FIFTH AMENDMENT TO SECURITIES PURCHASE AGREEMENT BY AND AMONG PURE BIOFUELS CORP. AND PLAINFIELD PERU I LLC PLAINFIELD PERU II LLC
FIFTH
AMENDMENT TO
BY AND
AMONG
AND
PLAINFIELD
PERU I LLC
PLAINFIELD
PERU II LLC
Dated as
of July 16, 2009
TABLE OF
CONTENTS
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Page
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ARTICLE
I AMENDMENTS TO THE AGREEMENT
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2
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SECTION
1.1. Definitions
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2
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SECTION
1.2. Sale and Purchase
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5
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SECTION
1.3. The Notes
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6
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SECTION
1.4. Excess Cash Flow
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7
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ARTICLE
II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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7
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SECTION
2.1. Incorporation of Representations and Warranties from the
Agreement
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7
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SECTION
2.2. Use of Proceeds
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8
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SECTION
2.3. No Adjustment to Conversion Price
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8
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SECTION
2.4. Capital Stock
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8
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SECTION
2.5. Brokers and Finders
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8
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SECTION
2.6. Financial Statements; Undisclosed Liabilities
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9
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SECTION
2.7. Private Offering
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9
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ARTICLE
III REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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10
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SECTION
3.1. Incorporation of Representations and Warranties from the
Agreement
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10
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ARTICLE
IV CONDITIONS PRECEDENT TO SUPPLEMENTARY NOTES CLOSINGS
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10
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SECTION
4.1. Conditions to the Company’s Obligations
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10
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SECTION
4.2. Conditions to Purchaser’s Obligations
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10
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ARTICLE
V MISCELLANEOUS
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12
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SECTION
5.1. Reference to and Effect on the Agreement and the Initial
Notes
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12
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SECTION
5.2. Registration Rights Agreement
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13
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SECTION
5.3. Governing Law
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13
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SECTION
5.4. Headings Descriptive
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13
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SECTION
5.5. Counterparts
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13
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(i)
FIFTH AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
FIFTH
AMENDMENT TO SECURITIES PURCHASE AGREEMENT dated as of July 16, 2009 (this
“Fifth 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, a Second Amendment to Securities Purchase Agreement dated
as of November 24, 2008, a Third Amendment to Securities Purchase Agreement
dated as of March 10, 2009 and a Fourth Amendment to Securities Purchase
Agreement dated as of March 27, 2009, the “Agreement”), by and among the
Company, LLC1 and LLC2 for the purchase of 10%/12% Senior Convertible PIK
Election Notes due 2012 (“PIK Notes”), Common Stock and warrants to purchase
shares of Common Stock;
WHEREAS,
the Company, the Borrowers, the subsidiary guarantors party thereto, Plainfield
Special Situations Master Fund Limited, as lender (in such capacity, the
“Lender”) and administrative agent (in such capacity, the “Administrative
Agent”) are parties to a Loan Agreement, dated as of September 12, 2007, as
amended by amendments dated as of March 13, 2008, April 18, 2008 and November 4,
2008 (as so amended, the “Loan Agreement”);
WHEREAS,
the Company and FDS Corporation S.A. (“FDS”) entered into a bridge loan, in the
principal amount of $1,000,000 on December 4, 2008 (the “FDS December 2008
Bridge Loan”), which is evidenced by a promissory note and warrants to purchase
shares of Common Stock, each dated December 4, 2008;
WHEREAS,
the Company and LLC1 entered into a bridge loan, in the principal amount of
$500,000 on December 4, 2008 (the “Plainfield December 2008 Bridge Loan”), which
is evidenced by a promissory note and warrants to purchase shares of Common
Stock, each dated December 4, 2008;
WHEREAS,
in connection with the FDS December 2008 Bridge Loan and the Plainfield December
2008 Bridge Loan, the Company, LLC1, Trimarine Corporation S.A., and FDS entered
into a letter agreement, dated December 4, 2008, pursuant to which, among other
things, upon the occurrence of certain conditions, Purchaser is required to
purchase an additional $22,500,000 aggregate principal amount of PIK
Notes;
WHEREAS,
the Company and FDS entered into two bridge loans, in the principal amounts of
$500,000 on April 28, 2009 and $250,000 on June 18, 2009 (the “FDS
2009 Bridge Loans” and together with the FDS December 2008 Bridge Loans, the
“FDS Bridge Loans”), which are evidenced by promissory notes dated April 28,
2009 and June 18, 2009, respectively;
1
WHEREAS,
the Company and LLC1 entered into two bridge loans, in the principal amounts of
$500,000 on April 28, 2009 and $250,000 on June 18, 2009 (and together with the
Plainfield December 2008 Bridge Loan, the “Plainfield Bridge Loans”), which are
evidenced by promissory notes dated April 28, 2009 and June 18, 2009,
respectively;
WHEREAS,
the Company issued to LLC1 10%/12% Senior Convertible PIK Election Notes due
2012 in the aggregate principal amounts of $1,000,000 and $1,200,000, dated
March 10, 2009 and March 27, 2009, respectively (collectively, the “Bridge
Notes”);
WHEREAS,
the Company has informed the Lender and the Purchaser that it is in the best
interests of the Company and its Majority-Owned Subsidiaries (as defined herein)
to repay all loan amounts on the Supplementary Notes Closing Date (i) borrowed
from Lender under the Loan Agreement, (ii) borrowed from LLC1 under the
Plainfield Bridge Loans and (iii) evidenced by the Bridge Notes, in each case,
including all accrued and unpaid interest, in an aggregate amount of
$41,431,727.95 as of
the Supplementary Notes Closing Date (the “Repayment”) with the proceeds
received by Pure Peru (as defined herein) pursuant to the Interbank Peru
Facility (as defined herein) (the “Refinancing”);
WHEREAS,
the Lender, the Administrative Agent and the Purchaser granted a waiver of all
applicable provisions of the Loan Agreement and the Agreement in connection with
the Repayment and the Refinancing on July 16, 2009;
WHEREAS,
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 an additional $34,312,219.62 aggregate
principal amount of PIK Notes, convertible into 114,374,066 shares of Common
Stock (subject to adjustment); and
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:
“Consolidated Net
Income” means the aggregate of the net income (loss) of the Company and
its Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP and before any reduction in respect of preferred stock
dividends.
“Excess Cash Flow”
means, the Consolidated Net Income for such period plus, without
duplication:
2
(1) provision
for taxes based on income or profits of the Company and its Subsidiaries for
such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus
(2) the
Fixed Charges of the Company and its Subsidiaries for such period, to the extent
that such Fixed Charges were deducted in computing such Consolidated Net Income;
plus
(3) depreciation,
amortization (including amortization of intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of the Company and
its Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such
Consolidated Net Income; plus
(4) any
one-time, non-recurring expenses or charges related to any equity offering,
investment, acquisition, disposition, recapitalization, restructuring,
integration or Indebtedness; minus
(5) non-cash
items increasing such Consolidated Net Income for such period, other than (a)
the accrual of revenue in the ordinary course of business and (b) the reversal
in such period of an accrual of, or cash reserve for, cash expenses in a prior
period, to the extent such accrual or reserve did not increase Excess Cash Flow
in a prior period; minus
(6) the
cash portion of Fixed Charges and the cash portion of any related one-time,
non-recurring expenses or charges related to any equity offering, investment,
acquisition, disposition, recapitalization, restructuring, integration or
Indebtedness with respect to such period; minus
(7) Capital
Expenditures for such period; minus
(8) any
reduction in the principal amount of Indebtedness resulting from principal
payments made thereon during such period;
in each
case, on a consolidated basis and determined in accordance with
GAAP.
“Fifth Amendment”
means the Fifth Amendment to Securities Purchase Agreement, dated as of July 16,
2009, by and among the Company and Purchaser.
“Fixed Charges” means,
with respect to the Company and its Subsidiaries for any period, the sum,
without duplication, of:
3
(1) the
consolidated interest expense of the Company and its Subsidiaries for such
period, whether paid or accrued, including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capitalized Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to hedging obligations in respect of interest rates; plus
(2) the
consolidated interest expense of the Company and its Subsidiaries that was
capitalized during such period; plus
(3) any
interest on Indebtedness of another Person that is guaranteed by the Company or
one of its Subsidiaries or secured by a lien on assets of the Company or such
Subsidiary, whether or not such guarantee or lien is called upon; plus
(4) the
product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred stock of the Company or any of its
Subsidiaries, other than dividends on equity interests payable solely in equity
interests of the Company or to the Company or a Subsidiary of the Company, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, determined on a consolidated basis in
accordance with GAAP).
“Interbank Peru” means
Banco Internacional del Perú – Interbank.
“Interbank Peru
Facility” means arrangements entered into by Pure Peru with Interbank
Peru and others, pursuant to which Interbank Peru will provide term loan
financing to Pure Peru in a principal amount of not less than
$43,000,000.
“Majority-Owned
Subsidiaries” means Pure Peru, Palma Industrial S.A.C., Ecopalma S.A.C.,
Aceite Pucallpa S.A.C., Palmas Tropicales S.A.C., Palmas De Oriente S.A.C., and
Pucapalma S.A.C.
“Pure Peru” means Pure
Biofuels del Peru S.A.C.
“Supplementary Notes”
means the 10%/12% Senior Convertible PIK Election Notes due 2012 issued by the
Company on the Supplementary 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
Supplementary Notes).
“Supplementary Notes
Closing” has the meaning set forth in Section 2.10 of this
Agreement.
“Supplementary Notes Closing
Date” has the meaning set forth in Section 2.10 of this
Agreement.
“Supplementary Notes Purchase
Price” has the meaning set forth in Section 2.9 of this
Agreement.
“Trimarine” means
Trimarine Corporation S.A.
4
“Trimarine Facility”
means the $40,000,000 working capital feedstock facility entered into by and
between Trimarine and Pure Peru on July 16, 2009.
In
addition, the definitions of “Material Agreements” and “Notes” in clause (a) of
Article I of the Agreement are hereby replaced with the following
definitions:
“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 Fifth Amendment.
“Notes” means the
Initial Notes, the Additional Notes, the 2009 Additional Notes, the
Supplementary 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.
SECTION
1.2. Sale
and Purchase. Article
II of the Agreement is hereby amended by inserting a new Section 2.9 and 2.10 as
follows:
“SECTION
2.9. Supplementary 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,
on the Supplementary Notes Closing Date, $34,312,219.62 in aggregate principal
amount of the Supplementary Notes for a purchase price of $34,312,219.62 (the
“Supplementary Notes Purchase Price”).
SECTION
2.10. Supplementary Notes
Closing. Subject to the satisfaction or waiver of the
conditions set forth in this Agreement, the purchase and sale of the
Supplementary Notes hereunder (the “Supplementary Notes Closing”) shall take
place at 10:00 a.m. at the offices of White & Case LLP, counsel to
Purchaser, at 1155 Avenue of the Americas, New York, New York, on July 16, 2009
or on such other date as the parties shall mutually agree upon (the
“Supplementary Notes Closing Date”).
At the
Supplementary Notes Closing:
(i) Purchaser
and the Company agree to implement the following funding arrangements on the
Supplementary Notes Closing Date with respect to (a) the payment of the
Supplementary Notes Purchase Price and (b) the making of the
Repayment:
(a) the
Company shall cause Pure Peru to transmit (via wire transfer of immediately
available funds) the sum of $7,119,508.33 to the Lender in partial payment of
the aggregate principal amount of the loans made by the Lender to Pure Peru
pursuant to the Loan Agreement; and
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(b) the
Company shall irrevocably direct Purchaser to transmit (x) to LLC1 an amount
equal to $3,619,508.33 of the Supplementary Notes Purchase Price in payment of
all principal, interest, fees, costs and expenses owed by the Company to LLC1
with respect to the Plainfield Bridge Loans and the Bridge Notes and (y) to the
Lender an amount equal to $30,692,711.29 of the Supplementary Notes Purchase
Price in payment of the balance of all principal, interest, fees, costs and
expenses owed by Pure Peru to the Lender pursuant to the Loan
Agreement.
Each of
Purchaser and the Company agrees that, upon completion of the foregoing funding
arrangements, the Supplementary Notes Purchase Price shall be deemed to have
been paid and the Repayment shall be deemed to have been made. Purchaser shall,
and shall cause the Lender to, execute and deliver all documents that the
Company may reasonably request in order to implement and evidence the completion
of the foregoing funding arrangements. The Company shall, and shall cause Pure
Peru to, execute and deliver all documents that Purchaser may reasonably request
in order to implement and evidence the completion of the foregoing funding
arrangements.
(ii) The
Company shall deliver to Purchaser against payment of the Supplementary Notes
Purchase Price, a certificate or certificates representing the Supplementary
Notes being purchased by Purchaser pursuant to Section 2.9, 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 not later than one Business Day prior to the Supplementary
Notes Closing Date.”
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 $34,312,219.62 aggregate principal amount
of the Supplementary Notes to be issued on the Supplementary Notes Closing Date
and any Notes to be issued in kind as interest. The Supplementary
Notes shall be on terms and conditions identical to the existing PIK Notes
except that: (i) the Company may prepay the Supplementary Notes without penalty;
(ii) the Supplementary Notes shall be convertible at the option of Purchaser
into shares of Common Stock at any time on or after July 16, 2010; and (iii) in
the event the Supplementary Notes are not repaid prior to July 16, 2010, the
Company shall issue to Purchaser on July 16, 2010, duly authorized and validly
issued seven-year warrants to purchase one share of Common Stock for every $1.00
principal amount of Supplementary Notes then outstanding, at a strike price
equal to 120% of the volume weighted average price of the Common Stock for the
sixty (60) trading days immediately preceding July 16, 2010; provided, however,
that the strike price shall not be less than $0.20 per share of Common Stock and
not greater than $0.40 per share of Common Stock. The Supplementary
Notes shall be substantially in the form set forth in Exhibit
A.
6
SECTION
1.4. Excess
Cash Flow. Article
VI of the Agreement is hereby amended by inserting a new Section 6.19 at the end
thereof as follows:
“SECTION
6.19. Excess Cash Flow.
(a) If
there is any Excess Cash Flow for any six month period ended June 30 and
December 31 of each year, commencing with the six month period ending December
31, 2009, the Company shall offer to apply 75% of the amount of such Excess Cash
Flow to repurchase Supplementary Notes at a purchase price in cash equal to 100%
of the principal amount of the Notes repurchased, plus any accrued and unpaid
interest, if any, to the date of purchase. Within 90 days after the
end of each such six month period, the Company shall deliver to the Purchaser
(i) an Officer’s Certificate setting forth the Company’s calculation of Excess
Cash Flow for such six month period, together with such supporting documentation
as the Purchaser may reasonably request, and (ii) a notice setting forth the
Company’s offer to repurchase Supplementary Notes with an amount equal to 75% of
such Excess Cash Flow on the date specified in the notice, which date shall be
no later than 15 days from the date such notice is sent. The Company
shall be obligated to repurchase Supplementary Notes validly tendered in
response to any such offer only if the Purchaser tenders such Supplementary
Notes on the date set forth in the notice. If only a portion of any
existing Supplementary Note is repurchased pursuant to such offer, a new Note in
a principal amount equal to the portion thereof not repurchased will be issued
in the name of the Purchaser upon cancellation of such existing Supplementary
Note.
(b) The
Company shall cause Pure Peru to execute and deliver an intercompany note to the
Company on the Supplementary Notes Closing Date, which intercompany note shall
include the provisions set forth under clauses (a) and (b) of this Section
6.19.”
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
OF THE
COMPANY
In order
to induce the Purchaser to enter into this Fifth Amendment and to purchase the
Supplementary Notes, the Company hereby represents and warrants to and agrees
with the Purchaser that, as of the dated hereof, after giving effect to the
consummation of the transactions contemplated hereby:
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 the Supplementary Notes 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
Fifth 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 Supplementary Notes shall be
used solely for the purposes set forth on Schedule 2.2 of this
Fifth Amendment.
(b) No
part of the proceeds from the sale of the Supplementary 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 Supplementary
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 the Supplementary Notes 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 the Supplementary Notes Closing Date, the authorized Capital Stock of the
Company will consist solely of 750,000,000 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 259,586,616
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
Supplementary Notes). Schedule 2.4 to this
Fifth Amendment sets forth the capitalization of the Company as of the
Supplementary Notes Closing Date.
(b) Except
as set forth on Schedule 2.4 to this
Fifth 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.
(c) The
Conversion Shares will have been duly authorized and validly reserved for
issuance in contemplation of the conversion of the Supplementary 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 Supplementary 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 Fifth Amendment or any of the transactions contemplated
hereby.
8
SECTION
2.6. Financial Statements;
Undisclosed Liabilities.
(a) The
unaudited balance sheet of the Company as of March 31, 2009 and the related
statements of income and cash flows of the Company for the three-month period
ended as of such date, 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.
(c) After
giving effect to the transactions 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 Supplementary 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 Supplementary Notes), which would subject the sale of the Supplementary
Notes contemplated hereby to the registration provisions of the Securities
Act.
9
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 SUPPLEMENTARY NOTES CLOSINGS
SECTION
4.1. Conditions to the Company’s
Obligations.
The issuance of the Supplementary Notes by the Company shall be subject to
the satisfaction, at or prior to the Supplementary Notes 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
Fifth Amendment to be performed and complied with by Purchaser at or prior to
the Supplementary Notes 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.
SECTION
4.2. Conditions to Purchaser’s
Obligations.
The obligations of Purchaser to purchase the Supplementary Notes
contemplated by this Fifth Amendment shall be subject to the satisfaction, at or
prior to the Supplementary Notes Closing Date (except as otherwise provided in
this Section 4.2), of the following conditions:
(a) On
the Supplementary Notes Closing Date and also after giving effect to the sale of
the Supplementary Notes on such date there shall exist no Default or Event of
Default.
(b) The
Interbank Peru Facility shall be in full force and effect, pursuant to documents
that are satisfactory in form and substance to Purchaser in its sole reasonable
discretion.
(c) All
of the loans and other amounts outstanding under the Loan Agreement, the Bridge
Loans and the Bridge Notes shall have been repaid in full pursuant to the funds
flow memorandum attached hereto as Schedule
4.2.
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(d) The
Company and/or one or more of its Majority-Owned Subsidiaries shall have access
to the Trimarine Facility and the ability to utilize it, on terms and conditions
satisfactory to Purchaser in its sole reasonable discretion, for the funding of
the Company’s and/or one or more of its Majority-Owned Subsidiaries’ feedstock
purchases in the ordinary course of business, pursuant to documents that are
satisfactory in form and substance to Purchaser in its sole reasonable
discretion.
(e) Purchaser
shall have received a certificate, dated the Supplementary Notes Closing Date
and signed on behalf of the Company by an Authorized Representative, certifying
on behalf of the Company that on the Supplementary Notes Closing Date and also
after giving effect to the sale of the Supplementary 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 Fifth Amendment
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on the Supplementary
Notes 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).
(f) Purchaser
shall have received from each of DLA Piper 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 covering such matters
incident to the transactions contemplated herein as the Purchaser may reasonably
request.
(g) Purchaser
shall have received a certificate from the Company, dated the Supplementary
Notes Closing Date, signed by an Authorized Representative, and attested to by
another Authorized Representative, in the form of Exhibit B, 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.
(h) On
the Supplementary Notes Closing Date, all corporate and legal proceedings and
all instruments and agreements in connection with the transactions contemplated
by this Fifth 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.
(i) Nothing
shall have occurred since March 31, 2009 (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.
11
(j) All
necessary governmental and third party approvals and/or consents in connection
with the transactions contemplated hereby 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 the
Supplementary Notes 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.
(k) Except
as set forth in Schedule 5.07 to the
Loan Agreement, on the Supplementary Notes Closing Date, there shall be no
actions, suits or proceedings pending or threatened (a) with respect to the
transactions contemplated hereby, this Fifth 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.
(l) Purchaser
shall have received a certificate representing the Supplementary Notes purchased
by Purchaser on the Supplementary Notes Closing Date.
(m) 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.
(n) 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 by and arising out of this Fifth Amendment, the
Repayment and the Refinancing, including, without limitation, the fees and
disbursements of White & Case LLP, New York counsel to the Purchaser,
Estudio Echecopar, Peruvian counsel to the Purchaser, and Xxxxxx Xxxxxx &
Xxxxxxx, Nevada counsel to the Purchaser. At least one Business Day
prior to the Supplementary Notes Closing Date, Purchaser shall provide the
Company with documentation reasonably satisfactory to the Company for such
disbursements and out-of-pocket expenses.
ARTICLE
V
MISCELLANEOUS
SECTION
5.1. Reference to and Effect on
the Agreement and the Initial Notes
(i) Upon
the execution of this Fifth 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 Fifth Amendment, the Agreement and the other
Transaction Documents shall remain in full force and effect and are hereby
ratified and confirmed.
12
(iii) This
Fifth Amendment shall constitute a “Transaction Document” and this Fifth
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 Supplementary Notes shall constitute “Registrable
Securities” under the Registration Rights Agreement.
SECTION
5.3. Governing
Law.
THIS FIFTH 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. Headings
Descriptive.
The headings of the several sections and subsections of this Fifth
Amendment are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Fifth Amendment.
SECTION
5.5. Counterparts.
This Fifth 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]
13
IN
WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment as of the
date first above written.
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By
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Name:
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Title:
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PLAINFIELD
PERU I LLC
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By
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Name:
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Title:
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PLAINFIELD
PERU II LLC
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By
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Name:
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Title:
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Signature
Page to Purchase Agreement
EXHIBIT
A
Form of Supplemental
Note
EXHIBIT
B
Form of Officer’s
Certificate
Sch.
2.1
Schedule 2.1 – Material
Agreements
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1.
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Existing
Debt
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a.
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Warrant
with Xxxxxxx Capital Partners, Ltd. dated April 19,
2007
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b.
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Warrant
with Condor Partners LLC dated April 19,
2007
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c.
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10%/12%
Senior Convertible PIK Election Note, dated September 12, 2007, issued by
Pure Biofuels Corp. to Plainfield Peru I LLC and all additional such notes
issued since such date.
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d.
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Loan
Agreement, dated September 12, 2007, by and among Pure Biofuels Corp.,
Pure Biofuels del Peru S.A.C., Palma Industrial S.A.C., Lenders and
Plainfield Special Situations Master Fund Limited, as amended through the
date hereof.
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e.
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Subsidiaries
Guaranty by and among Pure Biofuels del Peru S.A.C. and Pure Biofuels
Corp. in favor of Plainfield Special Situations Master Fund
Limited
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f.
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Environmental
Indemnity, dated as of September 12, 2007, by and between Pure Biofuels
del Peru S.A.C. and Palma Industrial S.A.C., in favor of Plainfield
Special Situations Master Fund
Limited
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g.
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Waiver
and Agreement, dated as of October 29, 2007, by and among Pure Biofuels
Corp., Pure Biofuels del Peru S.A.C., Palma Industrial S.A.C., the
subsidiaries of Pure Biofuels Corp. and Plainfield Special Situations
Master Fund Limited
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h.
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Agreement,
dated as of March 13, 2008, by Pure Biofuels Corp., Pure Biofuels del Peru
S.A.C. and Palma Industrial S.A.C.
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2.
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Other
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a.
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Amended
and Restated Stockholders Agreement, dated as of March 26, 2008, by and
among Pure Biofuels Corp., Xxxx Xxxxxxxx, Plainfield Special Situations
Master Fund Limited, Plainfield Peru I LLC and Plainfield Peru II
LLC.
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b.
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Securities
Purchase Agreement, dated September 12, 2007, by and among Pure Biofuels
Corp., Plainfield Special Situations Master Fund Limited, Plainfield Peru
I LLC and Plainfield Peru II LLC, as amended through the date
hereof.
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c.
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Registration
Rights Agreement, dated September 12, 2007, by and among Pure Biofuels
Corp., ARC Investment Partners, LLC, Tapirdo Enterprises, LLC and SGM
Capital, LLC
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d.
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Registration
Rights Agreement, dated September 12, 2007, by and among Pure Biofuels
Corp., Plainfield Special Situations Master Fund Limited, Plainfield Peru
I LLC and Plainfield Peru II LLC
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e.
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Employment
agreement with Xxxxxx Xxxxxx
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f.
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Amendment,
dated September 12, 2007, to the Employment Agreement dated June 22, 2007
by and between Pure Biofuels Corp. and Xxxxxx
Xxxxxx
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g.
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Complete
Settlement and Release Agreement, dated as of January 18, 2008, by and
among Xxxxxxx Capital Partners, Ltd. and Xxxxxxx Capital Markets, LLC and
Pure Biofuels Corp.
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h.
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Registration
Rights Agreement with Cornell dated April 19,
2007
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i.
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2006
Stock Option and Award Plan
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Sch.
2.1
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j.
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Stock
Incentive Plan approved by the Board of Directors on June 11,
2007
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k.
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Form
of Amendment to Option Agreement
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l.
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Letter
Agreement with ARC Investment Partners, LLC, Tapirdo Enterprises, LLC, SGM
Capital, LLC, Xxxx Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxxx, and Xxx
Xxxxxxx, dated February 6, 2007
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m.
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Financing
Contingency Escrow Agreement, dated June 22, 2007, with Xxxx Xxxxxxxx,
Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxxx, Xxx Xxxxxxx, ARC Investment Partners,
LLC, Tapirdo Enterprises, LLC, SGM Capital, LLC, and U.S. Bank National
Association
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n.
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Consulting
Agreement with Xxxx Xxxxxxx, dated July 9,
2007
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o.
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Consulting
Agreement with Xxxxx Xxxxxxxxxx, dated February 19,
2007
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p.
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Consulting
Agreement with Xxxxxx Xxxxx, dated February 26,
2007
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q.
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Consulting
Agreement with Integrated Corporate Relations, Inc., dated June 8,
2007
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r.
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Private
Placement Subscription Agreement with Xxx
Xxxxxxx
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s.
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Private
Placement Subscription Agreement with Xxxx X.
Xxxxxxxx
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t.
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Private
Placement Subscription Agreement with Software
S.A.
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u.
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Private
Placement Subscription Agreement with Technovale
Limited
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v.
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Private
Placement Subscription Agreement with CTH
One
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w.
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Complete
Settlement and Release Agreement with Xxxxxxxx Curhan Ford & Co.,
dated April 2008.
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x.
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Plainfield
Warrant Exchange Agreement, dated August 5,
2008
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y.
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Private
Placement Subscription Agreement with Marimed, dated August 8,
2008
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z.
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Private
Placement Subscription Agreement with Xxxx Xxxxx, dated August 8,
2008
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aa.
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Cornell
Warrant Exchange Agreement, dated September 8,
2008
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bb.
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Letter
Agreement, dated December 4, 2008, among FDS Corporation S.A., Trimarine
Corporation S. A. and Plainfield Peru I
LLC,
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cc.
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Promissory
Note of Pure Biofuels Corp. dated December 4, 2008 in the principal amount
of $500,000 and payable to Plainfield Peru I
LLC
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dd.
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Stock
Purchase Warrant dated December 4, 2008 for 3,333,333 shares of the common
stock of Pure Biofuels Corp. granted by Pure Biofuels Corp. to Plainfield
Peru I LLC
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ee.
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Promissory
Note of Pure Biofuels Corp. dated December 4, 2008 in the principal amount
of $1,000,000 and payable to FDS Corporation
S.A.
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ff.
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Stock
Purchase Warrant dated December 4, 2008 for 6,666,666 shares of common
stock of Pure Biofuels Corp. granted by Pure Biofuels Corp. to FDS
Corporation S.A.
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gg.
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Waiver
dated December 4, 2008 by Plainfield Special Situations Master Fund
Limited, as the Lender and Administrative Agent under the Loan Agreement,
and Plainfield Peru I LLC and Plainfield Peru II LLC, in favor of Pure
Biofuels Corp., Pure Biofuels Del Peru S.A.C. and Palma Industrial
S.A.C.
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hh.
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Stock
Purchase Warrant, dated April 8, 2009, for 13,333,333 shares of common
stock of Pure Biofuels Corp. granted by Pure Biofuels Corp. to Plainfield
Peru I LLC
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Sch.
2.1
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ii.
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Stock
Purchase Warrant, dated April 8, 2009, for 16,666,666 shares of common
stock of Pure Biofuels Corp. granted by Pure Biofuels Corp. to FDS
Corporation S.A.
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jj.
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Promissory
Note of Pure Biofuels Corp. dated April 28, 2009 in the principal amount
of $500,000 and payable to Plainfield Peru I
LLC
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kk.
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Promissory
Note of Pure Biofuels Corp. dated April 28, 2009 in the principal amount
of $500,000 and payable to FDS Corporation
S.A.
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ll.
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Promissory
Note of Pure Biofuels Corp. dated June 18, 2009 in the principal amount of
$250,000 and payable to Plainfield Peru I
LLC
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mm.
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Promissory
Note of Pure Biofuels Corp. dated June 18, 2009 in the principal amount of
$250,000 and payable to FDS Corporation
S.A.
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Pure Biofuels del Peru
S.A.C.
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1.
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Assets
Owned
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a.
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Agreement
for land located in front of the Xxxxxxxxxx Xxxxxxx, Xxx X-0, Xxxxx
Xxxxxxx, Xxxxxxxx and Province of El Callao, Department of Lima, Peru
(“Port of Callao”), dated December 21,
2006
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b.
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Agreement
for Distillation Towers, Safety Fire Pumps, Pumps and Static Mixer (the
“Plant Assets”) dated May 17, 2007
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2.
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Input/Supply
Agreements
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a.
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Supply
Agreement with Frutera Varfa S.A. dated January 10, 2007 and
Addendum
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b.
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National
Confederation of Palm Farmers and Peruvian Oil Palm Companies CONAPAL
Intended Agreement dated November 10,
2007
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3.
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Manufacture/Construction
Agreements
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a.
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Services
Agreement with Cesel S.A. dated May 7,
2007
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b.
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Building
contracts with Alta Beverage System Inc. dated June 28,
2007
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c.
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Building
contracts with Xxxx (EPC/Builders)
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d.
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Engineering
Contract dated September 29, 2006 and Addendum with Alta Beverage System
Inc. (Polindustria)
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e.
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Contrato
de Obras Civiles con Sevilla Rodríguez S.R. Ltda. Dated June 28,
2007
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f.
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Technology
License Agreement with Capricorn Del Peru S.A.C. dated September 4, 2006
and Addendum
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g.
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Engineering
Services Agreement with Liberty Process Technologies, LLC dated June 1,
2007
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h.
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Poliza
Pacifico- Contractor All Risk
|
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i.
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Polizia
Pacifico – Resumen Todo Riesgo Contratista (CAR)
1
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j.
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Polizia
Pacifico – Resumen Todo Riesgo Contratista (CAR)
2
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4.
|
Output/Sales
Agreements
|
|
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a.
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CDM
Emission Reductions Purchase
Agreement with Ecosecurities Group PLC (CER Off-take) dated
September 7, 2006
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Sch.
2.1
|
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5.
|
Existing
Debt
|
|
|
a.
|
Loan
Agreement, dated September 12, 2007, by and among Pure Biofuels Corp.,
Pure Biofuels del Peru S.A.C., Palma Industrial S.A.C., Lenders and
Plainfield Special Situations Master Fund
Limited
|
|
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b.
|
Note
in the name of Pure Biofuels del Peru
S.A.C.
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6.
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Other
|
|
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a.
|
Agreement
and Plan of Merger, dated as of December 4, 2007, by and among Pure
Biofuels Corp., Pure Biofuels del Peru S.A.C., Interpacific Oil S.A.C.,
and certain Target Stockholders identified
therein
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b.
|
Amendment
No. 1 to Agreement and Plan of Merger, dated as of January 23, 2007, by
and among Pure Biofuels Corp., Pure Biofuels del Peru S.A.C., Interpacific
Oil S.A.C., and certain Target Stockholders identified
therein
|
|
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c.
|
Integral
Services Agreement with Ocean Marine SAC dated August 13,
2007
|
|
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d.
|
Employment
Agreement with Xxxx Xxxxxxxx Xxxxxxxx (CEO) dated September 1,
2006
|
|
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e.
|
Employment
Agreement with Xxxxxxx X. Xxxxxxxx (CFO) dated September 1,
2006
|
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f.
|
Employment
Agreement with Xxxxxxx Xxxxx dated July 15,
2007
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g.
|
Lease
Agreement with Xxxxxxx Xxxxxx Marcinelli for office space and parking in
San Xxxxxx, dated July 25, 2007.
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h.
|
Frame
Contract in Technology with EC Technology dated February 15,
2007
|
|
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i.
|
Contrato
de Locacion de Servicios Informaticos with Infoland S.A. dated May 3,
2007
|
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j.
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Contrato
de Locación de Servicios de Seguridad Privada with High Power S.A. dated
Jauary 4, 2007.
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k.
|
Contrato
de Locación de Servicios para reparación xx xxxxxx con Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx dated July 2, 2007.
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|
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l.
|
Lease
Agreement with Xxxx Xxxxx Xxxxxxx dated May 30
2007
|
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m.
|
Service
Agreement dated August 6, 2007, by and between Ocean Marine S.A.C.
and Pure Biofuels Del Peru
S.A.C.
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Palma Industrial
S.A.C.
|
|
1.
|
Assets
Owned
|
|
a.
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Right
to acquire 10,000 hectares of land for Palm
Plantation
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|
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2.
|
Manufacture/Construction
|
|
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a.
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Services
Agreement and Addendum with ACM Perú Sac (for feasibility studies) dated
February 20, 2007
|
|
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3.
|
Other
|
|
|
a.
|
Employment
Agreement with Xxxxxxx Xxxxxx (General Manager at Palma Industrial S.A.C.)
dated September 28, 2007
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|
|
b.
|
Service
Agreement and Contract for Location of Services with Xxxxx International
Peru S.A.
|
Sch.
2.1
|
|
4.
|
Existing
Debt
|
|
|
a.
|
Loan
Agreement, dated September 12, 2007, by and among Pure Biofuels Corp.,
Pure Biofuels del Peru S.A.C., Palma Industrial S.A.C., Lenders and
Plainfield Special Situations Master Fund
Limited
|
|
|
b.
|
Note
in the name of Palma Industrial
S.A.C.
|
.Aceite
Pucallpa S.A.C.
|
|
1.
|
Assets
Owned
|
|
|
a.
|
Right
to acquire 10,000 hectares of land for Palm
Plantation
|
Palmas De Oriente
S.A.C.
|
|
1.
|
Assets
Owned
|
|
|
b.
|
Right
to acquire 10,000 hectares of land for Palm
Plantation
|
Palmas Tropicales
S.A.C.
|
|
1.
|
Assets
Owned
|
|
|
c.
|
Right
to acquire 10,000 hectares of land for Palm
Plantation
|
Pucapalma
S.A.C.
|
|
1.
|
Assets
Owned
|
|
|
d.
|
Right
to acquire 10,000 hectares of land for Palm
Plantation
|
Ecopalma
S.A.C.
|
|
2.
|
Assets
Owned
|
|
|
a.
|
Right
to acquire 10,000 hectares of land for Palm
Plantation
|
Sch.
2.1
Schedule 2.2 – Use of
Proceeds
See Source of Funds
Chart
Sch.
2.2
Schedule 2.4 –
Capitalization
Sch.
2.4
Schedule 4.2 – Funds Flow
Memorandum
Sch.
2.5
