Exhibit 10.13


 


Execution Version


 


CONSENT AND THIRD AMENDMENT TO CREDIT
AGREEMENT


 


This CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT (this “Agreement”),
dated as of September 5, 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 Borrower is a party to that
certain Development Management Agreement by and between the Borrower and
Biosource America, Inc., effective as of January 17, 2007 (the “Development
Agreement”);


 


WHEREAS, the Parties wish to amend certain of
the terms in the Credit Agreement; and


 


WHEREAS, the Lenders wish to consent to
decisions of the Borrower under the Development Agreement.


 


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           Section 6.02 (Conditions
to All Construction Loan Fundings) of the Credit Agreement is
hereby amended as follows:


 


2.1.1       6.02 (a)(iii) is amended to read as follows
(new text bold and underlined):


 


“absolute and unconditional sworn Lien waiver statements in form and
substance reasonably satisfactory to the Administrative Agent and the
Independent Engineer evidencing receipt of payment by each Construction
Contractor, all subcontractors, all contractors performing the Owners


 

















 


Scope and all other Persons who were paid from the proceeds of the then
last preceding Funding (other than Lien waivers (A) from contractors whose
work, on an aggregate basis (taking into account any and all contracts or
agreements pursuant to which such contractor has performed work relating to the
Project), entitles them to aggregate payment of less than $100,000 and (B) for
work in an aggregate total amount of up to seven hundred fifty thousand Dollars
($750,000)); provided that in the case of the initial Funding, such Lien waiver
statements shall evidence receipt of all payments paid or due and payable by
the Borrower to each Construction Contractor, all subcontractors and all other
Persons who have performed work in connection with the Project since the
commencement of construction.  Such Lien
waiver statements shall (A) be dated on or prior to the date of the
Funding Notice and (B) cover all work done and all sums received through
the date of the then last preceding Funding (or, in the case of the initial
Funding, the commencement of construction). 
Each such Lien waiver statement shall be certified as true and correct
and complete by the Borrower to its Knowledge and the applicable contractor and
shall be verified by the Independent Engineer;”


 


2.1.2        6.02(c) is amended by adding the following
words at the beginning of the provision: “For Fundings in excess of seven
hundred fifty thousand Dollars ($750,000),”.


 


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


 


“(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.”


 


2.3           Section 8.12(d) (Sponsor Support Account) of the Credit Agreement is
hereby amended as follows (deleted text indicated by strikethrough and bold):


 


2

















 


“Unless a Notice of Suspension is in effect or a Default or Event of
Default would occur after giving effect to any application of funds
contemplated hereby and following the termination of the Completion Guaranty
(as confirmed in writing by the Administrative Agent) all amounts on deposit in
or standing to the credit of the Sponsor Support Account may, at the written
direction of the Borrower (with a copy to the Administrative Agent), be
transferred to the Guarantor.”


 


2.4           Section 8.13(a) (Representations, Warranties and Covenants of the Accounts Bank)
of the Credit Agreement is is hereby amended as follows (new text bold and
underlined):


 


“it will act as depositary agent, as “securities intermediary” (within
the meaning of Section 8-102(a)(14) of the UCC) with respect to each of
the Project Accounts that is a “securities account” (within the meaning of Section 8-501
of the UCC) and the Financial Assets credited to such Project Accounts, and as “bank”
(within the meaning of 9-102(a)(8) of the UCC) with respect to each of the
Project Accounts as described in Section 8.15 (Project
Accounts as Deposit Account) and credit balances not constituting
Financial Assets credited thereto and to accept all cash, payments, other
amounts and Cash Equivalents to be delivered to or held by the Accounts Bank
pursuant to the terms of this Agreement. 
The Borrower, the Senior Secured Parties and the Accounts Bank agree
that, for purposes of Articles 8 and 9 of the UCC, notwithstanding anything to
the contrary contained in any other agreement relating to the establishment and
operation of the Project Accounts, the jurisdiction of the Accounts Bank (in
its capacity as the securities intermediary and bank) is the State of New York;
provided, however, that venue for any action brought under this
Agreement exclusively related to a claim against the Accounts Bank is proper in
Harris County, Texas.”


 


3.             CONSENT


 


3.1           The Lenders consent to
the Borrower, in consultation with the Independent Engineer, declaring
Substantial Completion and the Commercial Operations Date (as each is defined
by the Development Agreement) without requiring an independent witness to
observe Performance Testing (as defined under the Development Agreement).


 


3

















 


4.             MISCELLANEOUS


 


4.1           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.


 


4.2           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).


 


4.3           Limited
Purpose; Effect on Credit Agreement


 


4.3.1       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.


 


4.3.2       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.


 


4.4           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.


 


4.5           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.


 


4

















 


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.]


 


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IN WITNESS WHEREOF, the Parties have executed and delivered this Third
Amendment to Credit 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

  



 

















 


	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
  Name:  Duncan
  Robertson

  
	
   

  	
  Title:    Executive
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Schottlaender

  
	
   

  	
  Name:  Ian
  Schottlaender

  
	
   

  	
  Title:    Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
  Name:  Duncan
  Robertson

  
	
   

  	
  Title:    Executive
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Schottlaender

  
	
   

  	
  Name:  Ian
  Schottlaender

  
	
   

  	
  Title:    Managing
  Director

  
	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
  Name:  Duncan
  Robertson

  
	
   

  	
  Title:    Executive
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Schottlaender

  
	
   

  	
  Name:  Ian
  Schottlaender

  
	
   

  	
  Title:   Managing
  Director

  
	
   

  	
   

  
	
   

  	
  WESTLB AG, NEW YORK BRANCH,

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Robertson

  
	
   

  	
  Name:  Duncan
  Robertson

  
	
   

  	
  Title:    Executive
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Schottlaender

  
	
   

  	
  Name:  Ian
  Schottlaender

  
	
   

  	
  Title:   Managing
  Director

  



 

















 


	
   

  	
  STERLING BANK,

  
	
   

  	
  as Accounts Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter M. Ellen

  
	
   

  	
  Name:  Peter
  M. Ellen

  
	
   

  	
  Title:    Vice
  President