executed
and delivered this Ninth Amendment to Credit Agr
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