DRAFT 11/09/2007
INTERIM RESTRUCTURING AGREEMENT
THIS INTERIM RESTRUCTURING AGREEMENT, (the "AGREEMENT"), is dated of
the [__] day of November, 2007 ("AGREEMENT DATE") by and among (i) the LENDERS
that are signatories hereto (collectively, the "LENDERS"); (ii) EARTH BIOFUELS,
INC., a Delaware Corporation, ("EBOF"); (iii) XXXXXX XXXXXXXXXX, ("XXXXXXXXXX")
an individual; and (iv) entities listed on the SCHEDULE OF EBOF SUBSIDIARIES
attached hereto as Schedule A (individually, a "SUBSIDIARY" and collectively,
the "SUBSIDIARIES").
RECITALS
WHEREAS, Radcliffe SPC, Ltd. for and on behalf of the Class A
Convertible Crossover Segregated Portfolio ("RADCLIFFE"), Castlerigg Master
Investments Ltd. ("CASTLERIGG"), and Capital Ventures International ("CVI";
collectively, the "INITIAL BRIDGE LENDERS") are parties to a Securities Purchase
Agreement, dated as of June 7, 2006 (the "INITIAL BRIDGE SECURITIES PURCHASE
AGREEMENT") with Earth Biofuels, Inc. ("EBOF"), pursuant to which EBOF issued,
among other things, warrants to purchase 1,500,000 shares of common stock,
$0.001 par value (the "COMMON STOCK"), of EBOF at the exercise price of $2.93
(the "INITIAL BRIDGE WARRANTS") and in connection with the Initial Bridge
Securities Purchase Agreement, EBOF executed a Registration Rights Agreement
(the "INITIAL BRIDGE REGISTRATION RIGHTS AGREEMENT," collectively with the
Initial Bridge Securities Purchase Agreement and the Initial Bridge Warrants,
the "INITIAL BRIDGE TRANSACTION DOCUMENTS") under which it agreed to cooperate
in the registration of the securities under the Initial Bridge Securities
Purchase Agreement;
WHEREAS, Castlerigg (the "SECOND BRIDGE LENDER") is a party to a
Securities Purchase Agreement, dated as of July 10, 2006 (the "SECOND BRIDGE
SECURITIES PURCHASE AGREEMENT") with EBOF, pursuant to which EBOF issued, among
other things, warrants to purchase 1,500,000 shares of Common Stock at the
exercise price of $2.50 (the "SECOND BRIDGE WARRANTS") and in connection with
the Second Bridge Securities Purchase Agreement, EBOF executed a Registration
Rights Agreement (the "SECOND BRIDGE REGISTRATION RIGHTS AGREEMENT,"
collectively with the Second Bridge Securities Purchase Agreement, Second Bridge
Warrants, the "SECOND BRIDGE TRANSACTION Documents") under which it agreed to
cooperate in the registration of the securities under the Second Bridge
Securities Purchase Agreement;
WHEREAS, Radcliffe, Castlerigg, CVI, YA Global Investments, L.P.
(formerly known as Cornell Capital, L.P. ("YORKVILLE")), Cranshire Capital L.P.
("CRANSHIRE"), Portside Growth and Opportunity Fund ("PORTSIDE"), Evolution
Master Fund Ltd. SPC, Segregated Portfolio M ("EVOLUTION"), and Kings Road
Investments Ltd. ("KINGS Road"; collectively, the "NOTEHOLDERS") are parties to
a Securities Purchase Agreement, dated as of July 24, 2006 (the "SECURITIES
PURCHASE AGREEMENT") with EBOF, pursuant to which EBOF issued (i) 8% Senior
Convertible Notes (collectively, the "NOTES") in the aggregate principal amount
of $52.5 million, which were unsecured and convertible into shares of Common
Stock at $2.90 per share, and (ii) warrants to purchase in excess of 9,000,000
shares of common stock of EBOF at the exercise price of $2.90 (the "WARRANTS")
and in connection with the Securities Purchase Agreement, EBOF executed a
Registration Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT," collectively
with the Initial Bridge Transaction Documents, the Second Bridge Transaction
Documents, the Securities
DRAFT 11/09/2007
Purchase Agreement, Notes, and Warrants, the "TRANSACTION DOCUMENTS") under
which it agreed to cooperate in the registration of the securities under the
Securities Purchase Agreement;
WHEREAS, each Noteholder delivered an Event of Default Redemption
Notice to EBOF identifying various events of default under its Note and
demanding that EBOF redeem the Noteholder's interest in the Note at the Event of
Default Redemption Price and EBOF failed to remit the Event of Default
Redemption Price;
WHEREAS, numerous Events of Default as defined in the Transaction
Documents have occurred and are continuing;
WHEREAS, on July 11, 2007, Radcliffe, Yorkville, Portside,
Castlerigg and Evolution (the "PETITIONING CREDITORS") commenced an involuntary
bankruptcy proceeding against EBOF pursuant to Title 11 of the United States
Code (the "BANKRUPTCY CODE") in the United States Bankruptcy Court for the
District of Delaware, Case No. 07-10928 (CSS) (the "BANKRUPTCY CASE");
WHEREAS, for the past several months, EBOF has engaged in
discussions with Castlerigg and certain of the other Noteholders regarding the
terms of an out-of-court restructuring;
WHEREAS, EBOF wishes to further explore the possibility of
restructuring and modifying the existing rights and obligations under the
Transaction Documents with the Noteholders, through one or more definitive
documents to be negotiated during the course of the next 6 to 12 months (the
"RESTRUCTURING TRANSACTION");
WHEREAS, at EBOF's request, the Lenders are willing, subject to
and on the terms and conditions hereof and of the documents to be executed in
connection herewith, to forbear from exercising rights and remedies under the
Transaction Documents and, as applicable, to consent to dismissal of the
Bankruptcy Case in exchange for the terms hereof and of the documents to be
executed in connection herewith.
NOW, THEREFORE, for and in consideration of the foregoing and
other good and valuable consideration recited in this Agreement, the receipt and
sufficiency of which are herein acknowledged, the Lenders, EBOF, XxXxxxxxxx and
the Subsidiaries (each, a "PARTY"; collectively, the "PARTIES") agree to the
following:
1. DISMISSAL OF BANKRUPTCY CASE
(a) EBOF and each Lender that is a Petitioning Creditor shall consent,
subject to section 2(b) below, to the dismissal of the Bankruptcy Case
pursuant to Section 303(j) of the Bankruptcy Code, with each Party to
bear its own costs.
(b) Concurrently with the filing of the joint motion to dismiss (the
"DISMISSAL MOTION"), which shall be in form and substance acceptable
to the Lenders that are Petitioning Creditors, EBOF shall also file
with the Bankruptcy Court a verified list of creditors who shall
receive notice of the motion to dismiss the Bankruptcy Case.
DRAFT 11/09/2007
(c) EBOF and the Lenders that are Petitioning Creditors shall file the
Dismissal Motion to dismiss the Bankruptcy Case with the Bankruptcy
Court by no later November [__], 2007.(1)
2. NEW COLLATERAL DOCUMENTS
(a) Concurrently with the execution of this Agreement, the Parties (as
applicable) shall execute the following documents, forms of which are
attached hereto as Exhibits A - D) (collectively, the "COLLATERAL
DOCUMENTS") all which shall be effective as of the Dismissal Date (as
defined in section 8 below):
(i) release agreement;
(ii) guaranty from XxXxxxxxxx ("XXXXXXXXXX GUARANTY") in favor of the
Lenders;
(iii) confessions of judgment by EBOF in favor of each of the Lenders
(individually and collectively, the "CONFESSIONS OF JUDGMENT");
and
(iv) guaranty from the Subsidiaries ("SUBSIDIARY GUARANTY") in favor
of the Lenders.
3. FORBEARANCE
(a) Each Lender hereby agrees to forebear from exercising or enforcing any
contractual, legal or equitable rights or remedies (including, but not
limited to, exercising any creditor remedies) arising under or related
to the Transaction Documents or Collateral Documents from the
Dismissal Date (defined in section 8 below) until the earliest of the
following to occur (each a "STANDSTILL EXPIRATION EVENT"):
(i) June [__], 2008, which may be extended with the prior written
consent of all Lenders in their sole discretion;(2)
(ii) 180 days from the Dismissal Date, which may be extended with the
prior written consent of all Lenders in their sole discretion;
(iii) final consummation of all aspects of the restructuring (as
determined by the Lenders holding 66 ?% of the aggregate
principal amount of the Notes (the "REQUIRED LENDERS") in their
sole discretion);
(iv) any of the following events occur:
(1) INSERT DATE THAT IS 5 CALENDAR DAYS AFTER EXECUTION OF THIS AGREEMENT.
(2) INSERT DATE THAT 225 DAYS FROM THE EXECUTION OF THIS AGREEMENT.
DRAFT 11/09/2007
(1) prior to the Restructuring Consummation Deadline (as
defined in section 3(a)(iv)(5) below), either (x) an order
for relief is entered in a case under the Bankruptcy Code
with respect to EBOF or any Subsidiary, or (y) an
involuntary bankruptcy petition is filed against either
EBOF or any Subsidiary and such petition is not dismissed
on or before sixty (60) days after the date such petition
is filed;
(2) failure of EBOF to execute security documents (in form and
substance acceptable to the Required Lenders as determined
by the Required Lenders in their sole discretion)
sufficient to provide the Lenders with liens, subject only
to any valid then-existing liens, on all of EBOF's assets
to secure EBOF's obligations under the Confessions of
Judgment and the Transaction Documents on or before ten
(10) days after the Dismissal Date;
(3) failure of all Subsidiaries to execute security documents
(in form and substance acceptable to the Required Lenders
as determined by the Required Lenders in their sole
discretion) in favor of the Lenders subject only to any
valid then-existing liens, securing their respective
obligations under the Subsidiary Guaranty on or before ten
(10) days after the Dismissal Date;
(4) failure of EBOF and Subsidiaries to execute a term sheet
with the material terms of a restructuring (in form and
substance acceptable to the Required Lenders in their sole
discretion) (the "RESTRUCTURING TERM SHEET") on or before
thirty (30) days after the Dismissal Date;
(5) failure of EBOF and Subsidiaries to consummate the
transactions contemplated in the Restructuring Term Sheet
fully (as determined by the Required Lenders in their
reasonable discretion) ("RESTRUCTURING CONSUMMATION
DEADLINE") on or before one hundred and twenty (120) days
after the Dismissal Date;
(6) any action is commenced to void, avoid, invalidate,
subordinate, recharacterize, reduce or recover (in whole or
in part) any or all of the Collateral Documents, any claim
of any of the Lenders under any of the Notes or any of the
other Transaction Documents, any lien granted to secure any
such claim or any obligation under any of the Collateral
Documents or any of the Transaction Documents (including,
without limitation, the actions described in sections 5(b)
and (c) below), or any payment made in respect of such
claim or obligation; and
(7) EBOF or any Subsidiary grants or permits to exist any lien
not in existence as of the date of this Agreement on any of
its assets.
DRAFT 11/09/2007
(b) The Required Lenders can waive a Standstill Expiration Event under
section 3(a)(iv) (1)-(7) only by a writing signed by the Required
Lenders delivered to EBOF with written notice to all other Lenders.
(c) Any proceeds recovered by any Lender under any of the Collateral
Documents shall be held by such other Lender in trust for the Pro Rata
benefit of the other Lenders and distributed accordingly. The term
"PRO RATA" shall mean, as to any Lender, the ratio determined by
dividing (x) the face amount of Notes then held by such Lender by (y)
the face amount of Notes then held by all Lenders. This provision
shall survive termination of this Agreement.
(d) Nothing herein shall be deemed to prohibit any Lender from (i)
acquiring, holding, voting or disposing of any securities issued upon
the exercise of the Warrants or upon the conversion of the Notes, (ii)
exercising or refraining from exercising, the Warrants, (iii)
converting, or refraining from converting, the Notes, or (iv) taking
any action to compel EBOF to comply with any such exercise or
conversion.
(e) Notwithstanding anything contained in this Agreement to the contrary,
EBOF and Cranshire agree that (i) the Restrained Funds (as defined in
the Stipulation Directing Earth Biofuels, Inc. to Segregate and
Maintain Certain Funds as Adequate Protection for Cranshire Capital,
L.P. Until Further Notice of the Court that was previously filed with
the Bankruptcy Court) in the Segregated Account (as defined in the
Stipulation Directing Earth Biofuels, Inc. to Segregate and Maintain
Certain Funds as Adequate Protection for Cranshire Capital, L.P. Until
Further Notice of the Court that was previously filed with the
Bankruptcy Court) shall be released to Cranshire within 2 business
days after the Dismissal Date, (ii) to the extent necessary or
required, Cranshire shall be entitled to obtain from the Bankruptcy
Court such orders so releasing such funds to Cranshire and (iii) EBOF
shall not object to such release of the Restrained Funds.
4. RESTRUCTURING TRANSACTION. Until the occurrence of a Standstill
Expiration Event, each Lender expressly agrees that it shall be bound to
accept any Restructuring Transaction proposed by EBOF and accepted in
writing by the Required Lenders with written notice to all Lenders;
PROVIDED, HOWEVER, that no proposed Restructuring Transaction or any other
transaction or agreement with EBOF, its Subsidiaries or any of their
affiliates or with XxXxxxxxxx relating to the Transaction Documents shall
be approved or accepted by any Lender unless the transaction or agreement
offers the same consideration and the same terms and conditions to all
Lenders, with each such Lender's share of such consideration to be
determined on a Pro Rata basis, and no consideration is offered or given to
any person or entity in connection therewith other than the Lenders. The
Parties acknowledge that the Restructuring Transaction may be implemented
in stages. Nothing contained in this section, elsewhere in this Agreement
or in any Collateral Document shall, or shall be used to, impose on any
Lender any monetary obligation (including, without limitation, making any
loan, investing any capital, or making any other financial accommodation)
as a result of, or relating to, or arising out of the Bankruptcy Case or
the Restructuring Transaction without the prior written consent of such
Lender, which may
DRAFT 11/09/2007
be granted or withheld in such Lender's sole discretion. No Lender shall be
bound by any such obligation absent such prior written consent by it.
5. ACKNOWLEDGEMENT OF TOTAL DEBT.
(a) Subject only to section 6 below, EBOF, XxXxxxxxxx and the Subsidiaries
acknowledge that the aggregate amount due and owing from EBOF to the
Noteholders pursuant to the Transaction Documents is $100,651,173 (as
of September 28, 2007) (as set forth on Schedule B) plus fees, costs,
and expenses, and that such amount is immediately due and payable to
the Noteholders without set-off, counterclaim, deduction, offset or
defense (the "TOTAL DEBT").
(b) Subject only to section 6 below, EBOF, XxXxxxxxxx, and the
Subsidiaries shall not directly or indirectly object to, challenge,
contest or otherwise seek to invalidate or reduce (or support directly
or indirectly any other person or entity in any such objection,
challenge or contest) the existence, validity or amount of the Total
Debt, the obligations under the Transactions Documents or the
Collateral Documents or any lien granted to secure such obligations to
the extent such claims are held by or obligations are owed to the
Lenders.
(c) EBOF, XxXxxxxxxx and the Subsidiaries shall not directly or indirectly
seek to subordinate or recharacterize any claim of any Lender.
6. RESERVATION OF RIGHTS. The acknowledgement and covenants in section 5
above shall only apply with respect to the claims and liens that are held
by the Lenders. EBOF reserves all rights to challenge any claim held by any
Noteholder that is not a signatory to this Agreement.
7. AFTER ACQUIRED CLAIMS. In the event that a Lender acquires and continues to
hold the Notes and Warrants (the "EXCLUDED SECURITIES") under the
Transaction Document of a Noteholder that is not a signatory hereto (an
"EXCLUDED NOTEHOLDER"), such Excluded Securities acquired (and held) by
such Lender shall be deemed to be Notes and Warrants of such Lender
governed by the terms and conditions of this Agreement and the Collateral
Documents (and the benefits thereunder) as if such Excluded Securities were
held by such Lender as of the date of this Agreement (but only for so long
as such Excluded Securities are held by such Lender). The Pro Rata share of
any Lender that acquires Notes from an Excluded Noteholder (or that
transfers any portion of its Notes) shall be adjusted accordingly.
8. EFFECTIVE DATE. This Agreement and the Collateral Documents shall be
placed into escrow pursuant to an escrow agreement (the form of which is
attached hereto as Exhibit E) and shall be released from escrow and shall
become effective on the date that an order dismissing the Bankruptcy Case
(a "DISMISSAL ORDER") is entered on the docket provided that such order is
not stayed (the "DISMISSAL DATE"); PROVIDED, HOWEVER, that if the Dismissal
Date fails to occur on or before December 21, 2007 (or such later date as
may be agreed in writing by all Lenders prior to the expiration of such
date or dates) (a "FAILURE EVENT"), then, (a) EBOF shall immediately file a
notice to withdraw the
DRAFT 11/09/2007
Dismissal Motion (the "WITHDRAWAL NOTICE"), which the Lenders that are
Petitioning Creditors hereby authorize upon the occurrence of a Failure
Event (or if EBOF fails to do so, EBOF hereby authorizes the Lenders that
are Petitioning Creditors to do so on EBOF's behalf), and (b) this
Agreement and the Collateral Documents shall be null and void upon entry of
the Withdrawal Notice on the docket of the Bankruptcy Court, provided that
a Dismissal Order has not been previously docketed. If (i) the Dismissal
Motion is denied, then this Agreement and the Collateral Documents shall be
null and void or (ii) a Withdrawal Notice is filed before a Dismissal Order
(if any) is entered, then this Agreement and the Collateral Documents shall
be null and void as contemplated in clause (b) above, and, in each case, to
the fullest extent possible, each of the Parties shall be restored to the
position it held immediately before the Agreement Date. The Parties shall
cooperate to seek dismissal of the Bankruptcy Case as expeditiously as
possible and such cooperation agreement shall be effective upon execution
of this Agreement. Notwithstanding the foregoing, sections 1, 2, 7, 8-15,
and 17-20 shall be effective immediately upon execution of this Agreement
and such sections shall terminate and be of no further force or effect if
this Agreement and the Collateral Documents become null and void as
described above.
9. INTERIM PROTECTIONS. Between the date of execution of this Agreement and
the Dismissal Date, neither EBOF nor any of its Subsidiaries shall (a)
incur any debt or transfer any asset outside the ordinary course of
business, (b) grant any lien or permit any lien to arise on any of its
assets, or (c) otherwise take any action that would be inconsistent with,
or adverse in any way to, any of the terms of this Agreement or of any of
the Collateral Documents, as if such agreements were in full force and
effect, without the prior written consent of the Required Lenders.
10. GOVERNING LAW; JURISDICTION; JURY TRIAL. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement
shall be governed by the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of New York. Each Party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of New
York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each Party hereby irrevocably
waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof to such Party
at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
DRAFT 11/09/2007
HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
11. COUNTERPARTS. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party
and delivered to the other party; provided that a facsimile signature shall
be considered due execution and shall be binding upon the signatory thereto
with the same force and effect as if the signature were an original, not a
facsimile signature.
12. HEADINGS. The headings of this Agreement are for convenience of reference
and shall not form part of, or affect the interpretation of, this
Agreement.
13. RECITALS. Each of the Recitals is incorporated herein by this reference and
shall become part of the Agreement.
14. NO CONFLICT INTENDED. Any inconsistency between this Agreement and the
Exhibits attached hereto shall be resolved in favor of this Agreement.
15. INTEGRATION; EFFECT. This Agreement constitutes the entire agreement of the
Parties pertaining to the subject matter hereof and all prior negotiations
and representations relating thereto are merged herein. The terms and
conditions set forth in this Agreement are the product of joint
draftsmanship by all Parties, each being represented or having the
opportunity to be represented by counsel, and any ambiguities in this
Agreement or any documentation prepared pursuant to or in connection with
this Agreement shall not be construed against any of the parties because of
draftsmanship. This Agreement, is not intended to modify and does not
modify the rights, remedies and obligations of the signatories under the
Transaction Documents, except to the extent expressly set forth herein and
then only with respect to the Parties hereto.
16. PENDING LITIGATION. To the extent that any Lender and EBOF are currently
parties to an action on the Notes or other Transaction Documents, at the
request of such Lender, EBOF shall consent to the dismissal of such action
without prejudice and with each side to bear its own costs.
17. WAIVER OF ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF COMMON STOCK.
EBOF and the Lenders (as applicable) agree to waive the application of
section 7(a) of the Notes, section 6(e) of the Initial Bridge Warrants,
section 6(e) of the Second Bridge Warrants, and section 2(a) of the
Warrants (collectively, the "ANTI-DILUTION PROVISIONS") beginning on the
date hereof and continuing until the earlier of (i) the date that this
Agreement and the Collateral Documents becomes null and void pursuant to
section 8 of this Agreement; or (ii) the occurrence of a Standstill
Expiration Event (each, a "TERMINATION EVENT"). If a Termination Event
occurs, and upon such Termination Event occurring, the Anti-Dilution
Provisions shall apply retroactively to any dilutive issuances that occur
between the date hereof and the occurrence of such Termination Event.
DRAFT 11/09/2007
18. THIRD PARTY BENEFICIARIES. Unless expressly stated herein, this Agreement
shall be solely for the benefit of the Parties hereto and no other person
or entity shall be a third-party beneficiary hereof.
19. Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of, each Party and its respective successors and
assigns ("ASSIGNS"). In the case of an assignment or transfer of a Note,
the assignee or transferee acquiring any interest in the Note shall execute
and deliver to each Lender and EBOF (other than the respective assignor or
transferor) a written acknowledgment of receipt of a copy of this Agreement
and the written agreement by such person to be bound by the terms of this
Agreement.
20. NOTICES. Any written notice required to be given under this Agreement shall
be sent to the following by mail, electronic mail or facsimile, and shall
be deemed given upon such mailing and sending by facsimile:
If to Earth Biofuels, Xxxxxx XxXxxxxxxx, or the Subsidiaries:
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx XxXxxxxxxx
with a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to Castlerigg (to the extent it executes this Agreement):
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Cem Hacioglu (xxxxxxxxx@xxxxxxxxxxx.xxx)
Xxxxxxx Xxxxxxx (xxxxxxxx@xxxxxxxxxxx.xxx)
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
DRAFT 11/09/2007
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
(xxxxx.xxxxxxx@xxx.xxx)
Xxxxxxx X. Xxxxx, Esq.
(xxxxxxx.xxxxx@xxx.xxx)
If to Radcliffe (to the extent it executes this Agreement):
c/o RG Capital Management, L.P.
0 Xxxx Xxxxx - Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
(xxxxxxxxxxx@xxxxxxxxxxxxxx.xxx)
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(Xxxxxx.Xxxxx@xxxxxxxxxx.xxx)
If to Yorkville (the extent it executes this Agreement):
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
(xxxxxxx@xxxxxxxxxxxxxxxxx.xxx)
with a copy to:
Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: X. Xxxxxx XxXxxxxx, Esq.
(xxxxxx.xxxxxxxx@xxxxxxxxxx.xxx)
If to Cranshire (to the extent it executes this Agreement):
Xxxxxxxxx Traurig LLP
00 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DRAFT 11/09/2007
Attention: Xxxx Xxxxx, Esq. (xxxxxx@xxxxx.xxx)
Xxxxx Xxxxxxxxx (xxxxxxxxxx@xxxxx.xxx)
If to Evolution (the extent it executes this Agreement):
c/o Evolution Capital Management LLC
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000X
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Attention: Xxxxx X. Xxx (xxxxx.xxx@xxxxxxx.xxx)
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(xxxxxxx.xxxxxxx@xxx.xxx)
If to Kings Road (the extent it executes this Agreement):
c/o Polygon Investment Partners LP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X.X. Xxxxxxxxx
(xxxxxxxxxx@xxxxxxxxxx.xxx)
Xxxxxxx X. Xxxxx
(xxxxxx@xxxxxxxxxx.xxx)
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq. (xxxx.xxxxx@xx.xxx)
If to CVI (the extent it executes this Agreement):
c/o Heights Capital Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
DRAFT 11/09/2007
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx (Xxxxxxx.Xxxxxx@xxx.xxx)
with a copy to:
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq. (xxxxx@xxxxx.xxx)
If to Portside (the extent it executes this Agreement):
c/o Ramius Capital Group, L.L.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx (xxxxxx@xxxxxx.xxx)
Xxxxx Xxxx (xxxxx@xxxxxx.xxx)
Xxxx Xxxxxxx (xxxxxxxx@xxxxxx.xxx)
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
(xxxxxxxx@xxxxxxxxxx.xxx)
DRAFT 11/09/2007
IN WITNESS WHEREOF, the parties to this Agreement have caused their
respective signature page to this Interim Restructuring Agreement to be duly
executed as of the date first written above.
Earth Biofuels, Inc. Castlerigg Master Investments Ltd.
By: Xxxxxxx Asset Management Corp.
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Evolution Master Fund Ltd. SPC, Capital Ventures International
Segregated Portfolio M By: Heights Capital Management, Inc.
its authorized agent
By: By:
--------------------------------- ----------------------------------
Name: Name:
Title: Title:
Radcliffe SPC, Ltd. for and on behalf of YA Global Investments, L.P.
the Class A Convertible Crossover (formerly, Cornell Capital
Segregated Portfolio Partners, LP
By: RG Capital Management Company, By: Yorkville Advisors, LLC
LLC Its: General Partner
By: RGC Management Company, LLC
By: By:
--------------------------------- ----------------------------------
Name: Name:
Title: Title:
Cranshire Capital, LP Portside Growth and Opportunity Fund
By: By:
--------------------------------- ---------------------------------
Name: Name:
Title: Title:
Kings Road Investments Ltd.
By:
---------------------------------
Name:
Title:
DRAFT 11/09/2007
IN WITNESS WHEREOF, the parties to this Agreement have caused their
respective signature page to this Interim Restructuring Agreement to be duly
executed as of the date first written above.
-------------------------------------
Name
-------------------------------------
Signature
-------------------------------------
Address
STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX XXXXXXXXXX, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, and in the capacity therein
stated.
Given under my hand and seal of office, this ____ day of __________,
2007.
(Seal) Notary Public, State of Texas
(Notary's Name Typed or Printed)
My Commission Expires:
DRAFT 11/09/2007
IN WITNESS WHEREOF, the parties to this Agreement have caused their
respective signature page to this Interim Restructuring Agreement to be duly
executed as of the date first written above.
Earth LNG, Inc. Earth Biofuels, Technology Co, LLC
d/b/a Advanced Biofuels Technology,
LLC
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Applied LNG Technologies, USA, LLC Earth Biofuels Distribution Co.
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Alternative Dual Fuels, Inc. Earth Biofuels of Cordele, LLC
d/b/a Apollo Leasing, Inc.
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Arizona LNG, LLC B20 Customs LLC
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Fleet Star, Inc. Earth Biofuels Operating, Inc.
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Xxxxxx Biofuels, LLC Earth Biofuels Retail Fuels, Co.
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
DRAFT 11/09/2007
Earth Ethanol of Washington LLC Earth Ethanol, Inc.
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
DRAFT 11/09/2007
SCHEDULE A
SCHEDULE OF EBOF SUBSIDIARIES
SUBSIDIARY
-----------------------------
Earth LNG, Inc.
Applied LNG Technologies, USA, LLC
Alternative Dual Fuels, Inc.
d/b/a Apollo Leasing, Inc.
Arizona LNG, LLC
Fleet Star, Inc.
Xxxxxx Biofuels, LLC
Earth Biofuels, Technology Co, LLC
d/b/a Advanced Biofuels Technology, LLC
Earth Biofuels Distribution Co
Earth Biofuels of Cordele, LLC
B20 Customs LLC
Earth Biofuels Operating, Inc.
Earth Biofuels Retail Fuels, Co.
Earth Ethanol, Inc.
Earth Ethanol of Washington LLC
DRAFT 11/09/2007
SCHEDULE B
SCHEDULE OF AMOUNTS DUE AND OWING
---------------------------------
AMOUNT DUE AS OF
LENDER SEPTEMBER 28, 2007
CASTLERIGG MASTER INVESTMENTS LTD. $21,760,827
EVOLUTION MASTER FUND LTD. SPC, SEGREGATED $22,036,827
PORTFOLlO M
KINGS ROAD INVESTMENTS LTD. $19,162,458
CAPITAL VENTURES INTERNATIONAL $15,526,233
RADCLIFFE SPC, LTD. FOR AND ON BEHALF OF THE CLASS A $9,581,229
CONVERTIBLE CROSSOVER SEGREGATED PORTFOLIO
YA GLOBAL INVESTMENTS, L.P. (FORMERLY, CORNELL CAPITAL $5,876,738
PARTNERS, L.P.)
PORTSIDE GROWTH & OPPORTUNITY FUND $3,832,492
CRANSHIRE CAPITAL LP $2,874,369
TOTAL $100,651,173
DRAFT 11/09/2007
EXHIBIT A
RELEASE
DRAFT 11/09/2007
EXHIBIT B
XXXXXXXXXX GUARANTY
DRAFT 11/09/2007
EXHIBIT C
CONFESSIONS OF JUDGMENT
DRAFT 11/09/2007
EXHIBIT D
SUBSIDIARY GUARANTY
DRAFT 11/09/2007
EXHIBIT E
ESCROW AGREEMENT
