Exhibit 10.1
March 26, 2009
Nova Biofuels Seneca, LLC
614 Shipyard Road
Seneca, IL 61360
Attn.: Ken
Hern
Re:
Nova Biofuels Seneca, LLC —
-Fifth Limited Waiver of Defaults
Dear Mr. Hern:
Reference is hereby made to the
Credit Agreement dated as of December 26, 2007 (as amended
from time to time, the “ Credit Agreement ”)
among Nova Biofuels Seneca, LLC, as Borrower (the “
Borrower ”), the lenders party thereto (the “
Lenders ”), WestLB AG, New York Branch, as
Administrative Agent (the “ Administrative Agent
”), Collateral Agent, Issuing Bank, Lead Arranger and Sole
Bookrunner, and Sterling Bank, as Accounts Bank. Capitalized
terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement.
The Borrower has failed to make the
principal payment in the amount of $540,000 and the interest
payment in the amount of $758,160.94 that was due on
February 2, 2009. Pursuant to
Section 9.01(a) of the Credit Agreement, (i) failure
to pay principal when due, and (ii) failure to pay interest
within three Business Days from the date when due, each constitute
an Event of Default (the “Payment Defaults”). By
letters dated February 3, 2009, February 17, 2009,
March 2, 2009 and March 18, 2009 the Administrative Agent
agreed to waive the requirements of Section 9.01(a) of
the Credit Agreement as they relate to payment of principal and
interest first for a period from February 2, 2009 through and
including February 17, 2009, then for a period from
February 18, 2009 through and including March 3, 2009,
then for a period from March 3, 2009 through and including
March 20, 2009 and then for a period from March 20, 2009
through and including March 27, 2009. Pursuant to the
letters dated March 2, 2009 and March 18, 2009, the
Administrative Agent also agreed to waive the requirements of
certain applicable subsections of Section 9.01 of the Credit
Agreement as they related to those certain additional Events of
Default identified on the Exhibit A attached to each such
letter.
Borrower has informed Administrative
Agent that certain other Events of Default have occurred and remain
outstanding under the Credit Agreement, or are anticipated to occur
in the immediate future, under Sections 9.01(c), 9.01(d),
9.01(j)(i) and 9.01(o) of the Credit Agreement
due to the failure of Borrower to comply with
certain other covenants under and provision of the Credit Agreement
as required by such Sections 9.01(c), 9.01(d),
9.01(j)(i) and 9.01(o), all as more specifically identified on
Exhibit A attached hereto (such existing and
anticipated Events of Default, together with the Payment Defaults,
the “ Specified Defaults ”). By its
signature below, Borrower hereby represents and warrants that, as
of the date hereof, no Event of Default has occurred and remains
continuing under the Credit Agreement other than the Specified
Defaults.
In order to allow the Borrower to
continue to evaluate its financial condition and prospects and to
avoid the occurrence of a Default or an Event of Default, the
Borrower has requested that the Lenders agree to an
additional waiver of the requirements under Sections 9.01(a),
9.01(c), 9.01(d), 9.01(j)(i) and 9.01(o) of the Credit
Agreement (the “ Waiver ”) for the period from
March 27, 2009 through 11:59 PM EST on and including
March 30, 2009 (the “ Waiver Period
”)
The Administrative Agent, on behalf
of, and with the approval of, Lenders constituting Required Lenders
under the Credit Agreement, hereby waive, during the Waiver Period,
and only during the Waiver Period, the requirements of Sections
9.01(a), 9.01(c), 9.01(d), 9.01(j)(i) and 9.01(o) of the
Credit Agreement as they relate to all of the Specified
Defaults. Immediately upon the expiration of the Waiver
Period, automatically and without any further action by the
Administrative Agent or the Lenders or any other party, all of the
terms and provisions set forth in the Credit Agreement with respect
to all obligations and covenants thereunder that are waived
hereunder shall have the same force and effect as if this Waiver
had not been entered into by the parties hereto, and the
Administrative Agent and the Lenders shall have all of the rights
and remedies afforded to them under the Financing Documents as
though the Waiver had not been entered into.
As consideration for the Waiver, the
Borrower covenants and agrees
