FORBEARANCE AND AMENDMENT AGREEMENT
EXHIBIT 10.89
This Forbearance and Amendment Agreement (this “Agreement”), dated as of May ___, 2007 (the
“Effective Date”), is entered into by and between EARTH BIOFUELS, INC., a Delaware corporation (the
“Company”), and each of the entities whose names appear on Annex I hereto (each, an “Investor” and,
collectively, the “Investors”).
WHEREAS, pursuant to a Securities Purchase Agreement, dated as of July 24, 2006 (as amended,
restated, supplemented or otherwise modified from time to time, the “Securities Purchase
Agreement”), each Investor purchased from the Company a note in the original principal amount set
forth next to such Investor’s name on Annex I hereto (as amended, restated, supplemented or
otherwise modified from time to time, a “Note” and, collectively with the other notes issued
pursuant to the Securities Purchase Agreement, the “Notes”);
WHEREAS, notwithstanding that Events of Default (as defined in the Notes) have occurred prior
to the Effective Date (the “Existing Defaults”), each Investor is willing, as long as the Company
and each Guarantor Subsidiary (as defined below) complies with the terms of this Agreement and the
other Transaction Documents (as defined below), to forbear from enforcing the rights and remedies
available to it as a result of the Existing Defaults, on the terms and subject to the conditions
set forth in this Agreement;
WHEREAS, in connection with the forbearance to be provided by each Investor hereunder, the
Company and each Investor wish to amend the Note held by such Investor and certain other
Transaction Documents (as defined below) as described herein; and
WHEREAS, contemporaneously with the execution of this Agreement, the Company shall, for the
benefit of each Investor, (i) execute and deliver a Security Agreement in the form attached as
Exhibit A hereto (the “Security Agreement”) and (ii) cause each Guarantor Subsidiary (as defined
below) to execute and deliver (x) a guaranty in the form attached as Exhibit B hereto (the
“Subsidiary Guaranty”) guaranteeing the Company’s payment obligations under this Agreement, the
Notes and the other Transaction Documents and (y) the Security Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. OBLIGATIONS; CONFESSIONS OF JUDGMENT; DEFINITIONS.
1.1 Current Obligations of the Company. The Company acknowledges and agrees that (i)
as of [the Effective Date], the aggregate amount due and owing to each Investor under the
Transaction Documents as a result of the Existing Defaults (such Investor’s “Current Obligation
Amount”) is set forth next to such Investor’s name on Annex I hereto, and (ii) the Company has no
right of offset, defense, or counterclaim with respect to the Obligations (as defined below) owed
to any Investor.
1.2 Confessions of Judgment. As an inducement for each Investor to enter into this
Agreement, the Company has executed and delivered to such Investor an irrevocable Affidavit
of Confession of Judgment in the form set forth on Exhibit C hereto (each, a “Confession of
Judgment”) in the amount set forth next to such Investor’s name on Annex I hereto (such Investor’s
“Confession of Judgment Amount”) that shall become effective upon the occurrence of a Forbearance
Default (as defined below); provided, however, that the filing by an Investor of its Confession of
Judgment shall not be deemed to be the exclusive remedy available to such Investor in the event
that a Forbearance Default occurs, and shall in no way limit the right of such Investor to seek
recovery of amounts (including, without limitation, any additional amounts accruing since [the
Effective Date]) payable to such Investor pursuant to this Agreement, the Notes or any other
Transaction Document in excess of such Investor’s Current Obligation Amount or Confession of
Judgment Amount.
1.3 Certain Definitions. When used herein, the terms set forth below shall have the
respective meanings indicated. Capitalized terms used herein and not otherwise defined have the
respective meanings set forth in the Securities Purchase Agreement or the Notes, as the case may
be.
“Debt” means, as to any Person at any time: (a) all indebtedness, liabilities and obligations
of such Person for borrowed money; (b) all indebtedness, liabilities and obligations of such Person
to pay the deferred purchase price of Property or services, except trade accounts payable of such
Person arising in the ordinary course of business that are not past due; (c) all capital lease
obligations of such Person; (d) all indebtedness, liabilities and obligations of others guaranteed
by such Person; (e) all indebtedness, liabilities and obligations secured by a Lien existing on
Property owned by such Person, whether or not the indebtedness, liabilities or obligations secured
thereby have been assumed by such Person or are non-recourse to such Person; (f) all reimbursement
obligations of such Person (whether contingent or otherwise) in respect of letters of credit,
bankers’ acceptances, surety or other bonds and similar instruments; and (g) all indebtedness,
liabilities and obligations of such Person to redeem or retire shares of capital stock of such
Person.
“Earth LNG” means the Company’s wholly-owned Subsidiary, Earth LNG, Inc., fka Apollo
LNG, Inc.
“Effective Date” means the date of this Agreement.
“Forbearance Default” means (a) the occurrence of an Event of Default (other than an Existing
Default) under one or more of the Notes; (b) the failure by the Company or any Guarantor Subsidiary
to comply with any term, condition or covenant set forth in this Agreement, the Security Agreement
or the Subsidiary Guaranty; (c) any representation made by the Company or any Guarantor Subsidiary
under or in connection with this Agreement, the Security Agreement or the Subsidiary Guaranty that
proves to be materially false or misleading as of the date when made; (d) the failure by the
Company or Earth LNG to use its best efforts, at any time during the period beginning on the
Effective Date and ending on the Termination Date, to consummate a sale of the LNG Facility (as
defined in Section 4.1 below), and to pay or to cause Earth LNG to pay to the Investors, in
accordance with each Investor’s Pro Rata Share, all of the Net Proceeds of such sale on the date on
which such sale is consummated; (e) the failure by the Company to pay to the Investors (in
accordance with each Investor’s Pro Rata Share) an aggregate amount equal to at least
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$25 million on or before June 30, 2007; (f) the failure by the Company to pay each Investor’s
Current Obligation Amount in full on or before August 31, 2007; (g) the failure of Apollo
Resources, Inc. to comply with any provision of the Lock-up Letter or the Amended Lock-up Letter
(each as defined in Section 2.6 below); or (h) the occurrence of any of the following: (i) the
Company or any of its Subsidiaries shall make a general assignment for the benefit of creditors or
consent to the appointment of a receiver, liquidator, custodian, or similar official of all or
substantially all of its properties, or the Company or any of its Subsidiaries shall commence any
action or proceeding or take advantage of or file under any federal or state insolvency statute
seeking to have an order for relief entered with respect to it or seeking adjudication as a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution, administration, a voluntary arrangement, or other relief with respect to it or its
debts; or (ii) there shall be commenced against the Company or any of its Subsidiaries any action
or proceeding of the nature referred to in clause (i) above or seeking issuance of a warrant of
attachment, execution, distraint, or similar process against all or any substantial part of its
property, which results in the entry of an order for relief which remains undismissed, undischarged
or unbonded for a period of sixty (60) days (other than, in any such case, an action or proceeding
initiated by an Investor or its Affiliates); or (iii) there is initiated the dissolution or other
winding up of the Company or any of its Subsidiaries, whether voluntary or involuntary (except to
the extent initiated by an Investor or its Affiliates) and whether or not involving insolvency or
bankruptcy proceedings; or (iv) there is initiated any assignment for the benefit of creditors or
any marshalling of the material assets or material liabilities of the Company or any of its
Subsidiaries.
“Forbearance Default Date” means the first date on which a Forbearance Default occurs.
“Guarantor Subsidiary” means each of the following entities: Applied LNG Technologies USA,
LLC, Apollo Leasing, Inc. fka Alternative Dual Fuels, Inc., Arizona LNG, LLC, Xxxxxx Biofuels,
LLC, Earth Distribution Company f/d/b/a Distribution Drive f/k/a The Wing Sail Co., Earth Ethanol,
Inc., Earth LNG, Inc. fka Apollo LNG, Inc., Fleet Star, Inc. and Joint Venture with South
Louisiana Ethanol, L.L.C. and HPS Development, LLC.
“Independent Director” means a natural person who (a) qualifies as an “independent
director”
under NASDAQ rules and (b) a natural person who, for the five-year period prior to his or her
appointment as Independent Director has not been, and during the continuation of his or her service
as Independent Director is not: (i) an employee, director, manager, member, stockholder, partner
or officer of the Company or any of its Affiliates (other than his or her service as an Independent
Director or other similar capacity of the Company or an Affiliate of the Company other than any
person that owns a director or indirect equity interest in the Company); (ii) a creditor, customer
or supplier of the Company or any of its Affiliates; (iii) any member of the immediate family of a
person described in (i) or (ii); or (iv) a person controlling, controlled by or under common
control with any person described above.
“Lien” means, with respect to any Property, any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, tax lien, financing statement, pledge, charge, or other
lien, charge, easement, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to such Property
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(including, without limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
“Net Proceeds” means, with respect to a financing or sale of assets by the Company or any
Subsidiary, the gross proceeds of such financing or sale less (i) reasonable brokerage
commissions paid to third parties for services rendered in connection with such financing or sale,
(ii) in the case of a debt financing, any prepayment penalties that may apply, (iii) in the case of
a debt financing that is secured by assets of the Company or any Subsidiary, the payment of any
Outstanding Debt secured by such assets immediately prior to such financing, (iv) any fees, taxes
or expenses imposed on the Company or such Subsidiary by any governmental authority in connection
with or as a result of any such financing or sale of assets and (v) any reasonable costs and
expenses of counsel, accountants and other advisors incurred directly in connection with such
financing or sale of assets; provided, however, that if a financing or sale of assets is effected
by a Subsidiary that is not wholly owned, directly or indirectly, by the Company, “Net Proceeds”
shall mean (x) the amount calculated according to the foregoing definition times (y) the
percentage of the Company’s Ownership Interest, direct or indirect, in such Subsidiary.
“Obligations” means, prior to a Forbearance Default, the Current Obligation Amount and,
following a Forbearance Default, the Confession of Judgment Amount, and any and all other payment,
performance and other obligations accrued or arising under this Agreement, the Notes, the
Securities Purchase Agreement or any of the other Transaction Documents since the Effective Date.
“Original Transaction Documents” means the agreements and other documents constituting
“Transaction Documents” as such term is defined in the Securities Purchase Agreement.
“Ownership Interest” means, with respect to an entity, the aggregate equity, economic and
voting interests in such entity, whether in the form of common stock, membership interests,
partnership interests or otherwise, held by Persons other than such entity.
“Outstanding Debt” means Debt of the Company or any Subsidiary that is outstanding on the
Effective Date and disclosed on Schedule 3.9 hereto.
“Permitted Debt” means the following:
(a) Outstanding Debt and any replacements or renewals thereof (without increasing the amount
of such Outstanding Debt or the seniority thereof or security therefor);
(b) the Notes;
(c) Subordinated Debt, provided, that Subordinated Debt shall constitute Permitted Debt only
if the entire Net Proceeds thereof are, on the date such Subordinated Debt is incurred, used to pay
down the Obligations; and
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(d) Debt consisting of capitalized lease obligations and purchase money indebtedness incurred
in the ordinary course of business, provided, that the related capital lease obligation or purchase
money indebtedness shall not exceed the cost of the property so leased or acquired.
“Permitted Liens” means the following:
(a) encumbrances consisting of easements, rights-of-way, zoning restrictions or other
restrictions on the use of real property or imperfections to title that do not (individually or in
the aggregate) materially impair the ability of the Company or any of its Subsidiaries to use such
real property in its businesses, and none of which is violated in any material respect by existing
or proposed structures or land use;
(b) Liens for taxes, assessments or other governmental charges that are not delinquent or
which are being contested in good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the Property subject to such Liens, and for which
adequate reserves (as determined in accordance with GAAP) have been established;
(c) Liens of mechanics, materialmen, warehousemen, carriers, landlords or other similar
statutory Liens securing obligations that are not yet due and are incurred in the ordinary course
of business or which are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the Property subject to such
Liens, for which adequate reserves (as determined in accordance with GAAP) have been established;
(d) Liens to secure Debt that is permitted under clause (d) of the definition of “Permitted
Debt” so long as (i) such Liens do not encumber any assets or properties of the Company or its
Subsidiaries other than the assets or properties acquired or leased in connection with the
incurrence of such Debt, and (ii) such Liens are created within ten (10) days of such acquisition;
(e) mortgages on real property in existence on the Effective Date and disclosed on Schedule
3.9 hereto, and any replacements thereof, securing amounts not greater than the amounts secured
thereby on the Effective Date; and
(f) Liens in existence on the Effective Date and listed on Schedule 3.10 hereto.
“Person” means any individual, corporation, trust, association, company, partnership, joint
venture, limited liability company, joint stock company, governmental authority or other entity.
“Property” means property and/or assets of all kinds, whether real, personal or mixed,
tangible or intangible (including, without limitation, all rights relating thereto).
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“Pro Rata Share” means, with respect to an Investor, the ratio determined by dividing (i) the
original principal amount of the Note purchased by such Investor pursuant to the Securities
Purchase Agreement by (ii) the original aggregate principal amount of the Notes purchased by all of
the Investors pursuant to the Securities Purchase Agreement. In the event that any Investor shall
sell or otherwise transfer any of such Investor’s Note, such Investor’s Pro Rata Share shall be
allocated between the transferring Investor and the transferee in proportion to the principal
amount of the Note transferred to such transferee and the principal amount of the Note retained by
such transferring Investor.
“Related Party Transaction” has the meaning specified in Section 3.8 hereof.
“Restricted Payment” means (a) any dividend or other distribution (whether in cash, Property
or obligations), direct or indirect, on account of (or the setting apart of money for a sinking or
other analogous fund for) any shares of any class of capital stock of the Company or any of its
Subsidiaries now or hereafter outstanding, except a dividend payable solely in shares of that class
of stock to all of the holders of that class; (b) any redemption, conversion, exchange, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of capital stock of the Company or any of its Affiliates now or hereafter
outstanding, except the Securities; (c) any prepayment of principal of, premium, if any, or
interest on, or any redemption, conversion, exchange, purchase, retirement, sinking fund or
defeasance of, any Debt (whether upon acceleration of such Debt or otherwise) other than the Notes;
and (d) any loan, advance or payment to any officer, director or stockholder of the Company or any
of its Affiliates, exclusive of reasonable compensation and reimbursements paid to officers or
directors in the ordinary course of business.
“Subordinated Debt” means Debt of the Company which meets each of the following requirements:
(a) such Debt is wholly unsecured or the Liens securing such Debt constitute Permitted Liens; and
(b) such Debt is contractually subordinated, as to payment and liquidation, to the payment in full
of the Notes and the Obligations on terms, and pursuant to written agreements in form and
substance, reasonably satisfactory to the Required Holders.
“Termination Date” means the later to occur of (i) August 31, 2007 and (ii) the
payment in
full of the Obligations.
“Transaction Documents” means (i) the Original Transaction Documents, (ii) this Agreement,
(iii) the Confessions of Judgment, (iv) the Security Agreement, (v) the Subsidiary Guaranty and
(vi) all other agreements, documents and other instruments executed and delivered by or on behalf
of the Company or any of its officers in connection with the transactions contemplated by this
Agreement.
1.4 Other Definitional Provisions. All definitions contained in this Agreement are
equally applicable to the singular and plural forms of the terms defined. The words “hereof”,
“herein” and “hereunder” and words of similar import referring to this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
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2. FORBEARANCE; RESCISSION OF DEFAULT NOTICES; DISMISSAL OF CLAIMS.
2.1 Agreement to Forbear. As long as no Forbearance Default occurs, each Investor
hereby agrees to refrain from exercising any of its rights or remedies under the Securities
Purchase Agreement, the Notes or any other Transaction Document that may exist as a result of the
Existing Defaults; provided, however, that in no event shall such agreement be deemed to limit,
modify, amend, waive or otherwise affect such Investor’s rights or remedies under this Agreement,
the Securities Purchase Agreement, the Notes, any other Transaction Document that accrue otherwise
than solely as a result of the Existing Defaults, all of which rights and remedies are hereby
expressly reserved and may be enforced by such Investor in accordance with the terms of the
Transaction Documents or this Agreement, as the case may be.
2.2 Forbearance; Dismissal of Claims. Each Investor, to the extent it has, prior to
the Effective Date, (i) submitted an Event of Default Redemption Notice to the Company, hereby
agrees to forbear from taking any further action with respect to such notice except upon the
occurrence of a Forbearance Default, (ii) commenced an action against the Company, hereby agrees to
dismiss such action without prejudice promptly following the Effective Date or (iii) received from
the Company an executed confession of judgment, hereby agrees (x) to dismiss, without prejudice,
any actions commenced in connection with executing upon such confession of judgment and (y) to
refrain from filing or otherwise executing upon such confession of judgment. Notwithstanding the
foregoing, nothing in this Agreement shall be construed as a waiver of or acquiescence to the
Existing Defaults, which Existing Defaults, and all rights and remedies arising therefrom, shall
remain in existence subject only to the agreement of each Investor set forth herein not to enforce
its rights or remedies prior to the occurrence of a Forbearance Default.
2.3 Remedies upon Forbearance Default. Upon the occurrence of a Forbearance Default,
and in addition to all of the rights and remedies available to each Investor under this Agreement,
the Notes and the other Transaction Documents, whether at law or in equity, or otherwise, the
Company acknowledges and agrees that, (x) each Investor’s agreement to forbear from taking action
with respect to its Event of Default Redemption Notice relating to the Existing Defaults shall
automatically terminate without such Investor giving notice or taking any other action; (y) each
Investor shall have the right to file the Confession of Judgment delivered to it hereunder with a
court of competent jurisdiction and execute upon such Confession of Judgment in accordance with
applicable law; and (z) each Investor shall have the right to institute a claim or, to the extent
it filed a claim against the Company prior to the Effective Date, reinstitute a claim against the
Company.
2.4 No Modifications; Non-waiver. Except as expressly provided herein, the execution
and delivery of this Agreement shall not: (a) constitute an extension, modification, or waiver of
any term, condition or provision of the Securities Purchase Agreement, the Notes or any other
Transaction Document; (b) extend the term of the Notes or the due date of any of the Obligations;
(c) give rise to any obligation on the part of the Investor to extend, modify or waive any term or
condition of the Securities Purchase Agreement, the Notes or any other Transaction Document; (d)
give rise to any defense, offset or counterclaim with respect to the right of the Investor to
compel payment of the Obligations or to otherwise enforce its rights and remedies
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under the Securities Purchase Agreement, the Notes and the other Transaction Documents; or (e)
establish a custom or course of dealing between the Company and the Investor. Except as expressly
limited hereby, the Investor hereby expressly reserves all of its rights and remedies under the
Securities Purchase Agreement, the Notes and the other Transaction Documents and under applicable
law with respect to the Existing Defaults.
2.5 Agreement to Refrain from Converting. Each Investor agrees that, notwithstanding
anything contained in the Notes or any other Transaction Document, such Investor will not submit a
Conversion Notice or otherwise attempt to convert such Investor’s Note into shares of Common Stock
until the earlier to occur of (i) August 31, 2007 and (ii) the Forbearance Default Date.
2.6 Lock-up Letter Consent. As long as no Forbearance Default occurs, the Company
shall be permitted to amend or waive the relevant provisions of the lock-up letter, dated as of
July 24, 2006 (the “Lock-up Letter” and, as so amended or waived, the “Amended Lock-up Letter”),
between the Company and Apollo Resources, Inc.
(“Apollo”), solely for the purpose of allowing
Apollo to sell, pledge, transfer and otherwise dispose of shares of the Company’s Common Stock
during the Lock-up Period (as defined in the Lock-up Letter); provided, however, such amendment or
waiver shall provide, as an express condition thereof, that (i) promptly upon (but in no event more
than three (3) Business Days following) the consummation of such sale, pledge, transfer or
disposition, Apollo must contribute the entire Net Proceeds thereof to the Company and, upon such
contribution, such proceeds shall be subject to the provisions of Section 4.12 below as though such
sale, pledge, transfer or disposition were consummated by the Company; (ii) no such sale or other
disposition shall be permitted if, as a consequence thereof, a Fundamental Transaction or Change of
Control shall occur; (iii) any such sale or other disposition shall be made pursuant to Rule 144,
and; (iv) immediately upon the occurrence of a Forbearance Default, Apollo shall be restricted from
selling or disposing, or consummating any pending sale or disposition, of shares of the Company’s
Common Stock pursuant to the terms of the Lock-up Letter in effect prior to such amendment or
waiver. Except as it may be amended or waived as provided in this Section 2.6, the Lock-up Letter
shall remain in full force and effect in accordance with its terms.
2.7 Waiver of Anti-Dilution Provisions. As long as no Forbearance Default occurs and
the Company complies with the terms of Section 4.12 hereof, each Investor waives the application of
Section 7(a) of such Investor’s Note (“Adjustment of Conversion Price upon Issuance of Common
Stock”) with respect to any Dilutive Issuances by the Company following the Effective Date;
provided, however, that immediately upon the occurrence of a Forbearance Default, such waiver shall
terminate and the Conversion Price shall be adjusted automatically to an amount (but only if less
than the Conversion Price then in effect) equal to the Conversion Price that would have existed on
the related Forbearance Default Date had such waiver not been granted and had the adjustments
required by Section 7(a) of the Note been made for all Dilutive Issuances occurring after the
Effective Date.
3. REPRESENTATIONS AND WARRANTIES. In consideration of the agreement of each Investor
to forbear from the exercise of its rights and remedies as set forth in this Agreement, the Company
hereby represents and warrants to such Investor as of the Effective Date as follows:
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3.1 Organization and Qualification. The Company and its Subsidiaries are entities duly
organized and validly existing in good standing under the laws of the jurisdiction in which they
are formed, and have the requisite power and authorization to own their properties and to carry on
their business as now being conducted. Each of the Company and its Subsidiaries is duly qualified
as a foreign entity to do business and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in good standing would
not reasonably be expected to have a Material Adverse Effect. The Company has no Subsidiaries
except as set forth on Schedule 3.1 hereto.
3.2 Authority. The Company has the requisite corporate power and authority to enter
into and perform its obligations under this Agreement, the Security Agreement and the other
Transaction Documents to which it is a party. Each Guarantor Subsidiary has the requisite corporate
power and authority to enter into and perform its obligations under the Subsidiary Guaranty, the
Security Agreement and the other Transaction Documents to which it is a party. All corporate action
on the part of the Company and of each Guarantor Subsidiary necessary for the authorization,
execution and delivery of, and the performance by the Company and each Guarantor Subsidiary of its
respective obligations under this Agreement, the Security Agreement and the other Transaction
Documents to which it is a party, and no further consent or authorization of the Company or any
Subsidiary of the Company or their respective boards of directors, members, partners or
stockholders, or any other person or entity is required.
3.3 Execution and Delivery; Enforceability of Agreements. The Company has duly
executed and delivered this Agreement. This Agreement constitutes, and the Security Agreement,
Confessions of Judgment and the other Transaction Documents to which the Company is a party, when
executed and delivered by the Company, will constitute, the valid and legally binding obligations
of the Company, enforceable against it in accordance with their respective terms. The Subsidiary
Guaranty, the Security Agreement and the other Transaction Documents to which the Guarantor
Subsidiaries are parties, when executed and delivered by each Guarantor Subsidiary, will constitute
the valid and legally binding obligations of such Guarantor Subsidiary, enforceable against it in
accordance with their respective terms. The enforceability of (i) this Agreement, the Confessions
of Judgment, the Security Agreement and the relevant Transaction Documents against the Company and
(ii) the Security Agreement, the Subsidiary Guaranty and the relevant Transaction Documents against
each Guarantor Subsidiary is subject in each such case to applicable bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization or other similar laws of general application
relating to or affecting the enforcement of creditors’ rights generally and to general principles
of equity.
3.4 No Conflicts. The execution, delivery and performance of this Agreement, the
Confessions of Judgment, the Security Agreement and the other Transaction Documents to which the
Company is a party by the Company and the execution, delivery and performance of the Subsidiary
Guaranty, the Security Agreement and the other Transaction Documents to which the Guarantor
Subsidiaries are parties by each Guarantor Subsidiary, and the consummation by the Company and the
Guarantor Subsidiaries of the transactions contemplated hereby and thereby will not (i) result in a
violation of the charter, by-laws or other governing documents of the Company or
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any of its Subsidiaries or (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree applicable to the Company or any
of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is
bound or affected.
3.5 Full Disclosure. There is no event or circumstance existing on the Effective Date
that, with the giving of notice or passage of time, or both, would constitute an Event of Default
other than the events and circumstances giving rise to the Existing Defaults.
3.6 Consents. Other than as set forth on Schedule 3.6 hereto, neither the Company nor
any Guarantor Subsidiary is required to obtain any consent, authorization or order of, or make any
filing or registration with, any court, governmental agency or any regulatory or self-regulatory
agency or any other Person in order for it to execute, deliver or perform any of its obligations
under or contemplated by this Agreement. All consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding sentence have been
obtained or effected on or prior to the Effective Date (other than those which the Company is not
required to obtain in accordance with this Agreement until after the Effective Date) and the
Company and its Subsidiaries are unaware of any facts or circumstances which might prevent the
Company from obtaining or effecting any of the registration, application or filings pursuant to the
preceding sentence.
3.7 Conduct of Business; Permits. Neither the Company nor any of its Subsidiaries (i)
is in violation of any term of or in default under its charter, by-laws or other governing
documents, (ii) is in violation of any judgment, decree or order or any statute, ordinance, rule or
regulation applicable to it, or (iii) will conduct its business in violation of any of the
foregoing, except for possible violations which could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries possess
all certificates, authorizations and permits issued by the appropriate regulatory authorities
necessary to conduct their respective businesses, except where the failure to possess such
certificates, authorizations or permits would not have, individually or in the aggregate, a
Material Adverse Effect, and neither the Company nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate, authorization or
permit.
3.8 Transactions with Affiliates. Except as set forth in SEC Documents filed at least
ten (10) days prior to the Effective Date and other than the grant of stock options pursuant to
stock option plans duly adopted by the Company and in effect as of the Effective Date, none of the
officers, directors or employees of the Company or any of its Subsidiaries is presently a party to
any transaction with the Company or any of its Subsidiaries (other than for ordinary course
services as employees, officers or directors), including without limitation any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring payments to or from any such officer,
director or employee or, to the knowledge of the Company, any corporation, partnership, trust or
other entity in which any such officer, director, or employee has a substantial interest or is an
officer,
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director, trustee or partner (collectively, “Related Party Transactions”). Schedule 3.8 sets
forth all Related Party Transactions (including any loan, advance or payment to any officer,
director or stockholder of the Company or any of its Affiliates, exclusive of reasonable
compensation and reimbursements paid to officers or directors in the ordinary course of business)
that have occurred since the Closing Date where the aggregate consideration paid or to be paid to
the Related Party or Parties (whether in the form of cash, securities or other property) with
respect to any such transaction (or series of related transactions) exceeded (or is scheduled to
exceed) $50,000. Schedule 3.8 also sets forth any payment made by the Company or any of its
Subsidiaries to any Investor since the Closing Date that was not made pro rata to each other
Investor based on each Investor’s Pro Rata Share.
3.9 Debt; Other Contracts. Except as disclosed in Schedule 3.9 hereto, neither the
Company nor any of its Subsidiaries (i) has any Outstanding Debt, (ii) is a party to any contract,
agreement or instrument, the violation of which, or default under which, by the other party (ies)
to such contract, agreement or instrument could reasonably be expected to result in a Material
Adverse Effect, (iii) is in violation of any term of or in default under any contract, agreement or
instrument relating to any Debt, except where such violations and defaults would not result,
individually or in the aggregate, in a Material Adverse Effect, or (iv) is a party to any contract,
agreement or instrument relating to any Debt, the performance of which, in the judgment of the
Company’s officers, has had or would reasonably be expected to have a Material Adverse Effect.
Schedule 3.9 hereto provides a reasonably detailed description of the material terms of any
Outstanding Debt. Except as set forth on Schedule 3.9 hereto, no Debt of the Company is senior to
or ranks pari passu with the Notes in right of payment, whether with respect of payment of
redemptions, interest, damages or upon liquidation or dissolution or otherwise.
3.10 Property; Liens. Each of the Company and its Subsidiaries have good and
marketable title to all Property owned by it, in each case free and clear of all Liens, except for
(i) Liens described on Schedule 3.10 hereto or (ii) Liens described in paragraphs (a), (b) or (c)
of the definition of “Permitted Liens” set forth herein. Any Property held under lease by the
Company or any of its Subsidiaries is held by it under valid, subsisting and enforceable leases
with such exceptions as are not material and do not materially interfere with the use made or
proposed to be made of such Property by the Company and its Subsidiaries. Earth LNG is the sole
owner of all right, title and interest in and to the LNG Facility.
3.11 Insurance. The Company and each of its Subsidiaries, and the Property owned by
the Company or any of its Subsidiaries, are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management of the Company
believes to be prudent and customary in the businesses in which the Company and its Subsidiaries
are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage
sought or applied for and neither the Company nor any such Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its business at
a cost that would not have a Material Adverse Effect.
3.12 Tax Status. The Company and each of its Subsidiaries (i) has made or filed
all foreign, federal and state income and all other tax returns, reports and declarations required
by
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any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and (iii) has set aside on its
books provision reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of
the Company know of no basis for any such claim.
3.13 Off Balance Sheet Arrangements. There is no transaction, arrangement, or other
relationship between the Company and an unconsolidated or other off balance sheet entity that is
required to be disclosed by the Company in its Exchange Act filings and is not so disclosed or that
otherwise would be reasonably likely to have a Material Adverse Effect.
4. COVENANTS OF THE COMPANY. In order to induce each Investor to forbear from the
exercise of its rights and remedies as set forth in this Agreement, the Company hereby covenants
and agrees with such Investor as follows:
4.1 Sale of LNG Facility. During the period beginning on the Effective Date and ending
on the Termination Date, the Company shall use its best efforts to consummate a sale of the
liquefied natural gas facility (the “LNG Facility”) currently operated by Earth LNG, and shall pay
(or cause such Subsidiary to pay) to the Investors (on the basis of each Investor’s Pro Rata Share)
all of the Net Proceeds of such sale on the date on which such sale occurs. On or before May 31,
2007, the Company shall retain an investment banking firm designated by the Required Holders (the
“Designated Observer”) to monitor the sale of the LNG Facility and other assets of the Company and
to assist the Company in ensuring that such sales progress expeditiously, fairly and in an orderly
manner. The Company shall cooperate (and shall cause its advisers and representatives to cooperate)
with the Designated Observer in the performance of its duties and shall provide all information
that the Designated Observer reasonably requests regarding the sale of the LNG Facility and all
other assets of the Company and its Subsidiaries, including without limitation all reports,
analyses, and appraisals concerning such assets prepared by or on behalf of the Company or any of
its Subsidiaries, and such other information concerning the business, operations and corporate
structure of the Company as the Designated Observer shall reasonably request. The Company shall
authorize and direct the Designated Observer (and any other advisers or representatives of the
Company who are directly involved in such sales) to provide each Investor with the opportunity to
ask questions of and receive answers from the Designated Observer (and such advisers and
representatives), and to receive copies of all documentation relating to the Company’s assets,
business and/or operations that is provided to or produced by the Designated Observer (or any such
adviser or representative), from time to time as reasonably requested by such Investor. The fees
and expenses of the Designated Observer shall be borne solely by the Company.
4.2 Limitation on Debt and Liens. During the period beginning on the Effective Date
and ending on the Termination Date, the Company shall refrain, and shall ensure that each of its
Subsidiaries refrains, (a) from incurring any Debt other than Permitted Debt, and (b) from
granting, establishing or maintaining any Lien on any of its Property, other than Permitted Liens.
12
4.3 Restricted Payments. During the period beginning on the Effective Date and ending
on the Termination Date, the Company shall not, nor shall it permit any Subsidiary of the Company
to, make any Restricted Payments, except that:
(a) the Company may make regularly scheduled payments of principal and interest accrued on any
Permitted Debt if and to the extent (but only if and to the extent) required by the express terms
of the documents governing such Permitted Debt; and
(b) Subsidiaries of the Company may make Restricted Payments to the Company;
provided, however, that no Restricted Payments may be made pursuant to clause (a) above if a
Forbearance Default (or an event or circumstance that with the giving of notice or lapse of time
would constitute a Forbearance Default) exists at the time of such Restricted Payment or would
result therefrom.
4.4 Indemnification. In consideration of the agreement of each Investor to forbear
from the exercise of its rights and remedies as set forth in this Agreement, and in addition to all
of the Company’s other obligations under the Transaction Documents, the Company shall defend,
protect, indemnify and hold harmless each Investor and their stockholders, partners, members,
officers, directors, employees, agents, attorneys and direct or indirect investors and any of the
foregoing Persons’ agents or other representatives (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement) (collectively, the
“Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses,
costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective
of whether any such Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified
Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any
misrepresentation or breach of any representation or warranty made by the Company in this Agreement
or any other Transaction Document, (b) any breach of any covenant, agreement or obligation of the
Company contained in this Agreement or any other Transaction Document or (c) any cause of action,
suit or claim brought or made against such Indemnitee by a third party (including for these
purposes a derivative action brought on behalf of the Company) and arising out of or resulting from
(i) the execution, delivery, performance or enforcement of this Agreement or any other Transaction
Document, or (ii) any disclosure made by such Investor pursuant to Section 4.11 below. To the
extent that the foregoing undertaking by the Company may be unenforceable for any reason, the
Company shall make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. Except as otherwise set forth
herein, the mechanics and procedures with respect to the rights and obligations under this Section
4.4 shall be the same as those set forth in Section 6 of the Registration Rights Agreement.
4.5 General Release. In consideration of, among other things, the forbearance provided
for herein, the Company forever waives, releases and discharges any and all claims (including,
without limitation, cross-claims, counterclaims, rights of setoff and recoupment), causes of
action, demands, suits, costs, expenses and damages that it now has or hereafter may have, of
13
whatsoever nature and kind, whether known or unknown, whether now existing or hereafter
arising, whether arising at law or in equity that arise under or relate to this Agreement or any
Transaction Document or any Person’s rights or obligations hereunder or thereunder, against any
Investor and their stockholders, partners, members, officers, directors, employees, agents,
attorneys and direct or indirect investors and any of the foregoing Persons’ agents or other
representatives, based in whole or in part on facts or circumstances, whether or not known,
existing on or prior to the Effective Date.
4.6 Registration. The Company shall file a registration statement covering the resale
of the shares of Common Stock underlying the Notes and the Warrants on or before May 31, 2007 (the
“Amended Filing Deadline”), and otherwise in compliance with the provisions of the Registration
Rights Agreements applicable to the filing and maintenance of a registration statement (and of any
amendments thereto or additional registration statements required by the terms of the Registration
Rights Agreement). Such registration statement shall cover the maximum number of shares of Common
Stock underlying the Notes and the Warrants permitted by the staff of the SEC. If such registration
statement is not filed on or before the Amended Filing Deadline, or if it is not declared effective
within 60 days following the Amended Filing Deadline (in the event the SEC does not conduct a full
review of such registration statement) or within 90 days following the Amended Filing Deadline (in
the event the SEC does conduct a full review of such registration statement), the Company shall pay
to each Investor a cash amount equal to 1.5% per month of the principal amount of such Investor’s
Note (prorated for partial months) until such filing is made or such declaration of effectiveness
is obtained, such payments to be made within five (5) Business Days following the last day of each
such month.
4.7 Interest Payments. On or before the Effective Date, the Company shall pay to each
Investor all unpaid interest that has accrued on such Investor’s Note through May 1, 2007, assuming
for such purpose that such interest accrued at an annual rate of eight percent (8%). Each Investor
hereby forbears from requiring (but does not waive its right upon the occurrence of a Forbearance
Default to require) the Company to pay interest based on an increase in the interest rate on the
Notes required by Section 1 thereof as a result of the Existing Defaults; provided, however, that
such increase shall become effective retroactive to July 24, 2006 upon the occurrence of a
Forbearance Default.
4.8 Corporate Governance. The Company shall ensure that, as of ___, 2007 and at
all times thereafter until the Obligations are paid in full, individuals constituting Independent
Directors comprise a majority of the directors serving on the Company’s board of directors.
Without limiting the generality of the foregoing, the Company shall take no action (whether by
increasing the number of directors or otherwise) that would reduce the number of Independent
Directors to less than a majority of the entire board of directors of the Company.
4.9 Continued Performance. The Company agrees that each of the Security Purchase
Agreement, the Notes and the Original Transaction Documents remains in full force and effect. The
Company shall, and shall cause each of its Subsidiaries to, continue to perform and observe all of
the respective terms and conditions contained in the Securities Purchase Agreement, the Notes and
the other Original Transaction Documents (in each such case, as amended hereby).
14
4.10 Expense Reimbursement. On or after the Effective Date, each Investor (each, a
“Submitting Investor”) shall submit to the Company an invoice prepared by its legal counsel
specifying the amount of legal fees and expenses incurred by such Investor in connection with the
negotiation and preparation of this Agreement and/or any and all ancillary and antecedent
documentation prepared with a view to settling the disputes resulting from the Existing Defaults or
enforcing such Investor’s rights with respect thereto (the aggregate amount of such fees and
expenses being referred to herein as the “Reimbursement Amount”). On or before (i) May ___, 2007,
the Company shall pay to the Submitting Investors the aggregate amount of $200,000 as partial
payment of the Reimbursement Amount, and (ii) May 31, 2007, the Company shall pay to the Submitting
Investors the balance of the Reimbursement Amount, each such payment to be allocated among the
Submitting Investors pro rata based on the full amount of the invoice submitted to the Company by
each Submitting Investor, it being understood that the Company shall not pay any portion of the
Reimbursement Amount to any Submitting Investor unless it pays a proportional amount to each other
Submitting Investor. In addition to the Reimbursement Amount, in the event of a Forbearance
Default, the Company shall reimburse each Investor for all costs and expenses incurred by such
Investor in connection with enforcing this Agreement, such Investor’s Note and the other
Transaction Documents, including without limitation the filing of and execution upon such
Investor’s Confession of Judgment. In the event that, at any time prior to May 31, 2007, the
Company has cash on hand in excess of ordinary and reasonable operating expenses and accruals, the
Company shall use such cash exclusively to pay down the outstanding balance of the Reimbursement
Amount.
4.11 Disclosure. The Company shall, on or
before the fourth (4th) Business
Day immediately following the Effective Date, transmit for filing with the SEC a Current Report on
Form 8-K disclosing the material terms of this Agreement and the other Transaction Documents, and
including this Agreement, the Security Agreement and the Subsidiary Guaranty as an exhibit to such
Form 8-K; provided, however, that each Investor shall have a reasonable opportunity if it so elects
to review and comment on such Form 8-K prior to the filing thereof. The Company acknowledges and
agrees that, following the filing of such Form 8-K, no Investor will possess any material,
non-public information regarding the Company that was disclosed to such Investor by the Company or
its representatives.
4.12 Use of Proceeds upon Sale or Refinance; Payment in Full of Obligations.
Contemporaneously with the sale of any assets of or the completion of a debt financing by the
Company or any Subsidiary, the Company shall pay or cause to be paid to each Investor such
Investor’s Pro Rata Share of all of the Net Proceeds of such sale or financing. Contemporaneously
with the completion of an equity or equity-linked financing (or series of financings occurring
within any period of sixty (60) consecutive days) by the Company or any Subsidiary in excess of two
million dollars ($2,000,000), the Company shall pay or cause to be paid to each Investor, in
accordance with such Investor’s Pro Rata Share, no less than the Applicable Percentage of the Net
Proceeds of such financing or financings. For purposes of this Section 4.12, “Applicable
Percentage” means (i) where the gross proceeds of an equity or equity-linked financing (or series
of financings) are greater than two million dollars ($2,000,000) but less than or equal to four
million dollars ($4,000,000), fifty percent (50%) and (ii) where such gross proceeds are greater
than four million dollars ($4,000,000), seventy five percent (75%). Upon the payment in full to
each Investor of the Current Obligation Amount prior to the occurrence of a Forbearance Default,
15
the Obligations shall be deemed to be paid in full and the Notes shall be deemed extinguished
and of no further force or effect; provided, however, that such payment in full shall not affect
the Company’s payment obligations, if any, that may arise under the indemnity provisions of this
Agreement or the Securities Purchase Agreement, which obligations shall remain in full force and
effect.
4.13 Assets; Subsidiaries. On or before the fifth (5th) Business Day
following the Effective Date, the Company shall provide to each Investor (i) a reasonably detailed
description of all assets owned by the Company and (ii) a complete and accurate list showing the
full name of each Guarantor Subsidiary, the principal place of business and jurisdiction of
incorporation of such Guarantor Subsidiary, and a reasonably detailed description of all assets
owned by such Guarantor Subsidiary. The Company shall cause each Guarantor Subsidiary, on or before
the Effective Date, (x) to execute and deliver to each Investor the Security Agreement and the
Subsidiary Guaranty, and (y) to do or perform, or to cause to be done and performed, all such
further acts and things, and to execute and deliver all such other agreements, certificates,
instruments and documents, as any Investor or the Collateral Agent (as defined in the Security
Agreement) may reasonably request in order to carry out the intent and accomplish the purposes of
this Agreement, the Security Agreement and the Subsidiary Guaranty and the consummation of the
transactions contemplated hereby and thereby, including, without limitation, providing reasonable
assistance to the Collateral Agent in connection with perfecting the Liens granted under the
Security Agreement.
4.14 Default Interest. In the event the Company fails to pay any amount required to be
paid pursuant to this Agreement or any other Transaction Document as and when required hereby, such
amount shall bear interest at a rate equal to the lesser of (i) one and one-half percent (1.5%) per
month and (ii) the maximum interest rate permitted under applicable law, in either case, prorated
for partial months, until such amount paid in full.
4.15 Related Party Transactions. During the period beginning on the Effective Date and
ending on the Termination Date, neither the Company nor any of its Subsidiaries shall enter into a
Related Party Transaction without the prior written consent of the Required Holders, which consent
may be withheld for any reason or no reason in the sole discretion of the Required Holders.
5. AMENDMENTS TO THE NOTES. Each Note is hereby amended as follows:
5.1 The first sentence of Section 1 shall be deleted in its entirety.
5.2 The words “July 24, 2011” in the third sentence of Section 1 thereof shall be deleted and
replaced with “August 31, 2007”.
5.3 The words “or as agreed in writing by the Holder” shall be inserted in the third sentence
of Section 1 thereof after the words “Other than as specifically permitted by this Note”.
5.4 The following shall be inserted at the end of the first sentence of Section 2 thereof:
16
“; provided, however, that from and after March 31, 2007, interest on this Note shall
be payable in arrears on the first day of each calendar month beginning on May 1, 2007, and
each such payment date shall be deemed to be an “Interest Date” for all purposes hereunder”
5.5 Section 3(b)(ii) shall be deleted in its entirety and replaced with the following:
“Conversion Price” means, as of any Conversion Date (as defined below) or other date of
determination, $0.3990, subject to adjustment as provided herein.”
5.6 Section 8 thereof (“Company Installment Conversion or Redemption”) shall be deleted in its
entirety.
5.7 Section 15(f) thereof (“Financial Covenants”) shall be deleted in its entirety.
5.8 Section 17 thereof shall be deleted in its entirety.
5.9 Except as specifically amended hereby, each Note shall remain in full force and effect in
accordance with its terms. The Company shall, promptly upon the request of an Investor, replace
such Investor’s Note with an amended and restated Note containing the amendments effected hereby,
with such additional conforming changes as may be necessary.
6. AMENDMENT TO THE WARRANTS. Each Warrant shall be amended so that in Section 1(b)
thereof, “$2.90” shall be deleted and replaced with “$0.4389”. Except as specifically amended
hereby, each Warrant shall remain in full force and effect in accordance with its terms. The
Company shall, promptly upon the request of an Investor, replace such Investor’s Warrant with an
amended and restated Warrant containing the amendment effected hereby.
7. MISCELLANEOUS.
7.1 Headings. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose.
7.2 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
17
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 HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
7.3 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.
7.4 No Novation. This Agreement shall not be deemed or construed to be a satisfaction,
reinstatement, novation or release of any Note or of any of the other Transaction Documents or,
except as expressly provided herein, a waiver by any Investor of any of its rights and remedies
under such Investor’s Note or any of the other Transaction Documents, at law or in equity.
7.5 Payment Set Aside. To the extent that the Company makes a payment or payments to
any Investor hereunder or pursuant to any of the Transaction Documents or any Investor enforces or
exercises its rights hereunder or thereunder, and such payment or payments or the proceeds of such
enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or
otherwise restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, foreign, state or federal law, common law or
equitable cause of action), then to the extent of any such restoration the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
7.6 Independent Nature of Investors’ Obligations and Rights. The obligations and
rights of each Investor under this Agreement, the Notes and the other Transaction Documents are
several and not joint with the obligations and rights of any other Investor, and no Investor shall
be responsible in any way for the performance of the obligations of or the exercises of any rights
or remedies by any other Investor hereunder. Nothing contained herein, and no action taken by any
Investor pursuant hereto, shall be deemed to constitute the Investors as a partnership, an
association, a joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such obligations or the
transactions contemplated hereby and the Company acknowledges that the Investors are not acting in
concert or as a group, and the Company shall not assert any such claim, with respect to such
obligations or the transactions contemplated by this Agreement. Each Investor confirms that it has
independently participated in the negotiation of the transactions contemplated hereby with the
advice of its own
18
counsel and advisors. Each Investor shall be entitled to independently protect and enforce its
rights, including, without limitation, the rights arising out of this Agreement, the Notes and the
other Transaction Documents and it shall not be necessary for any other Investor to be joined as an
additional party in any proceeding for such purpose. The use of a single agreement signed by all of
the Investors, and the use of a law firm representing one of the Investors to draft this Agreement
and the related documentation and to communicate with other Investors and/or counsel to other
Investors regarding this Agreement and such documentation, have been solely for the convenience of
the Company.
7.7 Construction. The Company acknowledges that it has been represented by its own
legal counsel in connection its execution of this Agreement, that it has exercised independent
judgment with respect to this Agreement and the transactions contemplated hereby, and that it has
not relied on any Investor or on any Investor’s counsel for any advice with respect to this
Agreement or such transactions. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of strict construction
will be applied against any party.
7.8 Integration. This Agreement, the Confessions of Judgment, the Security Agreement,
the Subsidiary Guaranty, the Notes, the Securities Purchase Agreement and the other Transaction
Documents, and all other written agreements, instruments and documents executed and delivered by
the parties hereto in connection herewith and therewith, set forth in full the terms of agreement
between the parties with respect to the subject matter hereof and thereof and are intended as the
full, complete and exclusive contract governing the relationship between the parties with respect
hereto and thereto, superseding all other discussions, promises, representations, warranties,
agreements and understandings between the parties with respect hereto and thereto. The Company has
not, directly or indirectly, made any agreements with any Investors relating to the terms or
conditions of the transactions contemplated by this Agreement except as set forth in this
Agreement.
7.9 Amendments; Waivers. No provision of this Agreement may be amended or waived other
than by an instrument in writing signed by the Company and each Investor, and any amendment or
waiver to this Agreement made in conformity with the provisions of this Section 7.9 shall be
binding on all Investors and holders of Securities, as applicable. No such amendment or waiver
shall be effective to the extent that it applies to less than all of the holders of the applicable
Securities then outstanding. No consideration shall be offered or paid to any Investor to amend or
consent to a waiver of any provision of this Agreement unless the same consideration also is
offered to all of the Investors. Any waiver of any condition in, or any breach of, any of the
foregoing in a particular instance shall not operate as a waiver of other or subsequent conditions
or breaches of the same or a different kind. Any Investor’s exercise or failure to exercise any
rights under any of the foregoing in a particular instance shall not operate as a waiver of its
right to exercise the same or different rights in other instances.
7.10 Notices. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement shall be in writing and shall be delivered
in the manner and with the effect described in the Securities Purchase Agreement.
19
7.11 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, including any purchasers of the
Notes or the Warrants. The Company shall not assign this Agreement or any rights or obligations
hereunder without the prior written consent of each Investor (unless the Company is in compliance
with the applicable provisions governing Fundamental Transactions set forth in the Notes and the
Warrants). An Investor may assign some or all of its rights hereunder without the consent of the
Company, in which event such assignee shall be deemed to be an Investor hereunder with respect to
such assigned rights.
7.12 No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person.
7.13 Remedies; Injunctive Relief. The remedies provided in this Agreement and the
other Transaction Documents shall be cumulative and in addition to all other remedies available
under this Agreement and any of the other Transaction Documents at law or in equity (including a
decree of specific performance and/or other injunctive relief), and nothing herein shall limit an
Investor’s right to pursue actual and consequential damages for any failure by the Company or any
Guarantor Subsidiary to comply with the terms of this Agreement and any of the other Transaction
Documents. The Company acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to each Investor and that the remedy at law for any such breach may be inadequate.
The Company therefore agrees that, in the event of any such breach or threatened breach, each
Investor shall be entitled, in addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing economic loss and without any bond or
other security being required.
7.14 Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
7.15 Payments to Investors. Unless otherwise expressly permitted by the terms of this
Agreement, all payments made by the Company of interest on or principal of the Notes, or other
amounts due under this Agreement or the other Transaction Documents, whether upon the occurrence of
a Forbearance Default or otherwise, shall be made to the Investors based on each Investor’s Pro
Rata Share, and no such payment shall be tendered or delivered to any Investor unless it is so
tendered and delivered to all Investors.
[Signature Pages Follow]
20
IN WITNESS WHEREOF, the Company and each Investor have caused this Agreement to be duly
executed as of the Effective Date.
COMPANY:
EARTH BIOFUELS, INC.
By: |
||||
Title: |
INVESTORS:
CASTLERIGG MASTER INVESTMENTS LTD.
By: |
||||
Title: |
EVOLUTION MASTER FUND LTD. SPC,
SEGREGATED PORTFOLIO M
SEGREGATED PORTFOLIO M
By: |
||||
Title: |
RADCLIFFE SPC, LTD. FOR AND ON
BEHALF OF THE CLASS A CONVERTIBLE CROSSOVER
SEGREGATED PORTFOLIO
By: RG Capital Management, L.P.
By: RGC Management Company, LLC
BEHALF OF THE CLASS A CONVERTIBLE CROSSOVER
SEGREGATED PORTFOLIO
By: RG Capital Management, L.P.
By: RGC Management Company, LLC
By: |
||||
Title: |
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CAPITAL VENTURES INTERNATIONAL
By: Heights Capital Management, Inc.
By: Heights Capital Management, Inc.
By: |
||||
Title: |
PORTSIDE GROWTH AND OPPORTUNITY
FUND
FUND
By: |
||||
Title: |
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC, its General Partner
By: Yorkville Advisors, LLC, its General Partner
By: |
||||
Title: |
CRANSHIRE CAPITAL L.P.
By: |
||||
Title: |
KINGS ROAD INVESTMENTS LTD.
By: |
||||
Title: |
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Annex I to
Forbearance Agreement
Forbearance Agreement
Current | ||||||||||||
Original | Confession of | Obligation | ||||||||||
Investor | Principal Amount | Judgment Amount | Amount | |||||||||
Castlerigg Master Investments Ltd. |
$ | 11,500,000 | $ | 18,762,308 | $ | 13,800,000 | ||||||
Evolution Master Fund Ltd. SPC,
Segregated Portfolio M |
$ | 11,500,000 | $ | 18,762,308 | $ | 13,800,000 | ||||||
Kings Road Investments Ltd. |
$ | 10,000,000 | $ | 16,315,050 | $ | 12,000,000 | ||||||
Capital Ventures International |
$ | 8,000,000 | $ | 13,052,040 | $ | 9,600,000 | ||||||
Radcliffe SPC, Ltd. for and on
behalf of the Class A Convertible
Crossover Segregated Portfolio |
$ | 5,000,000 | $ | 8,157,525 | $ | 6,000,000 | ||||||
Cornell Capital Partners, LP |
$ | 3,000,000 | $ | 4,894,515 | $ | 3,600,000 | ||||||
Portside Growth and Opportunity Fund |
$ | 2,000,000 | $ | 3,263,010 | $ | 2,400,000 | ||||||
Cranshire Capital L.P. |
$ | 1,500,000 | $ | 2,447,257 | $ | 1,800,000 | ||||||
Total |
$ | 52,500,000 | $ | 85,654,013.00 | $ | 63,000,000 | ||||||
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