AMENDMENT NO. 1
Exhibit 10.95
AMENDMENT
NO. 1
This
AMENDMENT NO. 1, dated as of October 5, 2007 (the “Amendment”), is
entered into by and among Xxxxxx Biofuels, LLC, an Oklahoma limited liability
company (the “Borrower”), the other
persons designated as “Loan Parties” on the signature pages hereto (the “Loan Parties”), and
Fourth Third LLC, a Delaware corporation, as agent for the Lenders (the “Agent”) and as a
Lender.
WHEREAS,
Borrower, the other Loan Parties, Lenders (as defined therein) and Agent are
party to a certain Credit Agreement, dated as of March 23, 2007 (as heretofore
amended, restated, supplemented or otherwise modified, the “Credit Agreement”);
all capitalized terms defined in the Credit Agreement and not otherwise defined
herein shall have the meanings assigned thereto in the Credit Agreement);
and
WHEREAS,
Borrower has requested that Lenders agree (i) to extend an additional term loan
in the amount of $950,000 to Borrower, (ii) to consolidate such additional term
loan with the Initial Loan (as hereinafter defined) into a single term loan in
the aggregate principal amount of $9,950,000 and (iii) to amend the Credit
Agreement in certain respects as set forth below.
WHEREAS,
Lenders are willing to agree to such requests and enter into this Amendment upon
the terms and conditions provided herein.
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, Borrower, the other Loan Parties, Lenders and Agent
agree as follows:
SECTION
1.
ADDITIONAL DEFINED
TERMS
The
capitalized terms set forth in Section 2(a) below
shall have the meanings when used herein as set forth therein.
SECTION
2.
AMENDMENTS
Subject
to the satisfaction of the conditions to effectiveness referred to in Section 3 below,
Borrower, the other Loan Parties, Lenders and Agent agree that the Credit
Agreement is hereby amended as follows:
(a) Section 1.1 of the
Credit Agreement is amended by adding each of the following definitions in its
proper alphabetical place:
“‘Amendment No. 1’
means Amendment No. 1, dated as of October 5, 2007, to this
Agreement.”
“‘Amendment No. 1 Effective
Date’ means the “Effective Date” as such term is defined in Amendment No.
1.”
“Amendment No. 1 Fee”
means the $200,000 fee payable in cash by Borrower to Agent on the Amendment No.
1 Effective Date."
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“‘Earth LNG Interest
Reserve’ means the interest reserve established pursuant to Section 2.4.2 of the
Earth LNG Credit Agreement.”
“‘Initial Loan’ has the
meaning provided in Section
2.1(a).”
“‘Intercompany Note’
has the meaning provided in Section
7.1(n).”
“‘Interest Reserve Borrower
Debt’ means Debt of Borrower to Earth LNG evidenced by an Intercompany
Note incurred by Borrower as a result of application of amounts in the Earth LNG
Interest Reserve to interest accrued hereunder.”
“‘Interest Reserve Earth LNG
Debt’ means Debt of Earth LNG evidenced by an intercompany note by Earth
LNG to Borrower incurred by Earth LNG as a result of application of amounts in
the Interest Reserve Account to interest accrued under the Earth LNG Credit
Agreement.”
“‘Term Loan B’ has the
meaning provided in Section
2.1(b).”
“‘Term Loan B
Commitment’ means a commitment to make a loan pursuant to Section 2.1(b) on the
Amendment No. 1 Effective Date in the aggregate principal amount of
$700,000. The Term Loan B Commitment shall terminate upon the making
of the Term Loan B.”
(b) The
definition of “Commitment” set forth
in Section 1.1
of the Credit Agreement is amended and restated in its entirety as
follows:
“‘Commitment’ means, as
to any Lender, such Lender’s Pro Rata Share of the Loan Commitment and the Term
Loan B Commitment.”
(c) The
definition of “Loan” set forth in
Section 1.1 of
the Credit Agreement is amended and restated in its entirety as
follows:
“‘Loan’ has the meaning
provided in Section
2.1(b).”
(d) The
definition of “Loan
Commitment” set forth in Section 1.1 of the
Credit Agreement is amended by replacing the phrase “upon the making of the
Loan” appearing therein with the phrase “upon the making of the
Initial
Loan".
(e) Section 2.1 of
the Credit Agreement is hereby amended and restated in its entirety as
follows:
“2.1 Commitments.
(a) A
term loan was made in Pro Rata Shares by the Lenders on March 23, 2007 in the
original principal amount of $9,000,000 (the “Initial
Loan”). As of the Closing Date, the outstanding principal
balance of the Initial Loan is $9,000,000.
(b) On
the terms and subject to the conditions of this Agreement, each Lender,
severally and for itself alone, agrees to lend to Borrower on the Amendment No.
1 Effective Date such Lender’s applicable Pro Rata Share of the Term Loan B
Commitment (the “Term
Loan B”). Upon such advance of the Term Loan B, the original
principal amount of the Term Loan B and the outstanding principal balance of the
Initial Loan shall be combined and consolidated into one term loan (the “Loan”)
in an aggregate principal amount of $9,950,000. Any portion of the
Loan which is repaid or prepaid, in whole or in part, may not be
reborrowed. The proceeds of the Term Loan
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B shall
be disbursed to the Interest Reserve Account in accordance with the terms of
Section
2.4.2(b)(iii).”
(f) Section 2.4.1 of the
Credit Agreement is amended by inserting the following text immediately prior to
the last sentence thereof: “Effective as of the Amendment No. 1 Effective Date,
Required Lenders rescind the application of the Default Rate to the Obligations
(as such term is defined in Amendment No. 1), and Agent and Required Lenders
shall not request the application of or apply the Default Rate as a result of
any of the Continuing Defaults; provided, that the
foregoing shall not affect the rights of Agent or Required Lenders to request
the application of the Default Rate to the Obligations as a result of any Event
of Default other than the Continuing Defaults.”
(g) Section 2.4.2 of the
Credit Agreement is amended by (i) replacing the phrase “On or prior to the
Closing Date” appearing in paragraph (b) thereof with the phrase “Subject
to clause (b)(v) below, on or prior to the Closing Date”, (ii) replacing the
word “Omitted” appearing in clause (b)(iii) thereof with the following text: “On
the Amendment No. 1 Effective Date, Borrower shall deposit or cause to be
deposited in the Interest Reserve Account from the proceeds of the Term Loan B
in immediately available funds an amount equal to $950,000.” and (iii) amending
and restating clause (b)(iv) thereof in its entirety as follows:
“Agent
shall withdraw available funds in the Interest Reserve Account on each Interest
Payment Date and apply same to the payment of interest hereunder or to interest
owing under the Earth LNG Credit Agreement. In the event that Agent
shall apply any funds from the Interest Reserve Account to interest owing under
the Earth LNG Credit Agreement, such amount shall constitute Interest Reserve
Earth LNG Debt. In the event that Agent is prevented from withdrawing
any amount from the Interest Reserve Account for any reason, or in the event
that available funds on deposit in the Interest Reserve Account are insufficient
to pay interest due hereunder on such Interest Payment Date (including by virtue
of application of amounts in the Interest Reserve Account to interest accrued
under the Earth LNG Credit Agreement), Borrower shall nonetheless be required to
make the applicable payment of interest as otherwise required
hereunder. Amounts deposited in the Interest Reserve Account shall be
invested by the Agent at the direction of the Borrower, in Investments permitted
by Section
7.11, so long as Agent has a first priority security interest therein and
any such investment can be liquidated so as to pay without penalty all interest
that will become payable during the applicable Interest Reserve Period; provided that the
investment of such amounts shall be controlled solely by the Agent during the
continuance of any Event of Default. The provisions of this Section 2.4.2(b)(iv)
shall supersede and replace the terms of that certain Letter Agreement, dated as
of August 8, 2007, between Agent and Loan Parties, and such Letter Agreement
shall have no further force or effect.”
(h) Sections 5.6, 5.8, 5.9, 5.13, 5.14 and 5.15 of the Credit
Agreement are amended by replacing the text “Closing Date” in each instance in
which it appears therein with the text “Closing Date and the Amendment No. 1
Effective Date”.
Section
6.8 of the Credit
Agreement is amended by (i) replacing the text "Closing Date" appearing in
paragraph (b) thereof with the text "Amendment No. 1 Effective Date" and (ii)
adding the following at the end of such section: "Within thirty (30) days
following the Amendment No. 1 Effective Date, the Borrower shall execute and
deliver an amendment to the Mortgage, dated as of March 23, 2007, by Borrower to
Agent, in form and substance satisfactory to Agent, to the extent necessary in
the opinion of Agent to insure that the Term Loan B and the "Term Loan B" being
made to Earth LNG, Inc. is secured by such Mortgage and to obtain at Borrower's
expense, an endorsement, in form and substance satisfactory to Agent, to
the title insurance policy issued to Agent as to such Mortgage, which among
other things insures that such Mortgage secures such Term Loan B and `Term Loan
B"'.
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(i) Section 7.1 of the
Credit Agreement is amended by replacing the period at the end of paragraph (m)
thereof with the text “; and” and inserting the following new paragraph (n)
immediately following paragraph (m) thereof: “(n)Interest Reserve Borrower Debt;
provided, however, that
Borrower shall have executed and delivered to Earth LNG, on the Amendment No. 1
Effective Date, the sole originally executed counterpart of a demand note (the
“Intercompany
Note”) to evidence any such Interest Reserve Borrower Debt owing at any
time by Borrower to Earth LNG, which Intercompany Note shall be in form and
substance reasonably satisfactory to Agent and shall be pledged and delivered by
Earth LNG to Agent as additional collateral security for the Obligations and
endorsed by Earth LNG to the order of Agent.”
(j) Section 7.7 of the
Credit Agreement is amended by (i) replacing the phrase “Use the proceeds of the
Loan” appearing therein with the phrase “Use the proceeds of the Initial Loan”
and (ii) inserting the phrase “use the proceeds of the Term Loan B for deposit
into the Interest Reserve Account,” immediately following the Amendment No. 1
Fee” immediately following the phrase “to pay any financing fees and expenses associated herewith,”
appearing therein.
(k) The
Credit Agreement is amended by adding as Schedules 4.1 through 7.15 the schedules attached
hereto as Schedules 4.1 through 7.15.
SECTION
3.
CONDITIONS TO
EFFECTIVENESS
This
Amendment shall become effective on the date (the “Effective Date”) on
which the following conditions are satisfied in full:
(a) Agent
shall have received one or more counterparts of this Amendment executed and
delivered by Borrower, the other Loan Parties, Agent and Lenders;
(b) Agent
shall have received one or more counterparts of the Consent and Reaffirmation in
the form of Exhibit
A hereto, executed and delivered by each of the Guarantors named
therein;
(c) Agent
shall have received an amendment and restatement, each in the form of Exhibit B hereto, of
each Note held by a Lender having a Term Loan B Commitment, each dated the
Amendment No. 1 Effective Date and executed and delivered by
Borrower;
(d) Agent
shall have received the Intercompany Note, duly executed and delivered by
Borrower and pledged and endorsed by Earth LNG to the order of Agent,
accompanied by such instruments of transfer or assignment duly executed in blank
as specified by Agent;
(e) Agent
shall have received received (i) in immediately available funds the Amendment
No. 1 Fee and (ii) evidence satisfactory to Agent that all Legal Costs of Agent
incurred in connection with this Amendment and the other Loan Documents shall
have been paid;
(f) except
for the Continuing Defaults (as hereinafter defined) no Default or Event of
Default is continuing or would result after giving effect to this Amendment;
and
(g) except
for those representations and warranties that are not true and correct as a
result of the Continuing Defaults, all representations and warranties of the
Loan Parties contained in this Amendment and in the Credit Agreement shall be
true and correct in all material respects as of the date
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(h) hereof
and as of the Effective Date, except to the extent such representations and
warranties relate to a specific date.
SECTION
4.
NO WAIVER ; LIMITATION
ON SCOPE
(a) Borrower
hereby acknowledges that the “Subject Events of Default” (as defined in that
certain Reservation of Rights Letter, dated as of May 23, 2007, from Agent to
Loan Parties) are continuing. Further, Borrower has informed Agent of
the following:
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(1)
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on
July 11, 2007, an involuntary bankruptcy proceeding was commenced against
Parent in the United States Bankruptcy Court, District of Delaware, and
such proceeding has remained undismissed for longer than 60
days. Such proceeding and passage of time without dismissal
constitutes an Event of Default under Section 8.1.3
of the Credit Agreement (the “Bankruptcy
Default”); and
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(2)
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Earth
LNG has made distributions to Parent in contravention of Section 7.4 of
the Credit Agreement. The payment of such distributions
constitutes an Event of Default under Section 8.1.4
of the Credit Agreement (the “Restricted Payment
Default”); and
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(3)
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Borrower
was not in compliance with the covenants set forth in Section 7.14 of
the Credit Agreement for the Fiscal Quarter ended June 30, 2007 (the
“Financial
Covenant Default” and together with the Subject Events of Default,
the Bankruptcy Default and the Restricted Payment Default, collectively,
the “Continuing
Defaults”).
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Agent
hereby reserves all rights and remedies of Agent and Lender arising from the
occurrence and continuation of the Continuing Defaults, including, without
limitation, the right to declare the Loan and all other Obligations to be
immediately due and payable. Nothing contained in this Amendment,
including the making of the Term Loan B, shall be deemed a waiver by Agent or
any Lender of its respective rights and remedies against Borrower or any other
Loan Party for the Continuing Defaults or for any other existing or future
Defaults or Events of Default.
(b) Except as
expressly amended hereby and except as provided in paragraph (a) above, all of
the representations, warranties, terms, covenants and conditions of the Loan
Documents shall remain in full force and effect in accordance with their
respective terms. The amendments set forth herein shall be limited
precisely as provided for herein and shall not be deemed to be waivers of,
amendments of, consents to or modifications of any term or provision of the Loan
Documents or any other document or instrument referred to therein or of any
transaction or further or future action on the part of Borrower or any other
Loan Party requiring the consent of Agent or Lenders except to the extent
specifically provided for herein.
SECTION
5.
MISCELLANEOUS
(a) Borrower
and the other Loan Parties hereby represent and warrant that this Amendment has
been duly authorized and executed by Borrower and each of the other Loan Parties
and that the Credit Agreement, as amended by this Amendment, is the legal, valid
and binding obligation of Borrower and the other Loan Parties party thereto,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
law or in equity).
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(b) Each of
Borrower and the other Loan Parties repeats and restates the representations and
warranties of such Person contained in the Credit Agreement as of the date of
this Amendment and as of the Effective Date, except to the extent
such representations and warranties relate to a specific date; provided that
references to the Credit Agreement or “this Agreement” in such representations
and warranties shall be deemed to be references to the Credit Agreement as
amended pursuant to this Amendment.
(c) Borrower
and the other Loan Parties hereby ratify and confirm the Credit Agreement as
amended hereby, and agree that, as amended hereby, the Credit Agreement remains
in full force and effect.
(d) Borrower
and the other Loan Parties agree that the Loan Documents to which each such
Person is a party remain in full force and effect (as amended hereby in the case
of the Credit Agreement) notwithstanding the execution and delivery of this
Amendment and that nothing contained in this Amendment shall constitute a
defense to the enforcement of any Loan Document.
(e) This
Amendment may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which counterparts together shall constitute but one and the same
instrument.
(f) All
references in the Loan Documents to the “Credit Agreement” and in the Credit
Agreement as amended hereby to “this Agreement,” “hereof,” “herein” or
the like shall mean and refer to the Credit Agreement as amended by this
Amendment (as well as by all subsequent amendments, restatements, modifications
and supplements thereto).
(g) THIS
AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
(h) This
Amendment is a “Loan Document” and each of the provisions set forth in Section 10 (Miscellaneous) of the
Credit Agreement applies to this Amendment to the same extent such provision
applies to any other Loan Document.
(i) Each of
the following provisions of the Credit Agreement is hereby incorporated herein
by this reference with the same effect as though set forth in its entirety
herein, mutatis
mutandis, and as if “this Agreement” in any such provision read “this
Amendment”: Section
10.2 (Notices), Section 10.10
(Captions), Section 10.13
(Severability), Section 10.14
(Entire Agreement), Section 10.15
(Successors and Assigns), Section 10.17
(Forum Selection; Consent to Jurisdiction) and Section 10.18
(Waiver of Jury Trial).
[SIGNATURE
PAGE FOLLOWS]
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WITNESS the due execution
hereof by the respective duly authorized officers of the undersigned as of the
date first written above.
BORROWER:
XXXXXX BIOFUELS, LLC
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
LOAN PARTIES:
EARTH BIOFUELS, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
APPLIED LNG TECHNOLOGIES USA,
L.L.C.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
FLEET STAR, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
APOLLO LEASING, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
ARIZONA LNG, L.L.C.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
EARTH LNG, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
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AGENT
AND LENDERS:
FOURTH
THIRD LLC,
as Agent
and a Lender
By: /s/ Xxxx X.
Xxxxx
Name: Xxxx
X. Xxxxx
Title: Authorized
Signatory
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EXHIBIT
A
CONSENT AND
REAFFIRMATION
Each of the undersigned (“Guarantors”) hereby
(i) acknowledges receipt of a copy of the foregoing Amendment No. 1; (ii)
consents to Borrower’s execution and delivery thereof and approves and consents
to the transactions contemplated thereby; (iii) agrees to be bound thereby; and
(iv) affirms that nothing contained therein shall modify or diminish in any
respect whatsoever its obligations under the Guarantee and Collateral Agreement
and the other Loan Documents to which it is a party and reaffirms that such
Guarantee and Collateral Agreement is and shall continue to remain in full force
and effect. This acknowledgement by Guarantors is made and delivered
to induce Agent and Lenders to enter into Amendment No. 1, and Guarantors
acknowledge that Agent and Lenders would not enter into Amendment No. 1 in the
absence of the acknowledgements contained herein. Although Guarantors
have been informed of the matters set forth herein and have acknowledged and
agreed to same, Guarantors understand that Agent and Lenders have no obligation
to inform Guarantors of such matters in the future or to seek Guarantors’
acknowledgment or agreement to future amendments or waivers, and nothing herein
shall create such a duty. Capitalized terms used herein without
definition shall have the meanings given to such terms in the Amendment No. 1 to
which this Consent is attached or in the Credit Agreement referred to therein,
as applicable.
IN WITNESS WHEREOF, the undersigned
have executed this Consent and Reaffirmation on and as of the date of Amendment
No. 1.
EARTH BIOFUELS, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
APPLIED LNG TECHNOLOGIES USA,
L.L.C.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
FLEET STAR, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
APOLLO LEASING, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
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ARIZONA
LNG, L.L.C.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
EARTH LNG, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
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WAIVER
AND AMENDMENT NO. 2
This
WAIVER AND AMENDMENT NO. 2, dated as of October 5, 2007 (the “Amendment”), is
entered into by and among Earth LNG, Inc., a Texas corporation (the “Borrower”), the other
persons designated as “Loan Parties” on the signature pages hereto (the “Loan Parties”), and
Fourth Third LLC, a Delaware corporation, as agent for the Lenders (the “Agent”) and as a
Lender.
WHEREAS,
Borrower, the other Loan Parties, Lenders (as defined therein) and Agent are
party to a certain Credit Agreement, dated as of February 28, 2007 (as
heretofore amended, restated, supplemented or otherwise modified, the “Credit Agreement”);
all capitalized terms defined in the Credit Agreement and not otherwise defined
herein shall have the meanings assigned thereto in the Credit Agreement);
and
WHEREAS,
Section
2.4.2(b)(ii) of the Credit Agreement provides that upon the occurrence of
an Event of Default under Section 7.14 of the
Credit Agreement for the Fiscal Quarter ending June 30, 2007, Borrower shall
increase the amount on deposit in the Interest Reserve Account to an amount
equal to the interest that will accrue on the unpaid principal balance of the
Loan during the period commencing on September 1, 2007 and ending on February
28, 2008; and
WHEREAS,
Borrower has requested that Lenders agree (i) to waive compliance with Section 2.4.2(b)(ii)
of the Credit Agreement, (ii) to extend an additional term loan in the amount of
$3,750,000 to Borrower, (iii) to consolidate such additional term loan with the
Initial Loan (as hereinafter defined) into a single term loan in the aggregate
principal amount of $18,750,000 and (iv) to amend the Credit Agreement in
certain respects as set forth below.
WHEREAS,
Lenders are willing to agree to such requests and enter into this Amendment upon
the terms and conditions provided herein.
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, Borrower, the other Loan Parties, Lenders and Agent
agree as follows:
SECTION
1.
ADDITIONAL DEFINED
TERMS
The
capitalized terms set forth in Section 2(a) below
shall have the meanings when used herein as set forth therein.
SECTION
2.
WAIVER AND
AMENDMENTS
Subject
to the satisfaction of the conditions to effectiveness referred to in Section 3 below,
Borrower, the other Loan Parties, Lenders and Agent agree that the Credit
Agreement is hereby amended as follows:
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(a)
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(i) Effective
as of the Effective Date (as defined below), Lenders hereby waive
compliance with Section
2.4.2(b)(ii) of the
Credit Agreement.
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(ii)
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Anything
herein to the contrary notwithstanding, (i) Lenders’ waiver contained in
Section
2(a)(i) is
subject to the satisfaction of the conditions set forth in Section 3 hereof, (ii)
such waiver only applies to the specific matters referred to in Section 2(a)(i) and shall
not be applicable to any other circumstance, including, without
limitation, any Default and (iii) Lenders and Agent reserve, and Borrower
acknowledges and agrees that Lenders and Agent reserve, any and all rights
arising from the Loan Documents, other than as specifically set forth
in Section
2(a)(i).
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(b)
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Section 1.1 of
the Credit Agreement is amended by adding each of the following
definitions in its proper alphabetical
place:
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“‘Amendment No. 2’
means Amendment No. 2, dated as of October 5, 2007, to this
Agreement.”
“‘Amendment No. 2 Effective
Date’ means the “Effective Date” as such term is defined in Amendment No.
2.”
“‘Amendment No. 2 Fee’
means the $800,000 fee payable in cash by Borrower to Agent on the Amendment No.
2 Effective Date.”
“‘Xxxxxx Interest
Reserve’ means the interest reserve established pursuant to Section 2.4.2 of the
Xxxxxx Credit Agreement.”
“‘Initial Loan’ has the
meaning provided in Section
2.1(a).”
“‘Intercompany Note’
has the meaning provided in Section
7.1(j).”
“‘Interest Reserve Borrower
Debt’ means Debt of Borrower to Xxxxxx evidenced by an Intercompany Note
incurred by Borrower as a result of application of amounts in the Xxxxxx
Interest Reserve to interest accrued hereunder.”
“‘Interest Reserve Xxxxxx
Debt’ means Debt of Xxxxxx evidenced by an intercompany note by Xxxxxx to
Borrower incurred by Xxxxxx as a result of application of amounts in the
Interest Reserve Account to interest accrued under the Xxxxxx Credit
Agreement.”
“‘Reverse Merger
Transaction’ means the merger of Borrower with and into a public company
(or similar transaction) on terms and conditions and pursuant to arrangements
satisfactory in all respects to, and that have been approved by,
Agent. The inclusion of this definition does not constitute consent
of Agent or any Lender to the Reverse Merger or any other transaction otherwise
prohibited by this Agreement.”
“‘Term Loan B’ has the
meaning provided in Section
2.1(b).”
“‘Term Loan B
Commitment’ means a commitment to make a loan pursuant to Section 2.1(b) on the
Amendment No. 2 Effective Date in the aggregate principal amount of
$3,750,000. The Term Loan B Commitment shall terminate upon the
making of the Term Loan B.”
(c) The
definition of “Commitment” set forth
in Section 1.1
of the Credit Agreement is amended and restated in its entirety as
follows:
“‘Commitment’ means, as
to any Lender, such Lender’s Pro Rata Share of the Loan Commitment and the Term
Loan B Commitment.”
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The
definition of “Loan” set forth in
Section 1.1 of
the Credit Agreement is amended and restated in its entirety as
follows:
“‘Loan’ has the meaning
provided in Section
2.1(b).”
(d) The
definition of “Loan
Commitment” set forth in Section 1.1 of the
Credit Agreement is amended by replacing the phrase “upon the making of the
Loan” appearing therein with the phrase “upon the making of the Initial
Loan."
(e) Section 2.1 of
the Credit Agreement is hereby amended and restated in its entirety as
follows:
“2.1 Commitments.
(a) A
term loan was made in Pro Rata Shares by the Lenders on February 28, 2007 in the
original principal amount of $15,000,000 (the “Initial
Loan”). As of the Closing Date, the outstanding principal
balance of the Initial Loan is $15,000,000.
(b) On
the terms and subject to the conditions of this Agreement, each Lender,
severally and for itself alone, agrees to lend to Borrower on the Amendment No.
2 Effective Date such Lender’s applicable Pro Rata Share of the Term Loan B
Commitment (the “Term
Loan B”). Upon such advance of the Term Loan B, the original
principal amount of the Term Loan B and the outstanding principal balance of the
Initial Loan shall be combined and consolidated into one term loan (the “Loan”)
in an aggregate principal amount of $18,750,000. Any portion of the
Loan which is repaid or prepaid, in whole or in part, may not be
reborrowed. A portion of the proceeds of the Term Loan B shall be
disbursed to the Interest Reserve Account in accordance with the terms of Section
2.4.2(b)(iii), and the remainder of the proceeds of the Term Loan B shall
be disbursed to a deposit account of Borrower with JPMorgan Chase Bank, N.A.
specified by Borrower in writing to Agent.”
(f) Section 2.4.1 of the
Credit Agreement is amended by adding the following text immediately prior to
the last sentence thereof: “Effective as of the Amendment No. 2 Effective Date,
Required Lenders rescind the application of the Default Rate to the Obligations
(as such term is defined in Amendment No. 2), and Agent and Required Lenders
shall not request the application of or apply the Default Rate as a result of
any of the Continuing Defaults; provided, that the
foregoing shall not affect the rights of Agent or Required Lenders to request
the application of the Default Rate to the Obligations as a result of any Event
of Default other than the Continuing Defaults.”
(g) Section 2.4.2 of the
Credit Agreement is amended by (i) replacing the phrase “On or prior to the
Closing Date” appearing in paragraph (b) thereof with the phrase “Subject to
clause (b)(v) below, on or prior to the Closing Date”, (ii) replacing the word
“Omitted” appearing in clause (b)(iii) thereof with the following text: “On the
Amendment No. 2 Effective Date, Borrower shall deposit or cause to be deposited
in the Interest Reserve Account from the proceeds of the Term Loan B in
immediately available funds an amount equal to $1,450,000.” and (iii) amending
and restating clause (b)(iv) thereof in its entirety as follows:
“Agent
shall withdraw available funds in the Interest Reserve Account on each Interest
Payment Date and apply same to the payment of interest hereunder or to interest
owing under the Xxxxxx Credit Agreement. In the event that Agent
shall apply any funds from the Interest Reserve Account to interest owing under
the Xxxxxx Credit Agreement, such amount shall constitute Interest Reserve
Xxxxxx Debt. In the event that Agent is prevented from withdrawing
any amount from the Interest Reserve Account for any reason, or in the event
that available funds on deposit in the Interest Reserve Account are insufficient
to pay interest due hereunder on
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such
Interest Payment Date (including by virtue of application of amounts in the
Interest Reserve Account to interest accrued under the Xxxxxx Credit Agreement),
Borrower shall nonetheless be required to make the applicable payment of
interest as otherwise required hereunder. Amounts deposited in the
Interest Reserve Account shall be invested by the Agent at the direction of the
Borrower, in Investments permitted by Section 7.11, so long
as Agent has a first priority security interest therein and any such investment
can be liquidated so as to pay without penalty all interest that will become
payable during the applicable Interest Reserve Period; provided that the
investment of such amounts shall be controlled solely by the Agent during the
continuance of any Event of Default. The provisions of this Section 2.4.2(b)(iv)
shall supersede and replace the terms of that certain Letter Agreement, dated as
of August 8, 2007, between Agent and Loan Parties, and such Letter Agreement
shall have no further force or effect.”
(h) Section 2.6.1 of the
Credit Agreement is amended by adding the following text immediately following
the text “and payment of the Prepayment Amount” appearing therein: “provided, that if any
prepayment shall be made concurrently or substantially concurrently with the
consummation of the Reverse Merger Transaction, the Prepayment Amount payable in
connection therewith shall be reduced by the amount of the Amendment No. 2 Fee;
provided, further, that nothing
contained in this Section 2.6.1 shall
be deemed to constitute a consent by any Lender to the Reverse Merger
Transaction.”
(i) Sections 5.6, 5.8, 5.9, 5.13, 5.14 and 5.15 of the Credit
Agreement are amended by replacing the text “Closing Date” in each instance in
which it appears therein with the text “Closing Date and the Amendment No. 2
Effective Date”.
(j) Section 6.8 of the Credit Agreement is amended by
(i) replacing the text "Closing Date" appearing in paragraph (b) thereof with
the text "Amendment No. 2 Effective Date" and (ii) adding the following at the
end of such section: "Within thirty (30) days following the Amendment No. 2
Effective Date, the Borrower shall execute and deliver an amendment to the
Mortgage, dated as of February 28, 2007 (as heretofore amended), by Borrower to
Agent, in form and substance satisfactory to Agent, to the extent necessary in
the opinion of Agent to insure that the Term Loan B and the `Term Loan B'
being made to Xxxxxx Biofuels, LLC is secured by such Mortgage and to
obtain at Borrower's expense, an endorsement, in form and substance
satisfactory to Agent, to the title insurance policy issued to Agent as to such
Mortgage, which among other things insures that such Mortgage secures such Term
Loan B and `Term Loan B"'.
(k) Section 7.1 of the
Credit Agreement is amended by replacing the word “omitted” appearing in
paragraph (j) thereof with the following text: “Interest Reserve Borrower Debt;
provided, however, that
Borrower shall have executed and delivered to Xxxxxx, on the Amendment No. 2
Effective Date, the sole originally executed counterpart of a demand note (the
“Intercompany
Note”) to evidence any such Interest Reserve Borrower Debt owing at any
time by Borrower to Xxxxxx, which Intercompany Note shall be in form and
substance reasonably satisfactory to Agent and shall be pledged and delivered by
Xxxxxx to Agent as additional collateral security for the Obligations and
endorsed by Xxxxxx to the order of Agent.”
(l) Section 7.7 of the
Credit Agreement is amended by (i) replacing the phrase “Use the proceeds of the
Loan” appearing therein with the phrase “Use the proceeds of the Initial Loan”
and (ii) inserting the phrase “use the proceeds of the Term Loan B for deposit
into the Interest Reserve Account
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(m) and to
pay certain fees and expenses, to pay the Amendment No. 2 Fee,” immediately
following the phrase “to pay any financing fees and expenses associated
herewith,” appearing therein.
(n) The
Credit Agreement is amended by adding as Schedules 4.1 through 7.15 the schedules attached
hereto as Schedules 4.1 through 7.15.
SECTION
3.
CONDITIONS TO
EFFECTIVENESS
This
Amendment shall become effective on the date (the “Effective Date”) on
which the following conditions are satisfied in full:
(a) Agent
shall have received one or more counterparts of this Amendment executed and
delivered by Borrower, the other Loan Parties, Agent and Lenders;
(b) Agent
shall have received one or more counterparts of the Consent and Reaffirmation in
the form of Exhibit
A hereto, executed and delivered by each of the Guarantors named
therein;
(c) Agent
shall have received an amendment and restatement, each in the form of Exhibit B hereto, of
each Note held by a Lender having a Term Loan B Commitment, each dated the
Amendment No. 2 Effective Date and executed and delivered by
Borrower;
(d) Agent
shall have received the Intercompany Note, duly executed and delivered by
Borrower and pledged and endorsed by Xxxxxx to the order of Agent, accompanied
by such instruments of transfer or assignment duly executed in blank as
specified by Agent;
(e) Agent
shall have received (i) in immediately available funds the Amendment No. 2 Fee
and (ii) evidence satisfactory to Agent that all Legal Costs of Agent incurred
in connection with this Amendment and the other Loan Documents shall have been
paid;
(f) except
for the Continuing Defaults (as hereinafter defined) no Default or Event of
Default is continuing or would result after giving effect to this Amendment;
and
(g) except
for those representations and warranties that are not true and correct as a
result of the Continuing Defaults, all representations and warranties of the
Loan Parties contained in this Amendment and in the Credit Agreement shall be
true and correct in all material respects as of the date hereof and as of the
Effective Date, except to the extent such representations and warranties relate
to a specific date.
SECTION
4.
NO WAIVER ; LIMITATION
ON SCOPE
(a) Borrower
hereby acknowledges that the “Subject Events of Default” (as defined in that
certain Reservation of Rights Letter, dated as of May 23, 2007, from Agent to
Loan Parties) are continuing. Further, Borrower has informed Agent of
the following:
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(1)
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on
July 11, 2007, an involuntary bankruptcy proceeding was commenced against
Parent in the United States Bankruptcy Court, District of Delaware, and
such proceeding has remained undismissed for longer than 60
days. Such proceeding and passage of time without dismissal
constitutes an Event of Default under Section 8.1.3
of the Credit Agreement (the “Bankruptcy
Default”); and
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(2)
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Borrower
has made distributions to Parent in contravention of Section 7.4 of
the Credit Agreement. The payment of such distributions
constitutes an Event of Default under Section 8.1.4
of the Credit Agreement (the “Restricted Payment
Default”); and
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(3) Borrower
was not in compliance with the covenants set forth in Section 7.14 of the
Credit Agreement for the Fiscal Quarter ended June 30, 2007 (the “Financial Covenant
Default” and together with the Subject Events of Default, the Bankruptcy
Default and the Restricted Payment Default, collectively, the “Continuing
Defaults”).
Agent
hereby reserves all rights and remedies of Agent and Lender arising from the
occurrence and continuation of the Continuing Defaults, including, without
limitation, the right to declare the Loan and all other Obligations to be
immediately due and payable. Other than the waiver set forth in Section 2(a), nothing
contained in this Amendment, including the making of the Term Loan B, shall be
deemed a waiver by Agent or any Lender of its respective rights and remedies
against Borrower or any other Loan Party for the Continuing Defaults or for any
other existing or future Defaults or Events of Default.
(b) Except as
expressly amended hereby and except as provided in paragraph (a) above, all of
the representations, warranties, terms, covenants and conditions of the Loan
Documents shall remain in full force and effect in accordance with their
respective terms. The amendments set forth herein shall be limited
precisely as provided for herein and shall not be deemed to be waivers of,
amendments of, consents to or modifications of any term or provision of the Loan
Documents or any other document or instrument referred to therein or of any
transaction or further or future action on the part of Borrower or any other
Loan Party requiring the consent of Agent or Lenders except to the extent
specifically provided for herein.
SECTION
5.
MISCELLANEOUS
(a) Borrower
and the other Loan Parties hereby represent and warrant that this Amendment has
been duly authorized and executed by Borrower and each of the other Loan Parties
and that the Credit Agreement, as amended by this Amendment, is the legal, valid
and binding obligation of Borrower and the other Loan Parties party thereto,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
law or in equity).
(b) Each of
Borrower and the other Loan Parties repeats and restates the representations and
warranties of such Person contained in the Credit Agreement as of the date of
this Amendment and as of the Effective Date, except to the extent
such representations and warranties relate to a specific date; provided that
references to the Credit Agreement or “this Agreement” in such representations
and warranties shall be deemed to be references to the Credit Agreement as
amended pursuant to this Amendment.
(c) Borrower
and the other Loan Parties hereby ratify and confirm the Credit Agreement as
amended hereby, and agree that, as amended hereby, the Credit Agreement remains
in full force and effect.
(d) Borrower
and the other Loan Parties agree that the Loan Documents to which each such
Person is a party remain in full force and effect (as amended hereby in the case
of the Credit Agreement) notwithstanding the execution and delivery of this
Amendment and that nothing contained in this Amendment shall constitute a
defense to the enforcement of any Loan Document.
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(e) This
Amendment may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which counterparts together shall constitute but one and the same
instrument.
(f) All
references in the Loan Documents to the “Credit Agreement” and in the Credit
Agreement as amended hereby to “this Agreement,” “hereof,” “herein” or
the like shall mean and refer to the Credit Agreement as amended by this
Amendment (as well as by all subsequent amendments, restatements, modifications
and supplements thereto).
(g) THIS
AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
(h) This
Amendment is a “Loan Document” and each of the provisions set forth in Section 10 (Miscellaneous) of the
Credit Agreement applies to this Amendment to the same extent such provision
applies to any other Loan Document.
(i) Each of
the following provisions of the Credit Agreement is hereby incorporated herein
by this reference with the same effect as though set forth in its entirety
herein, mutatis
mutandis, and as if “this Agreement” in any such provision read “this
Amendment”: Section
10.2 (Notices), Section 10.10
(Captions), Section 10.13
(Severability), Section 10.14
(Entire Agreement), Section 10.15
(Successors and Assigns), Section 10.17
(Forum Selection; Consent to Jurisdiction) and Section 10.18
(Waiver of Jury Trial).
[SIGNATURE
PAGE FOLLOWS]
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WITNESS the due execution
hereof by the respective duly authorized officers of the undersigned as of the
date first written above.
BORROWER:
XXXXXX BIOFUELS, LLC
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
LOAN PARTIES:
EARTH BIOFUELS, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
APPLIED LNG TECHNOLOGIES USA,
L.L.C.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
FLEET STAR, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
APOLLO LEASING, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
ARIZONA LNG, L.L.C.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
EARTH LNG, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
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AGENT
AND LENDERS:
FOURTH
THIRD LLC,
as Agent
and a Lender
By: /s/ Xxxx X.
Xxxxx
Name: Xxxx
X. Xxxxx
Title: Authorized
Signatory
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EXHIBIT
A
CONSENT AND
REAFFIRMATION
Each of the undersigned (“Guarantors”) hereby
(i) acknowledges receipt of a copy of the foregoing Amendment No. 1; (ii)
consents to Borrower’s execution and delivery thereof and approves and consents
to the transactions contemplated thereby; (iii) agrees to be bound thereby; and
(iv) affirms that nothing contained therein shall modify or diminish in any
respect whatsoever its obligations under the Guarantee and Collateral Agreement
and the other Loan Documents to which it is a party and reaffirms that such
Guarantee and Collateral Agreement is and shall continue to remain in full force
and effect. This acknowledgement by Guarantors is made and delivered
to induce Agent and Lenders to enter into Amendment No. 1, and Guarantors
acknowledge that Agent and Lenders would not enter into Amendment No. 1 in the
absence of the acknowledgements contained herein. Although Guarantors
have been informed of the matters set forth herein and have acknowledged and
agreed to same, Guarantors understand that Agent and Lenders have no obligation
to inform Guarantors of such matters in the future or to seek Guarantors’
acknowledgment or agreement to future amendments or waivers, and nothing herein
shall create such a duty. Capitalized terms used herein without
definition shall have the meanings given to such terms in the Amendment No. 1 to
which this Consent is attached or in the Credit Agreement referred to therein,
as applicable.
IN WITNESS WHEREOF, the undersigned
have executed this Consent and Reaffirmation on and as of the date of Amendment
No. 1.
EARTH BIOFUELS, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
APPLIED LNG TECHNOLOGIES USA,
L.L.C.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
FLEET STAR, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
APOLLO LEASING, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
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ARIZONA
LNG, L.L.C.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
EARTH LNG, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Title: CEO
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