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.


 


[The
remainder of this page is intentionally blank.]


 


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IN WITNESS WHEREOF, the Parties have executed
and delivered this Ninth Amendment to Credit Agreement and First Amendment to
Pledge Agreement as of the date first above written.


 


	
   

  	
  NOVA BIOFUELS SENECA, LLC,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Kenneth T. Hern

  
	
   

  	
   

  	
  Name: Kenneth T. Hern

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NOVA HOLDING
  SENECA, LLC,

  
	
   

  	
  as Pledgor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Kenneth T. Hern

  
	
   

  	
   

  	
  Name: Kenneth T. Hern

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  



 





















 


	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E. Keith Min

  
	
   

  	
   

  	
  Name:

  	
  E. Keith Min

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Nunn

  
	
   

  	
   

  	
  Name: 

  	
  Christopher Nunn

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E. Keith Min

  
	
   

  	
   

  	
  Name: 

  	
  E. Keith Min

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Nunn

  
	
   

  	
   

  	
  Name: 

  	
  Christopher Nunn

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E. Keith Min

  
	
   

  	
   

  	
  Name: 

  	
  E. Keith Min

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Nunn

  
	
   

  	
   

  	
  Name: 

  	
  Christopher Nunn

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E. Keith Min

  
	
   

  	
   

  	
  Name: 

  	
  E. Keith Min

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Nunn

  
	
   

  	
   

  	
  Name: 

  	
  Christopher Nunn

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 










 












ANNEX A


 


Amended and Restated
Schedule 5.23 (Separateness Provisions) and
Schedule 5.24 (Other Required LLC Provisions)


 


SEE ATTACHED


 


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SCHEDULE 5.23

to Credit Agreement


 


Separateness Provisions


 


The Borrower LLC Agreement
must include each of the following terms (collectively, the “Separateness
Provisions”):


 


Separateness.  So long as any Obligation (as defined in the Credit Agreement) remains
outstanding, the board unless the Lenders under the Credit Agreement
shall otherwise agree or consent, the Board shall cause the Company, and
the Company shall:


 


(1)           maintain full and complete financial records in accordance
with generally accepted accounting principles and maintain its books, records
and bank accounts as official records separate from those of any other Person;


 


(2)           maintain separate financial statements, showing its assets
and liabilities separate and apart from those of any other Person and not have
its assets listed on any financial statement of any other Person; provided,
however, that the Company’s assets may be included in a consolidated financial
statement of its Affiliate provided that (a) appropriate notation shall be
made on such consolidated financial statements to indicate the separateness of
the Company from such Affiliate and to indicate that the Company’s assets and
credit are not available to satisfy the debts and other obligations of such
Affiliate or any other Person and (b) such assets shall also be listed on
the Company’s own separate balance sheets;


 


(3)           at all times hold itself out to the public and all other
Persons as a legal entity separate from its members and from any other Person
(including any Affiliate);


 


(4)           conduct its business only in its own name and strictly
comply with all organizational formalities to maintain its separate existence,
including maintaining its own records, books, resolutions and other entity
documents;


 


(5)           not use any trade names, fictitious names, assumed names
or “doing business” names that are similar to any used by any Affiliate (other
than “Nova Biofuels Seneca”) and not share any common logo with any Affiliate;


 


(6)           correct any known misunderstanding regarding its separate
identity and not identify itself as a department or division of any other
Person;


 


(7)           not hold itself out to be responsible for or have its
credit or assets available to satisfy the debts or obligations of any other
Person;


 


(8)           file its own tax returns separate from those of any other
Person (except to the extent that the Company is treated as a “disregarded
entity” for tax purposes 


 


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and is not required to file tax
returns under applicable law) and pay any taxes required to be paid under
applicable law;


 


(9)           not commingle its assets with assets of any other Person
(including not participating in any cash management system with any Person) and
hold its own assets in its own name (except to the extent otherwise provided in
the financing documents);


 


(10)         maintain its assets in such a manner that it will not be
costly or difficult to segregate, ascertain or identify its individual assets
from those of any Person;


 


(11)         pay its own liabilities and expenses only out of its own
funds;


 


(12)         not share with any other Person any expenses for Personnel,
overhead or office space;


 


(13)         pay the salaries of its own employees, if any, only from its
own funds;


 


(14)         not enter into any transaction with any Affiliate of the
Company except on commercially reasonable terms similar to those available to
unaffiliated parties in an arm’s-length transaction, other than capital
contributions or capital distributions permitted under the terms and conditions
of the credit agreement;


 


(15)         use separate stationery, invoices and checks bearing its own
name;


 


(16)         except for Permitted Liens, not pledge its assets for the
benefit of any other Person;


 


(17)         not make loans or advances to any Person or buy or hold
evidence of indebtedness issued by any other Person (other than cash or
investment-grade securities or to employees for business expenses incurred in
the ordinary course of business);


 


(18)         not assume or guarantee any obligation of any Person;
including any Affiliate or become obligated for the debts of any other Person;


 


(19)         be solvent and maintain adequate capital and a sufficient
number of employees in light of its contemplated business purpose, transactions
and liabilities;


 


(20)         not acquire any obligation or securities of any member or
any Affiliate of the Company;


 


(21)         not form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability Company or other) or own any equity interest in
any entity;


 


(22)         not become involved in the day-to-day management of any
other Person -


 


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(23)         have a board of directors separate from that or those of its
members and any other Person;


 


(24)         cause its board of directors to meet at least annually or
act pursuant to written consent and keep minutes of such meetings and actions
and observe all other Delaware limited liability Company formalities;


 


(25)         cause its members, officers, agents and other
representatives to act at all times in a manner consistent with and in
furtherance of the foregoing and in the best interests of itself;


 


(26)         not incur any indebtedness that is not Permitted
Indebtedness, as defined in the Credit Agreement; and


 


(27)         to the extent restricted by the Financing Documents, not
amend, alter or change the terms of its Organic Documents in any material
respect unless the Administrative Agent consents.


 


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SCHEDULE 5.24

to Credit Agreement


 


Other Required LLC Provisions


 


The Borrower LLC Agreement
must include each of the following terms (collectively, and together with the
provisions in Schedule 5.23, the “Required LLC Provisions”):


 


Definitions


 


“Independent Manager”
means a Person, who is not at the time of initial appointment as the
Independent Manager or at any time while serving as the Independent Manager and
has not been at any time during the five (5) years preceding such initial
appointment:


 


a.                                       (i) a direct or indirect owner of any Equity Interest in, member,
officer, employee, partner, director, manager (with the exception of serving as
the Independent Manager) or contractor, bankruptcy trustee, attorney or counsel
of the Company, any member of the Company, or any Affiliate of any of them;


 


b.                                       (ii) a creditor, customer, supplier, or other person (including each
Project Party) who derives any of its purchases or revenues from its activities
with the Company, any member of the Company or any Affiliate of any of them;


 


c.                                       (iii) a Person controlling or under common control with the Company,
any member of the Company or any Affiliate of any of them or any Person
excluded from serving as Independent Manager under clause (i) or (ii) of
this definition;


 


d.                                       (iv) a member of the immediate family by blood or marriage of any
Person excluded from being an Independent Manager under clause (i) or (ii) of
this definition; or


 


e.                                       (v) a Person who received, or a member or employee of a firm or
business that received, fees or other income from the Company, any member of
the Company or any Affiliate of any of them in the aggregate in excess of five
percent (5%) of the gross income, for any applicable year, of such Person.


 


“Material Action” means (i) to file any
insolvency or reorganization case or proceeding, to institute proceedings to
have the Company be adjudicated bankrupt or insolvent, to institute proceedings
under any applicable insolvency law, to seek any relief under any law relating
to relief from debts or the protection of debtors, to consent to the filing or
institution of bankruptcy or insolvency proceedings against the Company, to
file a petition seeking, or consent to, reorganization, liquidation or relief
with respect to the Company under any applicable federal or state law relating
to bankruptcy, reorganization or insolvency, to seek or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator,
custodian, or any similar 


 


AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

NOVA BIOFUELS SENECA, LLC


 

















 


official
of or for the Company or a substantial part of its property, to make any
assignment for the benefit of creditors of the Company, to admit in writing the
Company’s inability to pay its debts generally as they become due, (ii) to
merge, consolidate or combine the Company or any subsidiary of any of them with
any other entity, to dissolve or wind-up the Company, to sell, transfer or
otherwise dispose of all or substantially all of the Company’s assets or to
approve any plan or agreement to engage in any of the foregoing actions, or (iii) to
amend, alter or change the Required LLC Provisions, or (iv) to take action
in furtherance of any of the foregoing.


 


Other
Required Provisions


 


(a)           So long as any
Obligation is outstanding, the Board must include one Independent Manager. To
the fullest extent permitted by law, the Independent Manager shall consider
only the interests of the Company and its creditors in acting or otherwise
voting on any Material Action with respect to the Company. No removal of the
Independent Manager, and no appointment of a successor Independent Manager,
shall be effective until such successor shall have accepted his, her or its appointment
as Independent Manager by a written instrument. In the event of a vacancy in
the position of Independent Manager, the Member shall, as soon as practicable,
appoint a successor Independent Manager.


 


(a)           (b) All interests in the Company shall
be securities governed by Article 8 of the Uniform Commercial Code and
shall be evidenced by certificates. The certificated interests shall be in
registered form within the meaning of Article 8 of the Uniform Commercial
Code.


 


(b)           (c) The Company shall not conduct any
business or activities other than businesses and activities relating to the
ownership, development, testing, financing, construction, operation and
maintenance of the Project as contemplated by the Transaction Documents), provided that, the foregoing shall not be
deemed to prohibit the taking of any Material Action (as defined herein) that
is approved in accordance with the provisions of Section 14 hereof.


 


(c)           (d) The Company shall not take any
Material Action (i) without
the unanimous written approval
of a majority of the Board (including the Independent Manager) or (ii) at
any time when it has no Independent Manager..


 


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ANNEX A


 


Amended and Restated
Borrower LLC Agreement


 


SEE ATTACHED


 


3