Exhibit 10.15


 


EXECUTION VERSION


 


FIFTH AMENDMENT TO CREDIT AGREEMENT AND FIRST
AMENDMENT TO COMPLETION GUARANTY


 


This FIFTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO
COMPLETION GUARANTY (this “Agreement”), dated as of OCTOBER 31, 2008, is
by and among NOVA BIOFUELS SENECA, LLC, a Delaware limited liability company (“Borrower”),
NOVA BIOSOURCE FUELS, INC, a Nevada Corporation (“Guarantor”), 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, Nova Biosource Fuels, Inc.
and WestLB AG New York Branch have entered into certain Completion Guaranty,
dated February 22, 2008 (the “Completion Guaranty”);


 


WHEREAS, the Parties wish to amend certain of
the terms in the Credit Agreement, as amended, and the Completion Guaranty;


 


WHEREAS, the Borrower has requested the waiver
of any Default or Event of Default that might arise as a result of late payment
of interest with respect to the October 31, 2008 Quarterly Payment Date;
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 Completion Guaranty, as applicable.


 


2.                                      AMENDMENTS TO THE CREDIT AGREEMENT


 


2.1                                 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; provided, however, that the aggregate principal amount of the
Construction Loans otherwise due and payable on October 31, 2008 shall be
deferred and shall not be payable until November 30, 2008, whereupon it
shall become due and payable to the Administrative Agent for the ratable
account of each Construction Lender in addition to the aggregate principal
amount of Construction Loans or Term Loans otherwise due and payable on such
Quarterly Payment Date.


 


(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                                 Section 8.11(a) (Warranty Reserve Account) of the Credit Agreement is
hereby amended as follows (new text bold and underlined):


 


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“Warranty Reserve Account.  (a)  On or prior to the
Conversion Date, an amount greater than or equal to the Warranty Reserve
Required Amount, whichever is greater, shall be deposited into the Warranty
Reserve Account from sources other than the Loans or the Required Equity
Contribution (which sources may be as contemplated in Sections 8.12(a) and  8.12(c) (Sponsor Support Account),
and in the Completion Guaranty); provided, that notwithstanding the
foregoing, in lieu of cash, the Guarantor may cause to be delivered to the
Accounts Bank one or more Warranty Reserve Letters of Credit, the Stated
Amounts of which shall be credited to the Warranty Reserve Account.  If at any time after the Conversion Date, funds
are transferred or withdrawn from the Warranty Reserve Account or Warranty
Reserve Letters of Credit are drawn down, such that the amounts on deposit in
and standing to the credit of the Warranty Reserve Account fall below the
Warranty Reserve Required Amount, as required pursuant to the Completion
Guaranty, the Guarantor shall, within thirty (30) days of such transfer or
withdrawal, cause additional amounts to be deposited into the Warranty Reserve
Account from sources other than the Loans or the Required Equity Contribution
(or one or more Warranty Reserve Letters of Credit), so as to replenish the
amounts on deposit in and standing to the credit of the Warranty Reserve
Account to the Warranty Reserve Required Amount.”


 


2.3                                 Section 8.12(a) (Sponsor Support Account) of the Credit Agreement is
hereby amended as follows (new text bold and underlined):


 


“Sponsor Support Account.  (a)  On or prior to the
Closing Date, and as required under the Completion Guaranty, at least five
million Dollars ($5,000,000) shall be deposited into the Sponsor Support
Account from sources other than the Loans (with the exception of any Sponsor
Equity Reimbursement deposited directly into the Sponsor Support Account) or
the Required Equity Contribution.  As
soon as reasonably practicable after September 5, 2008, three million
Dollars ($3,000,000) shall be released from the Sponsor Support Account and
transferred to the Construction Account for the payment of feedstocks utilized
for commissioning, Performance Tests for, and operation of, the Project prior
to the Final Completion Date.  If at any
time thereafter, the amounts on deposit in and standing to the credit of the
Sponsor Support Account fall below two million Dollars ($2,000,000), additional
amounts shall be deposited in the Sponsor Support Account pursuant to the
Completion Guaranty; provided, however, that funds from the
Sponsor Support Account may (i) be withdrawn from the Sponsor Support
Account to pay to the Administrative Agent, for the account of the Senior
Secured Parties, such interest, fees and expenses that were due and payable on November 7,
2008 (or if paid on an earlier date, on such earlier date) under the Financing
Documents, and (ii) prior to the Conversion


 


3

















 


Date, be transferred from the Sponsor Support Account to the Warranty
Reserve Account.”


 


3.                                      AMENDMENT TO THE COMPLETION GUARANTY


 


3.1                                 Section 3.01 (Sponsor Support Account) of the Completion Guaranty is
hereby amended as follows (new text in bold and underlined, and deleted text
stricken out):


 


“Sponsor Support Account.  (a)  The Guarantor hereby
agrees, for the benefit of the Borrower and the Administrative Agent (on behalf
and for the benefit of the Lenders), to cause the Sponsor Support Account to be
fully funded at all times during the Deficiency Support Availability Period in
an amount no less than two million Dollars ($2,000,000) as reduced by any
amounts transferred pursuant to the proviso of Section 8.12(a) (Sponsor Support Account) of the Credit Agreement.


 


(b)                                 On or before the
Closing Date, the Guarantor shall transfer to or deposit in the Sponsor Support
Account an amount in cash no less than five million Dollars ($5,000,000), it
being understood that the Guarantor may apply the proceeds of a Sponsor Equity
Reimbursement, if any, to such transfer or deposit.


 


(c)                                  The Borrower may,
from time to time during the Deficiency Support Availability Period, issue a
Reserve Funding Notice to the Guarantor (with a copy to the Administrative
Agent) if the amounts on deposit in or standing to the credit of the Sponsor
Support Account are less than two million Dollars ($2,000,000).


 


(d)                                 The Administrative
Agent may, from time to time during the Deficiency Support Availability Period,
issue a Reserve Funding Notice to the Guarantor if the amounts on deposit in or
standing to the credit of the Sponsor Support Account are less than two million
Dollars ($2,000,000).


 


(e)                                  In the event of any
conflict between any Reserve Funding Notice delivered by the Borrower under Section 3.01(c) and
any Reserve Funding Notice delivered by the Administrative Agent under Section 3.01(d),
the Reserve Funding Notice (and the terms thereof) delivered by the
Administrative Agent shall prevail.”


 


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4.                                      WAIVER


 


4.1                                 The Lenders waive any
Default or Event of Default arising from the Borrower’s failure to pay interest
under the Financing Documents with respect to the October 31, 2008
Quarterly Payment Date on condition that the Borrower pays such interest on or
before November 7, 2008 and also on the same date pays Default Interest on
such late paid interest in the amount calculated in accordance with Section 3.06
(Default Interest Rate) of the Credit
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.


 


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 Completion Guaranty


 


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 Completion Guaranty 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.


 


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5.3.3                        The Completion Guaranty shall,
together with the amendments set forth herein, be read and construed as a
single agreement.  All references in the
Completion Guaranty and any related documents, instruments and agreements shall
hereafter refer to the Completion Guaranty, 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.


 


5.5                                 Authority,
Etc.


 


The execution and delivery by the Borrower and
the Guarantor 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 Guarantor of all of its agreements and obligations under the Completion
Guaranty, each as amended hereby are within each of their respective
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 and Guarantor.  Except
as otherwise addressed in this Agreement, the Borrower and Guarantor 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 Fifth
Amendment to Credit Agreement and First Amendment to Completion Guaranty as of
the date first above written.


 


 


	
   

  	
  NOVA BIOFUELS SENECA, LLC,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay Fillman

  
	
   

  	
   

  	
  Name: Jay Fillman

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NOVA BIOSOURCE
  FUELS, INC.,

  
	
   

  	
  as the Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth
  T. Hern

  
	
   

  	
   

  	
  Name: Kenneth T. Hern

  
	
   

  	
   

  	
  Title:  Chief Executive Officer

  



 

















 


	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
   

  	
  Name:

  	
  Duncan Robertson

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James R. Anderson

  
	
   

  	
   

  	
  Name:

  	
  James Anderson

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
   

  	
  Name:

  	
  Duncan Robertson

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James R. Anderson

  
	
   

  	
   

  	
  Name:

  	
  James Anderson

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
   

  	
  Name:

  	
  Duncan Robertson

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James R. Anderson

  
	
   

  	
   

  	
  Name:

  	
  James Anderson

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
   

  	
  Name:

  	
  Duncan Robertson

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James R. Anderson

  
	
   

  	
   

  	
  Name:

  	
  James Anderson

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  STERLING BANK,

  
	
   

  	
  as Accounts Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter M. Ellen

  
	
   

  	
   

  	
  Name:

  	
  Peter M. Ellen

  
	
   

  	
   

  	
  Title:

  	
  Vice President