THIRD AMENDMENT TO LOAN DOCUMENTS
THIRD
AMENDMENT TO LOAN DOCUMENTS
Third
Amendment to Loan Documents, dated as of November 4, 2008 (this “Amendment”),
among
Pure Biofuels Corp. (the “Guarantor”),
Pure
Biofuels Del Peru S.A.C. and Palma Industrial S.A.C. (each a “Borrower”
and
collectively, the “Borrowers”),
Plainfield Special Situations Master Fund Limited (in its capacities as the
Lender and the Administrative Agent), and the other Credit Parties party
hereto.
All capitalized terms used herein and not otherwise defined herein shall
have
the respective meanings provided such terms in the Loan Agreement (as defined
below).
WITNESSETH:
WHEREAS,
the Guarantor, the Borrowers, the Lender and the Administrative Agent are
parties to that certain Loan Agreement, dated as of September 12, 2007 (as
amended by an amendment executed and delivered by the Guarantor and the
Borrowers on March 13, 2008 (the “First
Amendment”),
and
as further amended by an amendment dated as of April 18, 2008, among the
Guarantor, the Borrowers, Plainfield Special Situations Master Fund Limited
(in
its capacities as the Lender and the Administrative Agent) and the other
Credit
Parties party thereto (the “Second
Amendment”)
(pursuant to which the Lender has made Loans to the Borrowers in the aggregate
outstanding principal amount of $37,346,939.00, reduced the Interest Reserve
to
$0.00 and agreed to defer the payment of interest with respect to the Loans
during the period extending from and including March 12, 2008 to but excluding
October 1, 2008 (the “Deferred
Interest”),
such
Deferred Interest being due and payable in four equal monthly installments
on
October 1, 2008, November 1, 2008, December 1, 2008 and January 1, 2009)
(as so
amended, the “Loan
Agreement”);
WHEREAS,
the Loans are evidenced and secured by the Loan Agreement and the other Loan
Documents;
WHEREAS,
subject to the terms and conditions of this Amendment, the parties hereto
wish
to amend certain provisions of the Loan Documents as herein
provided.
NOW,
THEREFORE, IT IS AGREED:
1. The
Borrowers represent and warrant that the above recitals are true and correct
in
all respects.
2. The
Loan
Documents are amended as follows:
(a) Section
1.01 of the Loan Agreement is hereby amended by replacing the definitions
of
“Authorized Representative”, “Securities Purchase Agreement” and “Shareholders
Agreement”, respectively, with the following definitions, respectively:
“
‘Authorized
Representative’
means
Xxxx Xxxxxxxx or Xxxxxxx Xxxxx or any person or persons that has or have
been
authorized by the board of directors of Holdings or the Borrowers and are
otherwise reasonably acceptable to Plainfield Special Situations Master Fund
Limited.”
“
‘Securities
Purchase Agreement’
shall
mean the agreement, dated September 12, 0000, xxxxxxx Xxxxxxxxxx Xxxx I LLC,
Plainfield Peru II LLC and Holdings, as amended by a first amendment,
dated as of March 26, 2008 and as further amended by a second amendment,
dated
November 4, 2008.”
“
‘Shareholders
Agreement’
shall
mean the
Shareholders Agreement, dated September
12,
0000, xxxxx Xxxxxxxxxx Xxxx I LLC, Plainfield Peru II LLC and the other
shareholders party thereto, as amended by the amendment dated as of March
26,
2008.”
(b) Anything
in Section 2.08 of the Loan Agreement or the other Loan Documents to the
contrary notwithstanding, the Deferred Interest shall be due and payable
on
November 4, 2008.
3. Anything
in the Loan Agreement or the other Loan Documents to the contrary
notwithstanding, each of the Borrowers and the other Credit Parties hereby
covenants and agrees to take all actions set forth on Exhibit A to this
Amendment, at their sole cost and expense, to implement a trust arrangement
with
respect to the Collateral (including, without limitation, any collateral
as a
result of securing the Loans made pursuant to the Second Amendment), which
trust
arrangement (including, without limitation, the documentation therefor) shall
be
in form and substance reasonably satisfactory to the Lender (the “Trust
Arrangement”),
all
of the above to be completed within the time period set forth therein and
the
parties hereto acknowledge and agree that the Trust Arrangement shall replace
and subsume any prior obligations of the Borrowers as set forth in the Loan
Agreement or the other Loan Documents related to the Trust Arrangement prior
to
the date hereof and that the failure to take any of the actions required
on
Exhibit A to this Amendment, within the time period required, shall give
rise to
an immediate Event of Default.
4. Except
as
set forth on Schedule 1 hereto, each of the Borrowers and the other Credit
Parties hereby represents and warrants that all of the representations and
warranties made by it in the Loan Agreement and the other Loan Documents
are
true and correct as of the date made and, to the extent it is a continuing
representation or warranty, as of the Amendment Effective Date.
5. Each
of
the Borrowers and the other Credit Parties acknowledges, confirms and agrees
that (a) the aggregate principal amount of the Loans outstanding immediately
prior to the Amendment Effective Date is $37,346,939.00 and (b) it possesses
no
claims, defenses, offsets, rights of recoupment or counterclaims of any kind
or
nature against the Lender or with respect to the Loans, the Loan Documents
or
the enforcement thereof (collectively, the “Claims”),
nor
does either of the Borrowers or any of the other Credit Parties now have
knowledge of any facts that would or might give rise to any Claims. If facts
now
exist which would or could give rise to any Claim against the Lender or with
respect to the Loans, the Loan Documents or the enforcement thereof, each
of the
Borrowers and the other Credit Parties hereby unconditionally, irrevocably
and
unequivocally waives and fully releases any and all such Claims as if such
Claims were the subject of a law suit, adjudicated to final judgment from
which
no appeal can be taken, and therein dismissed with prejudice. Each of the
Borrowers and the other Credit Parties hereby waives the provisions of any
applicable laws restricting the release of claims which the releasing party
does
not know or suspect to exist at the time of release which, if known, would
have
materially affected its decision to agree to this release. In this regard,
each
of the Borrowers and the other Credit Parties hereby agrees, represents and
warrants to the Lender that it realizes and acknowledges that factual matters
now unknown to it may have given or may hereafter give rise to causes of
action,
claims, demands, debts, controversies, damages, costs, losses and expenses
which
are presently unknown, unanticipated and unsuspected, and each of the Borrowers
and the other Credit Parties further agrees, represents and warrants that
the
release provided hereunder has been negotiated and agreed upon in light of
that
realization, and that each of the Borrowers and the other Credit Parties
nevertheless hereby intends to release, discharge and acquit the Lender from
any
such unknown causes of action, claims, demands, debts, controversies, damages,
costs, losses and expenses which are in any manner set forth in or related
to
the Loans, the Loan Documents (including, without limitation, the enforcement
thereof), the Mortgaged Property, the improvements located therein, the other
Collateral and/or any and all dealings in connection therewith.
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6. (a)
Each
of the Borrowers and the other Credit Parties ratifies and confirms each
of the
liens and security interests granted by it to the Lender in the Loan Documents;
(b) (i)
each
of the Borrowers and the other Credit Parties ratifies and confirms that
the
Security Documents create in favor of the Administrative Agent, for the benefit
of the Lender, a security interest in all right, title and interest of each
of
the Borrowers and the other Credit Parties in those items and types of
collateral described in the Security Documents, as security for the Obligations
which include, without limitation, all Loans advanced to the Borrowers under
the
Loan Agreement.
(ii)
in
furtherance of the foregoing, Section 1(i) of the Pledge Agreement is hereby
amended to replace the existing text following after the words “each such Loan
Document” and prior to the words “(all such obligations, liabilities and
indebtedness under this clause (i), being herein collectively called the
“Loan
Document Obligations”)” in its entirety with the following:
“,
an
amendment to the Loan Agreement executed and delivered by Holdings and the
Borrowers on March 13, 2008, the Second Amendment to Loan Documents, dated
as of
April 18, 2008 (the ‘Second Amendment’), among Holdings, Pure Biofuels and
Palma, Plainfield Special Situations Master Fund Limited (in its capacities
as
the Lender and the Administrative Agent), and the other Credit Parties party
thereto, the Notes, dated April 18, 2008, issued by each of Pure Biofuels
and
Palma in favor of Plainfield Special Situations Master Fund Limited pursuant
to
the Second Amendment and the Third Amendment to Loan Documents, dated as
of
November 4, 2008 (the ‘Third Amendment’), among Holdings, Pure Biofuels and
Palma, Plainfield Special Situations Master Fund Limited (in its capacities
as
the Lender and the Administrative Agent), and the other Credit Parties party
thereto”;
(c) each
of
the Borrowers and the other Credit Parties acknowledges and agrees that except
as set forth in Section 2(b) as it applies to prior payments of interest
due
under Section 11.01(b) of the Loan Agreement subsequent to March 12, 2008
and
prior to the Amendment Effective Date and except as set forth in Section
3 as it
applies to the Trust Arrangement, the Lender has not waived, and by its
execution and delivery of this Amendment the Lender is not waiving, any Default
or Event of Default under the Loan Documents as amended hereby; and
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(d) each
of
Holdings and the Subsidiary Guarantors ratifies and confirms its Guaranty;
7. Each
of
the Loan Documents, as and to the extent amended hereby, remains in full
force
and effect in accordance with the terms and provisions thereof and
hereof.
8. This
Amendment is limited as specified and shall not constitute a modification,
acceptance or waiver of any other provisions of the Loan Agreement or any
other
Loan Document. In the event of any conflict between this Amendment and any
of
the Loan Documents, the terms and provisions of this Amendment shall govern
and
control. Each of the Borrowers and the other Credit Parties will do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and
delivered, at its sole cost and expense, all such further acts, deeds,
conveyances, mortgages, assignments, transfers, pledges and assurances as
the
Lender may reasonably require or deem desirable for the better assuring and
confirming the terms and provisions of this Amendment.
9. From
and
after the Amendment Effective Date, each reference in any Loan Document to
any
other Loan Document shall be deemed to be a reference to such Loan Document
as
and to the extent amended hereby.
10. This
Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which counterparts when
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A complete set of counterparts shall
be
lodged with each of the Lender and the Borrowers.
11. The
provisions of Sections 13.03 and 13.08 of the Loan Agreement are incorporated
by
reference herein (as if set forth in full in this section) so that this
Amendment shall be subject to the terms and provisions of such sections of
the
Loan Agreement.
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12. This
Amendment shall become effective on the first date (the “Amendment
Effective Date”)
on
which each of the following conditions is satisfied: (a) the Borrowers, the
Lender and each of the other Credit Parties shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
(including by way of facsimile transmission) the same to the Lender (with
a copy
to White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
Attention: Xxxx Xxx, Esq. (facsimile number 212-354-8113)); (b) the second
amendment to the Securities Purchase Agreement shall be effective and the
Borrowers shall have paid to the Lender the Deferred Interest in the aggregate
amount of $2,322,779; (c) the Lender shall have received an opinion letter,
addressed to the Administrative Agent and the Lender and dated the Amendment
Effective Date, from each of Xxxxx Xxxxxxxxxx, Esquire, General Counsel of
the
Company, Xxxxx
and
Xxxx LLP, special counsel to the Company
and
Muniz,
Ramirez, Xxxxx-Xxxxxx & Xxxx-Xxxxxxxx, special counsel to the Borrowers
with
respect to this Amendment and such matters incident thereto and to the
transactions contemplated herein and therein as the Administrative Agent
may
reasonably request; (d) the Lender shall have received (i) from each Borrower,
a
certificate, dated the Amendment Effective Date and signed on behalf of each
of
the Borrowers by an Authorized Representative of such Borrower in the form
of
Exhibit B with appropriate insertions, together with copies of the certificate
or articles of incorporation and by-laws (or other equivalent organizational
documents), as applicable, of such Borrower and the resolutions of such Borrower
referred to in such certificate certifying on behalf of such Borrower that
all
of the conditions in Sections 5.06 (for purposes of this Amendment, the
reference to June 30, 2007 in Section 5.06 shall instead refer to June 30,
2008)
and 5.07 of the Loan Agreement have been satisfied on such date and (ii)
from
each Credit Party other than the Borrowers, a certificate, dated the Amendment
Effective Date, signed by an Authorized Representative of such Credit Party,
and
attested to by another Authorized Representative of such Credit Party, in
the
form of Exhibit B with appropriate insertions, together with copies of the
certificate or articles of incorporation and by-laws (or other equivalent
organizational documents), as applicable, of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and each
of
(i) and (ii) above shall be in form and substance reasonably acceptable to
the
Lender; and (e) if requested by the Lender on or prior to November 4, 2008,
the
Lender shall have received such other documents and evidence as are customary
for transactions of this type or as the Lender may reasonably request in
order
to evidence the satisfaction of the other conditions set forth above.
*
* *
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IN
WITNESS WHEREOF, the parties have executed and delivered this Amendment as
of
the date first set forth above.
| LENDER: | |||
| PLAINFIELD SPECIAL SITUATIONS MASTER FUND LIMITED, as the Lender and the Administrative Agent | |||
| By: | |||
| Name: | |||
| Title: | |||
| BORROWERS: | |||
| PURE BIOFUELS DEL PERU S.A.C. | |||
| By: | |||
| Name: | |||
| Title: | |||
| PALMA INDUSTRIAL S.A.C. | |||
| By: | |||
| Name: | |||
|
Title:
|
|||
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|
OTHER
CREDIT PARTIES:
|
|||
|
as
a Guarantor
|
|||
| By: | |||
| Name: | |||
| Title | |||
|
ACEITE
PUCALLPA S.A.C.,
as
a Guarantor
|
|||
| By: | |||
| Name: Xxxxxxx Xxxxxx | |||
| Title: General Manager | |||
|
PALMAS
TROPICALES S.A.C.,
as
a Guarantor
|
|||
| By: | |||
| Name: Xxxxxxx Xxxxxx | |||
| Title: General Manager | |||
|
PUCAPALMA
S.A.C.,
as
a Guarantor
|
|||
| By: | |||
| Name: Xxxxxxx Xxxxxx | |||
| Title: General Manager | |||
|
ECOPALMA
S.A.C.,
as
a Guarantor
|
|||
|
|
|||
| By: | |||
| Name: Xxxxxxx Xxxxxx | |||
| Title: General Manager | |||
|
PALMAS
DE ORIENTE S.A.C.,
as
a Guarantor
|
|||
| By: | |||
| Name: Xxxxxxx Xxxxxx | |||
| Title: General Manager | |||
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The
undersigned agrees that the Credit Parties entry into this Amendment will
not
violate the terms of the Securities Purchase Agreement and the Convertible
Notes
issued thereunder.
