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THIRD AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
BY AND AMONG
PURE BIOFUELS CORP.
AND
PLAINFIELD PERU I LLC
PLAINFIELD PERU II LLC
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Dated as of March 10, 2009
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TABLE OF CONTENTS
Page
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ARTICLE I AMENDMENTS TO THE AGREEMENT 2
SECTION 1.1. Definitions 2
SECTION 1.2. Sale and Purchase. 3
SECTION 1.3. The Notes 5
SECTION 1.4. Anti-Dilution. 5
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY 5
SECTION 2.1. Incorporation of Representations and Warranties from the Agreement 5
SECTION 2.2. Use of Proceeds 6
SECTION 2.3. No Adjustment to Conversion Price 6
SECTION 2.4. Capital Stock 6
SECTION 2.5. Brokers and Finders 7
SECTION 2.6. Financial Statements; Undisclosed Liabilities 7
SECTION 2.7. Private Offering 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASER 8
SECTION 3.1. Incorporation of Representations and Warranties from the Agreement 8
ARTICLE IV CONDITIONS PRECEDENT TO 2009 ADDITIONAL NOTES CLOSINGS 8
SECTION 4.1. Conditions to the Company's Obligations 8
SECTION 4.2. Conditions to Purchaser's Obligations 9
ARTICLE V MISCELLANEOUS 11
SECTION 5.1. Reference to and Effect on the Agreement and the Initial Notes 11
SECTION 5.2. Registration Rights Agreement 11
SECTION 5.3. Governing Law 11
SECTION 5.4. Expenses 11
SECTION 5.5. Headings Descriptive 11
SECTION 5.6. Counterparts 11
(i)
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT dated as of March 10,
2009 (this "Third Amendment"), by and among PURE BIOFUELS CORP., a Nevada
corporation (the "Company"), and PLAINFIELD PERU I LLC, a Delaware limited
liability company ("LLC1"), and PLAINFIELD PERU II LLC, a Delaware limited
liability company ("LLC2" and together with LLC1, the "Purchaser"). Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Agreement (as defined below).
WITNESSETH:
WHEREAS, the Company entered into a Securities Purchase Agreement,
dated as of September 12, 2007 (as amended by a First Amendment to Securities
Purchase Agreement dated as of March 26, 2008 and a Second Amendment to
Securities Purchase Agreement dated as of November 24, 2008, the "Agreement"),
by and among the Company, LLC 1 and LLC 2 for the purchase of $19,005,897
aggregate principal amount of 10%/12% Senior Convertible PIK Election Notes due
2012, Common Stock and warrants to purchase shares of Common Stock;
WHEREAS, to obtain funds to make equity contributions to the Borrowers
(as defined below) to enable the Borrowers to pay interest with respect to the
Loans (as such term is defined under the Loan Agreement, dated as of September
12, 2007, among Pure Biofuels de Peru S.A.C. and Palma Industrial S.A.C., as
borrowers (the "Borrowers"), the Company, as guarantor, and Plainfield Special
Situations Master Fund Limited, as the lender and administrative agent and the
other parties thereto, as amended) (i) during the period extending from and
including February 1, 2009 to and including February 28, 2009 (the "February
Deferred Interest"), the Company desires, subject to the terms and conditions
set forth herein, to issue and sell to Purchaser, and Purchaser desires, subject
to the terms and conditions set forth herein, to purchase additional 10%/12%
Senior Convertible PIK Election Notes due 2012 in an aggregate principal amount
of $283,214.29, convertible into 944,047.63 shares of Common Stock (subject to
adjustment) (the "February 2009 Deferred Interest Additional Notes") and (ii)
during the period extending from and including March 1, 2009 to and including
March 31, 2009 (the "March Deferred Interest"), the Company desires, subject to
the terms and conditions set forth herein, to issue and sell to Purchaser, and
Purchaser desires, subject to the terms and conditions set forth herein, to
purchase additional 10%/12% Senior Convertible PIK Election Notes due 2012 in an
aggregate principal amount of $313,558.68, convertible into 1,045,195.60 shares
of Common Stock (subject to adjustment) (the "March 2009 Deferred Interest
Additional Notes" and together with the February 2009 Deferred Interest
Additional Notes, the "2009 Deferred Interest Additional Notes");
WHEREAS, to obtain funds to make equity contributions to the Borrowers
to enable the Borrowers to pay certain general corporate obligations, the
Company also desires, subject to the terms and conditions set forth herein, to
issue and sell to Purchaser, and Purchaser desires, subject to the terms and
conditions set forth herein, to purchase an additional $2,200,000 aggregate
principal amount of 10%/12% Senior Convertible PIK Election Notes due 2012,
convertible into 55,000,000 shares of Common Stock (subject to adjustment) (the
"2009 General Obligation Additional Notes"); and
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WHEREAS, Section 11.1 of the Agreement provides that the Company and
the Required Holders may, with certain exceptions, amend the Agreement with the
written consent of the Company and the Required Holders.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows.
ARTICLE I
AMENDMENTS TO THE AGREEMENT
SECTION 1.1. Definitions. Clause (a) of Article I of the Agreement is
hereby amended by inserting the following definitions in appropriate
alphabetical order:
"2009 Additional Notes" means the 10%/12% Senior Convertible PIK
Election Notes due 2012 issued by the Company on each of the First 2009
Additional Notes Closing Date, the March 2009 Deferred Interest Additional
Notes Closing Date and the Second 2009 Additional Notes Closing Date (such
term to include any such notes issued in substitution therefor pursuant to
Section 12 of the Agreement and any notes issued in kind as interest
pursuant to the terms of the 2009 Additional Notes).
"2009 General Obligation Additional Notes" has the meaning set forth
in the preamble of the Third Amendment.
"February 2009 Deferred Interest Additional Notes" has the meaning set
forth in the preamble of the Third Amendment.
"First 2009 Additional Notes Closing" has the meaning set forth in
Section 2.8(a) of this Agreement.
"First 2009 Additional Notes Closing Date" has the meaning set forth
in Section 2.8(a) of this Agreement.
"First 2009 Additional Notes Purchase Price" has the meaning set forth
in Section 2.7 of this Agreement.
"March 2009 Deferred Interest Additional Notes" has the meaning set
forth in the preamble of this Agreement.
"March 2009 Deferred Interest Additional Notes Closing" has the
meaning set forth in Section 2.8(c) of this Agreement.
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"March 2009 Deferred Interest Additional Notes Closing Date" has the
meaning set forth in Section 2.8(c) of this Agreement.
"March 2009 Deferred Interest Additional Notes Purchase Price" has the
meaning set forth in Section 2.7 of this Agreement.
"Material Agreements" has the meaning ascribed to such term in Section
8.23 of the Loan Agreement and as set forth on Schedule 8.23 of the Loan
Agreement, as Schedule 8.23 of the Loan Agreement is updated by Schedule
2.1 to the Third Amendment.
"Notes" means the Initial Notes, the Additional Notes, the 2009
Additional Notes and any notes issued in substitution therefor pursuant to
Section 12 of the Agreement and any notes issued in kind as interest
pursuant to the terms of the Notes.
"Second 2009 Additional Notes Closing" has the meaning set forth in
Section 2.8(b) of this Agreement.
"Second 2009 Additional Notes Closing Date" has the meaning specified
in Section 2.8(b) of this Agreement.
"Second 2009 Additional Notes Purchase Price" has the meaning set
forth in Section 2.7 of this Agreement.
"Third Amendment" means the Third Amendment to Securities Purchase
Agreement, dated as of March 10, 2009, by and among the Company and
Purchaser.
In addition, the definition of "Conversion Price" in clause (a) of
Article I of this Agreement is replaced with the following definition:
"Conversion Price" means $0.30 for the Notes, subject to adjustments
set forth in Section 3.6 of this Agreement; provided, however, that
"Conversion Price" means $0.04 for the 2009 General Obligation Additional
Notes, subject to adjustments set forth in Section 3.6 of this Agreement.
SECTION 1.2. Sale and Purchase. Article II of the Agreement is hereby
amended by inserting a new Section 2.7 and 2.8 as follows:
SECTION 2.7. 2009 Additional Notes; Agreement to Sell and to
Purchase; Purchase Price. Subject to the terms and conditions set forth in this
Agreement, the Company agrees to issue and sell to Purchaser, and Purchaser
agrees to purchase from the Company, (a) on the First 2009 Additional Notes
Closing Date, $1,283,214.29 in aggregate principal amount of the 2009 Additional
Notes for a purchase price of $1,283,214.29 (the "First 2009 Additional Notes
Purchase Price"), (b) on the Second 2009 Additional Notes Closing Date,
$1,200,000 in aggregate principal amount of the 2009 Additional Notes for a
purchase price of $1,200,000 (the "Second 2009 Additional Notes Purchase Price")
and (c) on the March 2009 Deferred Interest Additional Notes Closing Date,
$313,558.68 in aggregate principal amount of the 2009 Additional Notes for a
purchase price of $313,558.68 (the "March 2009 Deferred Interest Additional
Notes Purchase Price").
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SECTION 2.8. Additional Notes Closing. (a) Subject to the
satisfaction or waiver of the conditions set forth in this Agreement, the
purchase and sale of $1,000,000 in principal amount of 2009 General Obligation
Additional Notes and the February 2009 Deferred Interest Additional Notes (the
"First 2009 Additional Notes Closing") shall take place at the offices of White
& Case LLP, counsel to Purchaser, at 1155 Avenue of the Americas, New York, New
York, on March 10, 2009 or on such other date as the parties shall mutually
agree upon (the "First 2009 Additional Notes Closing Date").
At the First 2009 Additional Notes Closing:
(i) Purchaser shall deliver an amount equal to the First 2009
Additional Notes Purchase Price via wire transfer of immediately available
funds to such bank account as the Company shall have designated not later
than 4 p.m. EDT on the First 2009 Additional Notes Closing Date.
(ii) The Company shall deliver to Purchaser against payment of the
First 2009 Additional Notes Purchase Price, a certificate or certificates
representing the 2009 Additional Notes being purchased by Purchaser
pursuant to Section 2.7, which shall be in definitive form and registered
in the name of Purchaser or its nominee or designee and in a single
certificate or in such other denominations as Purchaser shall have
requested;
(b) Subject to the satisfaction or waiver of the conditions set forth
in this Agreement, the purchase and sale of $1,200,000 in principal amount
of 2009 General Obligation Additional Notes (the "Second 2009 Additional
Notes Closing") shall take place at the offices of White & Case LLP,
counsel to Purchaser, at 1155 Avenue of the Americas, New York, New York,
on such date as the parties shall mutually agree upon (the "Second 2009
Additional Notes Closing Date").
(i) Purchaser shall deliver an amount equal to the Second 2009
Additional Notes Purchase Price via wire transfer of immediately available
funds to such bank account as the Company shall have designated not later
than 4 p.m. EDT on the Second 2009 Additional Notes Closing Date.
(ii) The Company shall deliver to Purchaser against payment of the
Second 2009 Additional Notes Purchase Price, a certificate or certificates
representing the 2009 Additional Notes being purchased by Purchaser
pursuant to Section 2.7, which shall be in definitive form and registered
in the name of Purchaser or its nominee or designee and in a single
certificate or in such other denominations as Purchaser shall have
requested; and
(c) Subject to the satisfaction or waiver of the conditions set forth
in this Agreement, the purchase and sale of the March 2009 Deferred
Interest Additional Notes (the "March 2009 Deferred Interest Additional
Notes Closing") shall take place at the offices of White & Case LLP,
counsel to Purchaser, at 1155 Avenue of the Americas, New York, New York,
on April 1, 2009 or on such other date as the parties shall mutually agree
upon (the "March 2009 Deferred Interest Additional Notes Closing Date").
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(i) Purchaser shall deliver an amount equal to the March 2009
Deferred Interest Additional Notes Purchase Price via wire transfer of
immediately available funds to such bank account as the Company shall have
designated not later than 4 p.m. EDT on the March 2009 Deferred Interest
Additional Notes Closing Date.
(ii) The Company shall deliver to Purchaser against payment of the
March 2009 Deferred Interest Additional Notes Purchase Price, a certificate
or certificates representing the 2009 Additional Notes being purchased by
Purchaser pursuant to Section 2.7, which shall be in definitive form and
registered in the name of Purchaser or its nominee or designee and in a
single certificate or in such other denominations as Purchaser shall have
requested.
SECTION 1.3. The Notes. Section 3.1 of the Agreement is hereby amended
by inserting a new paragraph at the end thereof as follows:
The Company will authorize the issuance of (a) $1, 283,214.29
aggregate principal amount of the 2009 Additional Notes to be issued on the
First 2009 Additional Notes Closing Date, (b) $1,200,000 aggregate
principal amount of 2009 Additional Notes to be issued on the Second 2009
Additional Notes Closing Date, (c) $313,558.68 aggregate principal amount
of the March 2009 Deferred Interest Additional Notes to be issued on the
March 2009 Deferred Interest Additional Notes Closing Date and (d) any
Notes to be issued in kind as interest. The 2009 Additional Notes shall be
substantially in the form set forth in Exhibit A.
SECTION 1.4. Anti-Dilution. Section 3.6(g) of the Agreement is hereby
amended by inserting a new paragraph at the end thereof as follows: "For
purposes of Section 3.6(b) and 3.6(c) of this Agreement, the sale and issuance
of the 2009 General Obligation Additional Notes shall be deemed not to be an
issuance of Common Stock below the Conversion Price or Market Price.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
In order to induce the Purchaser to enter into this Third Amendment
and to purchase the 2009 Additional Notes, the Company hereby represents and
warrants to and agrees with the Purchaser that on each of the First 2009
Additional Notes Closing Date, the Second 2009 Additional Notes Closing Date and
the March 2009 Deferred Interest Additional Notes Closing Date (each a "Closing
Date"), after giving effect to the consummation of the transactions contemplated
hereby on such date that:
SECTION 2.1. Incorporation of Representations and Warranties from the
Agreement. The representations and warranties contained in Article IV of the
Agreement and in Section 8 of the Loan Agreement are true and correct in all
material respects with the same effect as though such representations and
warranties had been made on such Closing Date (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects only as
of such specified date); provided that Schedule 2.1 to this Third Amendment
updates Schedule 8.23 of the Loan Agreement as of the date hereof.
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SECTION 2.2. Use of Proceeds. (a) All proceeds from the sale of the
2009 Additional Notes shall be used solely for the purposes set forth on
Schedule 2.2 of this Third Amendment.
(b) All of the proceeds of the payment of each purchase price for the
2009 Defined Interest Additional Notes on each closing date relating thereto
shall be used by the Company on each such date to make an equity contribution to
the Borrowers in the same amount and the Company shall cause all of the proceeds
of each such equity contribution to be used on each such date by the Borrowers
to pay the February Deferred Interest or the March Deferred Interest, as
applicable. Each of the Company, Purchaser and the Borrowers (in the case of the
Borrowers, by their execution and delivery of this Third Amendment) agree that
each of (i) the payment of each purchase price for the 2009 Deferred Interest
Additional Notes, (ii) the making of such equity contributions by the Company to
the Borrowers and (iii) the payment of the February Deferred Interest and the
March Deferred Interest by the Borrowers to the Lender shall be deemed to have
occurred in such order on each such date by virtue of this Third Amendment (and
without any actual transfers of funds); provided, however, that in each case,
all conditions precedent set forth in this Third Amendment for the issuance and
purchase of the 2009 Deferred Interest Additional Notes are satisfied by the
Company on the applicable closing date.
(c) No part of the proceeds from the sale of the 2009 Additional
Notes will be used to purchase or carry any Margin Stock or to extend credit for
the purpose of purchasing or carrying any Margin Stock. Neither the sale of the
2009 Additional Notes nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulation T, U or X.
SECTION 2.3. No Adjustment to Conversion Price. Except as previously
disclosed in schedules to the Agreement, nothing has occurred since such Closing
Date that has resulted, or would result, in an adjustment to the Conversion
Price pursuant to Section 3.6 of the Agreement.
SECTION 2.4. Capital Stock. (a) As of such Closing Date, the
authorized Capital Stock of the Company will consist solely of 325,000,000
shares of Common Stock and 1,000,000 shares of preferred stock, of which
172,374,699 shares of Common Stock (assuming no additional exercises of existing
stock options) and no shares of preferred stock are issued and outstanding, no
shares are held in treasury and 136,153,572 shares of Common Stock (such amount
does not include any shares or warrants that may be issued pursuant to the
Binding Letter of Intent or Section 3.6(m) of the Agreement) are reserved for
issuance upon the exercise of outstanding warrants, options and other
convertible or exchangeable securities (other than the 2009 Additional Notes).
Schedule 4.7 to this Third Amendment sets forth the capitalization of the
Company as of such Closing Date.
(b) Except as set forth on Schedule 2.4 to this Third Amendment, there
are (i) no outstanding options, warrants, agreements, conversion rights,
exchange rights, preemptive rights or other rights (whether contingent or not)
to subscribe for, purchase or acquire any issued or unissued shares of Capital
Stock of the Company or any Subsidiary, and (ii) no restrictions upon, or
Contracts or understandings of the Company or any Subsidiary, or, to the
knowledge of the Company, Contracts or understandings of any other Person, with
respect to, the voting or transfer of any shares of Capital Stock of the Company
or any Subsidiary.
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(c) Upon the satisfaction of the condition to Purchaser's obligations
set forth in Section 4.2(d) of this Third Amendment, the Conversion Shares will
have been duly authorized and validly reserved for issuance in contemplation of
the conversion of the 2009 Additional Notes and, when issued and delivered in
accordance with the terms of the Notes, will have been validly issued and will
be fully paid and nonassessable, and the issuance thereof will not have been
subject to any preemptive rights or made in violation of any Applicable Law.
(d) The holders of the 2009 Additional Notes will, upon issuance
thereof, have the rights set forth in such Notes (subject to the limitations and
qualifications set forth therein).
SECTION 2.5. Brokers and Finders. No agent, broker, Person or firm
acting on behalf of the Company or its Affiliates is, or will be, entitled to
any fee, commission or broker's or finder's fees from any of the parties hereto,
or from any Person controlling, controlled by, or under common control with any
of the parties hereto, in connection with this Third Amendment or any of the
transactions contemplated hereby.
SECTION 2.6. Financial Statements; Undisclosed Liabilities.
(a) The unaudited balance sheet of the Company as of September 30,
2008 and the related statements of income and cash flows of Holdings for the
three-month and nine-month periods ended as of such dates, copies of which in
each case were furnished or made available to the Purchaser prior to the date
hereof, present fairly in all material respects the consolidated financial
condition of the Company and its subsidiaries at the date of said financial
statements and the consolidated results of operations for the period covered
thereby. All of the foregoing historical financial statements have been prepared
in accordance with GAAP consistently applied except to the extent provided in
the notes to said financial statements and subject, to normal year-end audit
adjustments (all of which are of a recurring nature and none of which,
individually or in the aggregate, would be material) and the absence of
footnotes.
(b) Except as fully disclosed in the financial statements previously
delivered to the Purchaser, and except for the Indebtedness incurred under the
Agreement and the Loan Agreement, there are as of the date hereof no liabilities
or obligations with respect to the Company or any of its subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in the aggregate, could
reasonably be expected to be material to the Company or any of its subsidiaries.
Except as set forth on Schedule 5.07 to the Loan Agreement, as of the date
hereof, neither the Company nor any of its subsidiaries knows of any basis for
the assertion against it of any liability or obligation of any nature whatsoever
that is not fully disclosed in the financial statements previously delivered to
the Purchaser or referred to in the immediately preceding sentence which, either
individually or in the aggregate, could reasonably be expected to be material to
the Company or any of its subsidiaries.
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(c) After giving effect to the transaction contemplated hereby,
nothing has occurred that has had, or could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
SECTION 2.7. Private Offering. Assuming the accuracy of the
representations and warranties set forth in Section 5.2 of the Agreement, the
offer and sale of the 2009 Additional Notes to Purchaser is exempt from the
registration and prospectus delivery requirements of the Securities Act. Neither
the Company, nor anyone acting on behalf of it, has offered or sold or will
offer or sell any securities, or has taken or will take any other action
(including, without limitation, any offering of any securities of the Company
under circumstances that would require, under the Securities Act, the
integration of such offering with the offering and sale of the 2009 Additional
Notes), which would subject the sale of the 2009 Additional Notes contemplated
hereby to the registration provisions of the Securities Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
Purchaser hereby represents and warrants to the Company as follows:
SECTION 3.1. Incorporation of Representations and Warranties from the
Agreement. The representations and warranties contained in Article V of the
Agreement are true and correct in all material respects with the same effect as
though such representations and warranties had been made on the date hereof (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
ARTICLE IV
CONDITIONS PRECEDENT TO 2009 ADDITIONAL NOTES CLOSINGS
SECTION 4.1. Conditions to the Company's Obligations. The issuance of
the 2009 Additional Notes by the Company shall be subject to the satisfaction,
at or prior to each Closing Date, of the following conditions:
(a) Purchaser shall have performed in all material respects all
obligations and agreements, and complied in all material respects with all
covenants, contained in this Third Amendment to be performed and complied
with by Purchaser at or prior to the such Closing Date.
(b) No provision of any Applicable Law, injunction, order or decree
of any Governmental Authority shall be in effect which has the effect of
making the transactions contemplated hereby illegal or shall otherwise
restrain or prohibit the consummation of the transactions contemplated
hereby.
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SECTION 4.2. Conditions to Purchaser's Obligations. The obligations of
Purchaser to purchase the 2009 Additional Notes contemplated by this Third
Amendment shall be subject to the satisfaction, at or prior to each Closing Date
(except as otherwise provided in this Section 4.2), of the following conditions:
(a) On such Closing Date and also after giving effect to the sale of
the 2009 Additional Notes on such date there shall exist no Default or Event of
Default.
(b) Purchaser shall have received a certificate, dated such Closing
Date and signed on behalf of the Company by an Authorized Representative,
certifying on behalf of the Company that on such Closing Date and also after
giving effect to the sale of the 2009 Additional Notes on such date (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties contained or incorporated by reference in this Third Amendment shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on such Closing Date (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
(c) On or prior to March 12, 2009, Purchaser shall have received from
each of DLA Piper US LLP (US) and Xxxxx and Xxxx LLP, U.S. special counsel to
the Company and Muniz, Ramirez, Xxxxx-Xxxxxx & Xxxx-Xxxxxxxx, special counsel to
the Subsidiaries, an opinion addressed to Purchaser and dated the date of
issuance of such opinion (and, if issued prior thereto, redated and reissued on
the Second 2009 Additional Notes Closing Date) covering such matters incident to
the transactions contemplated herein as the Purchaser may reasonably request.
(d) On or prior to April 30, 2009 (or June 30, 2009 in the event that
the Securities and Exchange Commission elects to review the proxy statement or
information statement relating to such amendment), the Company shall have
amended its articles of incorporation to increase the number of shares of Common
Stock authorized by the Company such that after giving effect to the amendment,
the authorized Capital Stock of the Company will be sufficient to allow the
issuance of all shares of Common Stock upon the conversion of the Notes.
(e) Purchaser shall have received a certificate from the Company,
dated such Closing Date, signed by an Authorized Representative, and attested to
by another Authorized Representative, in the form of Exhibit A, with appropriate
insertions, together with copies of the articles of incorporation and by-laws of
the Company and the resolutions of the Company referred to in such certificate
and the foregoing shall be in form and substance reasonably acceptable to
Purchaser.
(f) On such Closing Date, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated by
this Third Amendment shall be reasonably satisfactory in form and substance to
Purchaser, and Purchaser shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles, if
any, which Purchaser reasonably may have requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate
officials or Governmental Authorities.
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(g) Nothing shall have occurred since September 30, 2008 (and
Purchaser shall have not have become aware of any facts or conditions not
previously known) which Purchaser shall determine has had, or could reasonably
be expected to have, (i) a Material Adverse Effect or (ii) a material adverse
effect on the transactions contemplated hereby.
(h) All necessary governmental and third party approvals and/or
consents in connection with the Transactions shall have been obtained and remain
in effect, and all applicable waiting periods with respect thereto shall have
expired without any action being taken by any competent authority which
restrains, prevents or imposes materially adverse conditions upon the
consummation of the transactions contemplated hereby. On such Closing Date,
there shall not exist any judgment, order, injunction or other restraint issued
or filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon transactions
contemplated hereby.
(i) Except as set forth in Schedule 5.07 to the Loan Agreement, on
such Closing Date, there shall be no actions, suits or proceedings pending or
threatened (a) with respect to the transactions contemplated hereby, this Third
Amendment or any other Transaction Document, or (b) which Purchaser shall
determine has had, or could reasonably be expected to have, a Material Adverse
Effect.
(j) On or prior to the Second 2009 Additional Notes Closing Date, the
Company shall provide evidence satisfactory to Purchaser in its sole discretion
that the Company, either directly or through a third party, has obtained a
performance bond up to the amount of $2,500,000 bond from the relevant Peruvian
authorities in order to permit the Borrowers to commence terminaling operations
at the Callao plant.
(k) Purchaser shall have received certificates representing the 2009
Additional Notes purchased by Purchaser on such Closing Date.
(l) Purchaser shall have received such other documents and evidence
as are customary for transactions of this type or as Purchaser may reasonably
request in order to evidence the satisfaction of the other conditions set forth
above.
The Company covenants and agrees to deliver to Purchaser not later than
March 12, 2009 the opinions described in Section 4.2(c) with respect to the
First 2009 Additional Notes Closing. Further, the Company covenants and agrees
to deliver evidence satisfactory to Purchaser in its sole discretion that the
Company's articles of incorporation has been amended as described in, and within
the dates set forth in, Section 4.2(d).
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ARTICLE V
MISCELLANEOUS
SECTION 5.1. Reference to and Effect on the Agreement and the Initial
Notes
(i) Upon the execution of this Third Amendment by the parties hereto, each
reference in the Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Agreement and each reference in the
other Transaction Documents to the "Securities Purchase Agreement",
"thereunder", "thereof" or words of like import referring to the Agreement shall
mean and be a reference to the Agreement as amended hereby.
(ii) Except as specifically amended by this Third Amendment, the Agreement
and the other Transaction Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(iii)This Third Amendment shall constitute a "Transaction Document" and
this Third Amendment shall constitute a "Note Document" for all purposes of the
Agreement and the other Transaction Documents.
SECTION 5.2. Registration Rights Agreement. The parties hereto agree
that the shares of Common Stock issuable upon conversion of the 2009 Additional
Notes shall constitute "Registrable Securities" under the Registration Rights
Agreement.
SECTION 5.3. Governing Law. THIS THIRD AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES).
SECTION 5.4. Expenses. The Company shall reimburse the Purchaser for
all reasonable disbursements and out-of-pocket expenses incurred by the
Purchaser in connection with the transactions contemplated hereby, including,
without limitation, the fees and disbursements of White & Case LLP, counsel to
the Purchaser. On each Closing Date, Purchaser shall provide the Company with
documentation reasonably satisfactory to the Company for such disbursements and
out-of-pocket expenses.
SECTION 5.5. Headings Descriptive. The headings of the several
sections and subsections of this Third Amendment are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Third Amendment.
SECTION 5.6. Counterparts. This Third Amendment may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. Delivery
of an executed counterpart hereof by facsimile or electronic transmission shall
be as effective as delivery of any original executed counterpart hereof.
[SIGNATURE PAGES FOLLOW]
11
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the date first above written.
PURE BIOFUELS CORP.
By /s/ Xxxx Goyzeuta
--------------------------
Xxxx Goyzeuta
Chief Executive Officer
Each of the undersigned agrees that all references to the "Convertible Note
Documents" in the Loan Agreement shall mean the Convertible Note Documents are
amended by this Third Amendment.
Address:
Xx. Xxxxxxx x Xxxxxxx 000 xx 000
Xxx Xxxxxx, Xxxx
Xxxx
Attention: Xxxx Xxxxxxxx
Telephone: x000-000-0000
Facsimile: x000-000-0000
PURE BIOFUELS DEL PERU S.A.C.
By: /s/ Xxxx Goyzeuta
--------------------------
Name: Xxxx Goyzeuta
Title: Chief Executive Officer
Address: PALMA INDUSTRIAL S.A.C.
Xx. Xxxxxxx x Xxxxxxx 000 of 402 By /s/ Xxxxxxx Xxxxxx
San Xxxxxx, Lima --------------------------
Peru Name: Xxxxxxx Xxxxxx
Attention: Xxxx Xxxxxxxx Title: General Manager
Telephone: x000-000-0000
Facsimile: x000-000-0000
Address:
000 Xxxxxx Xxxxxx PURE BIOFUELS CORP.
Xxxxx 0000
Xxxxxx, Xxxxx 00000 By: /s/ Xxxx Goyzeuta
Attention: Xxxxxx Xxxxx, Xxxxx Xxxxxxxxxx --------------------------
Telephone: (000) 000-0000 Name: Xxxx Goyzeuta
Facsimile: (000) 000-0000 Title: Chief Executive Officer
Signature Page to Purchase Agreement
PLAINFIELD PERU I LLC
By /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Individual
PLAINFIELD PERU II LLC
By /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Individual
The undersigned agrees that the Company's issuance of 2009 Additional Notes and
the use of the proceeds thereof for the purposes set forth on Schedule 2.2
hereto will not violate the terms of the Loan Agreement.
PLAINFIELD SPECIAL SITUATIONS
MASTER FUND LIMITED
By /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Individual
Signature Page to Purchase Agreement
