Exhibit 10.14


 


Execution
Version


 


FOURTH
AMENDMENT TO CREDIT AGREEMENT


 


This FOURTH AMENDMENT
TO CREDIT AGREEMENT (this “Agreement”), dated as of September 29,
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 Parties wish to amend certain of the terms in the Credit 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.


 


2.                                      AMENDMENTS


 


2.1                                 Exhibit A
(Defined Terms) of the Credit
Agreement is hereby amended by as follows (new text in bold and underlined, and
deleted text stricken out):


 


“ “Conversion
Date Certain” means December 31, 2008.”


 


“ “Initial
Quarterly Payment Date” means, (x) with respect to the Term Loans, the first Quarterly
Payment Date following the Conversion
Date, and (y) with respect to the Construction Loans, the first
Quarterly Payment Date following September 30, 2008.


 


2.2                                 Section 2.07(d) (Termination or Reduction of Commitments) of the Credit
Agreement is hereby amended as follows (new text in bold and underlined):


 


“Upon any
prepayment of the Construction Loans pursuant to Section 3.09 (Optional Prepayment) or Section 3.10 (Mandatory Prepayment), or any repayment of the
Construction Loans on a Quarterly Payment Date


 

















 


pursuant to Section 3.01(c) (Repayment of Construction Loan Fundings),  the Term Loan Commitments shall be automatically and
permanently reduced in an amount equal to such prepayment or re payment.”


 


2.3                                 Section 3.01
(Repayment of Construction Loan Fundings)
of the Credit Agreement is hereby amended as follows (new text in bold and
underlined, and deleted text stricken out):


 


“Repayment
of Construction Loan Fundings.  (a) The
Borrower unconditionally and irrevocably promises to pay to the Administrative
Agent for the ratable account of each Construction/Term Lender the aggregate
outstanding principal amount of the Construction Loans in accordance with this Section 3.01.


 


(b)                                 The
Construction Loans shall be repaid in full on the Conversion Date with the
proceeds of the Term Loans or, if earlier, on the Conversion Date Certain in
accordance with Section 3.01(d).


 


(c)                                  If
the Conversion Date does not occur on or prior to the Initial Quarterly Payment
Date, then, until the earlier to occur of the Conversion Date and the
Conversion Date Certain, the Borrower unconditionally and irrevocably promises
to pay to the Administrative Agent for the ratable account of each Construction
Lender the aggregate outstanding principal amount of the Construction Loans, on
the Initial Quarterly Payment Date and on each Quarterly Payment Date
thereafter, in an amount equal to one and one-half percent (1.5%) of the
aggregate total amount of the Construction Loans made on the Initial Quarterly
Payment Date and on each Quarterly Payment Date thereafter.


 


(d)                                 If
the Conversion Date does not occur on or prior to the Conversion Date Certain,
then on the Conversion Date Certain, (i) each outstanding Construction
Loan shall automatically and without further action become due and payable, (ii) all
amounts in any Project Accounts shall be promptly applied at the written
instruction of the Administrative Agent to Obligations then outstanding in
accordance with Section 9.04 (Application of Proceeds),
and (iii) the Borrower shall pay all accrued interest on and repay the
entire remaining principal amount of all outstanding Construction Loans to the
Administrative Agent, for the pro rata account of the Lenders (based on their
respective Construction Loan Commitment Percentages), together with any and all
Fees and other Obligations owed to the Senior Secured Parties.”


 


2

















 


2.4                                 Section 3.02
(Repayment of Term Loan Fundings) of
the Credit Agreement is hereby amended as follows (new text in bold and
underlined):


 


“Repayment
of Term Loan Fundings.  (a)  The
Borrower unconditionally and irrevocably promises to pay to the Administrative
Agent for the ratable account of each Construction/Term Lender the aggregate
outstanding principal amount of the Term Loans, on the Initial Quarterly
Payment Date and on each Quarterly Payment Date thereafter, in an amount equal
to one and one-half percent (1.5%) of (i) the aggregate total amount of
the Term Loans made on the Conversion Date (which amount shall be reduced as a
result of any prepayments of the Term Loans made in accordance with Section 3.09
(Optional Prepayment) or Section 3.10
(Mandatory Prepayment) in accordance
with the terms set forth therein) plus (ii) the amount of all
repayments of principal on the Construction Loans made pursuant to Section 3.01(c)
(Repayment of Construction Loan Fundings).”


 


2.5                                 Section 8.04(b)(v) (Revenue Account) of the Credit Agreement is hereby
amended as follows (new text in bold and underlined):


 


fifth, on each Quarterly Payment Date, to pay,
to the Administrative Agent, for the account of the Senior Secured Parties, on
a pro rata basis, the amount certified by the Borrower in such Revenue Account
Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank
by the Administrative Agent as (A) the principal amounts due and payable
with respect to the Term Loans or Construction Loans and (B) the payments
of Swap Termination Value then due and payable by the Borrower with respect to
any Interest Rate Protection Agreements;”


 


3.                                      MISCELLANEOUS


 


3.1                                 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.


 


3.2                                 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).


 


3

















 


3.3                                 Limited
Purpose; Effect on Credit Agreement


 


3.3.1                        Except
as expressly amended hereby or otherwise provided herein, (a) all of the
terms and conditions of the Credit 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.


 


3.3.2                        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.


 


3.4                                 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.


 


3.5                                 Authority,
Etc.


 


The execution and delivery by the Borrower of this Agreement and the
performance by the Borrower of all of its agreements and obligations under the
Credit Agreement as amended hereby are within its organizational 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.  Except as otherwise addressed in this
Agreement, the Borrower 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.]


 


4

















 


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


 


 


	
   

  	
  NOVA BIOFUELS SENECA, LLC,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay Fillman

  
	
   

  	
   

  	
  Name: Jay Fillman

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  



 

















 


	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Vincent

  
	
   

  	
   

  	
  Name:

  	
  Robert Vincent

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
   

  	
  Name:

  	
  Duncan Robertson

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Vincent

  
	
   

  	
   

  	
  Name:

  	
  Robert Vincent

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
   

  	
  Name:

  	
  Duncan Robertson

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Vincent

  
	
   

  	
   

  	
  Name:

  	
  Robert Vincent

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
   

  	
  Name:

  	
  Duncan Robertson

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Vincent

  
	
   

  	
   

  	
  Name:

  	
  Robert Vincent

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
   

  	
  Name:

  	
  Duncan Robertson

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 

















 


	
   

  	
  STERLING BANK,

  
	
   

  	
  as Accounts Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter M. Ellen

  
	
   

  	
   

  	
  Name:

  	
  Peter M. Ellen

  
	
   

  	
   

  	
  Title:

  	
  Vice President