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FIFTH 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 July 16, 2009
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TABLE OF CONTENTS
Page
ARTICLE I AMENDMENTS TO THE AGREEMENT..........................................2
SECTION 1.1. Definitions.....................................................2
SECTION 1.2. Sale and Purchase...............................................5
SECTION 1.3. The Notes.......................................................6
SECTION 1.4. Excess Cash Flow................................................7
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................7
SECTION 2.1. Incorporation of Representations and Warranties
from the Agreement.............................................7
SECTION 2.2. Use of Proceeds.................................................8
SECTION 2.3. No Adjustment to Conversion Price...............................8
SECTION 2.4. Capital Stock...................................................8
SECTION 2.5. Brokers and Finders.............................................8
SECTION 2.6. Financial Statements; Undisclosed Liabilities...................9
SECTION 2.7. Private Offering................................................9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASER...................10
SECTION 3.1. Incorporation of Representations and Warranties
from the Agreement............................................10
ARTICLE IV CONDITIONS PRECEDENT TO SUPPLEMENTARY NOTES CLOSINGS...............10
SECTION 4.1. Conditions to the Company's Obligations........................10
SECTION 4.2. Conditions to Purchaser's Obligations..........................10
ARTICLE V MISCELLANEOUS.......................................................12
SECTION 5.1. Reference to and Effect on the Agreement
and the Initial Notes.........................................12
SECTION 5.2. Registration Rights Agreement..................................13
SECTION 5.3. Governing Law..................................................13
SECTION 5.4. Headings Descriptive...........................................13
SECTION 5.5. Counterparts...................................................13
(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).
W I T N E S S E T H:
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;
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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:
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(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:
(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
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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 Peru - 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.
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"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
(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
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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.
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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,
8
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.
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.
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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.
(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
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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.
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(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]
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IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment as of the date first above written.
PURE BIOFUELS CORP.
By:
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Name:
Title:
PLAINFIELD PERU I LLC
By:
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Name:
Title:
PLAINFIELD PERU II LLC
By:
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Name:
Title:
