EXECUTION COPY
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FOURTH AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
BY AND AMONG
PURE BIOFUELS CORP.
AND
PLAINFIELD PERU I LLC
PLAINFIELD PERU II LLC
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Dated as of March 27, 2009
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TABLE OF CONTENTS
Page
ARTICLE I AMENDMENTS TO THE AGREEMENT..........................................1
SECTION 1.1. Definitions..................................................1
SECTION 1.2. The Notes....................................................2
SECTION 1.3. Convertibility...............................................2
SECTION 1.4. Forced Conversion............................................2
ARTICLE II 2009 GENERAL OBLIGATION ADDITIONAL NOTES............................3
SECTION 2.1. Amendment and Restatement....................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................3
SECTION 3.1. Incorporation of Representations and Warranties from the
Third Amendment............................................3
SECTION 3.2. Anti-Dilution................................................3
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.....................3
SECTION 4.1. Incorporation of Representations and Warranties from the
Agreement..................................................3
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS..................................4
SECTION 5.1. Conditions to the Company's Obligations......................4
SECTION 5.2. Conditions to Purchaser's Obligations........................4
ARTICLE VI MISCELLANEOUS.......................................................5
SECTION 6.1. Reference to and Effect on the Agreement and the Initial
Notes......................................................5
SECTION 6.2. Registration Rights Agreement................................6
SECTION 6.3. Governing Law................................................6
SECTION 6.4. Expenses.....................................................6
SECTION 6.5. Headings Descriptive.........................................6
SECTION 6.6. Counterparts.................................................6
(i)
FOURTH AMENDMENT TO SECURITIES PURCHASE AGREEMENT
FOURTH AMENDMENT TO SECURITIES PURCHASE AGREEMENT dated as of March
27, 2009 (this "Fourth 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 4, 2008 and a Third Amendment to
Securities Purchase Agreement dated as of March 10, 2009, the "Agreement"), by
and among the Company, LLC 1 and LLC 2 for the purchase of 10%/12% Senior
Convertible PIK Election Notes due 2012, Common Stock and warrants to purchase
shares of Common Stock;
WHEREAS, pursuant to the Third Amendment, the Company agreed, subject
to the terms and conditions set forth therein, to issue and sell to Purchaser,
and Purchaser agreed, subject to the terms and conditions set forth therein, to
purchase $2,200,000 in aggregate principal amount of 2009 General Obligation
Additional Notes, of which $1,000,000 in aggregate principal amount of 2009
General Obligation Additional Notes were issued and sold by the Company to the
Purchaser on March 10, 2009;
WHEREAS, the parties hereto desire to amend the terms of the 2009
General Obligation Additional Notes; 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:
"Exchange Notes" has the meaning set forth in Section 4(b) of the 2009
General Obligation Additional Notes.
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"Fourth Amendment" means the Fourth Amendment to Securities Purchase
Agreement, dated as of March 27, 2009, by and among the Company and
Purchaser.
In addition, the definitions of "2009 Additional Notes" and "2009 General
Obligation Additional Notes" in clause (a) of Article I of the Agreement are
replaced with the following definitions:
"2009 Additional Notes" means (i) the 10%/12% Senior Convertible PIK
Election Notes due 2012 issued by the Company on each of the First 2009
Additional Notes Closing Date, the March 2009 Deferred Interest Additional
Notes Closing Date and the Second 2009 Additional Notes Closing Date; (ii)
the Exchange Notes and (iii) any such notes issued in substitution therefor
pursuant to Section 12 of the Agreement and any notes issued in kind as
interest pursuant to the terms of the 2009 Additional Notes; provided that
any notes issued pursuant to this clause (iii) shall have the same terms
and conditions as the underlying notes which are being substituted or for
which interest is being paid (for the avoidance of doubt, the notes issued
in kind as interest on the 2009 General Obligation Additional Notes shall
have an initial conversion price of $0.04 per share, subject to adjustment
as provided in the Agreement).
"2009 General Obligation Additional Notes" has the meaning set forth
in the preamble of the Third Amendment, in substantially the form set forth
in Exhibit A of the Fourth Amendment.
"Conversion Shares" means the shares of Common Stock issuable upon the
conversion of the Notes or in connection with the issuance of the Exchange
Notes.
SECTION 1.2. The Notes. Section 3.1 of the Agreement is hereby amended
by amending and restating the last sentence of the last paragraph thereof to
read as follows:
"The 2009 Additional Notes (other than the 2009 General Obligation
Additional Notes) shall be substantially in the form set forth in
Exhibit A."
SECTION 1.3. Convertibility. Section 3.5(a) of the Agreement is hereby
amended by amending and restating the first sentence thereof to read as follows:
"The Holders of the Notes (other than the Exchange Notes) will be entitled
at any time after the Amendment Date and on or prior to the Final Maturity
Date to convert any or all of their Notes into shares of Common Stock at
the Conversion Price per share."
SECTION 1.4. Forced Conversion. Section 3.7 of the Agreement is hereby
amended by inserting a new sentence at the end thereof to read as follows:
"Notwithstanding anything to the contrary herein, this Section 3.7 shall
not apply to the Exchange Notes."
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ARTICLE II
2009 GENERAL OBLIGATION ADDITIONAL NOTES
SECTION 2.1. Amendment and Restatement. The parties hereto agree to
the amendment and restatement of the 2009 General Obligation Additional Notes
issued in connection with the First Additional Notes Closing, substantially in
the form of the Amended and Restated 10%/12% Senior Convertible PIK Election
Notes due 2012 attached as Exhibit B hereto (the "Amended and Restated Note"),
on March 27, 2009 or such other date as the parties shall mutually agree upon
(the "Closing Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
In order to induce the Purchaser to enter into this Fourth Amendment,
the Company hereby represents and warrants to and agrees with the Purchaser
that, as of the date hereof, after giving effect to the consummation of the
transactions contemplated hereby:
SECTION 3.1. Incorporation of Representations and Warranties from the
Third Amendment. The representations and warranties contained in the Third
Amendment 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).
SECTION 3.2. Anti-Dilution. The execution and performance of (a) this
Fourth Amendment and all of the transactions described herein and (b) the
Performance Bond Agreement, dated as of March 27, 2009, between FDS Corporation
S.A. and the Company and all other agreements and documents executed in
connection with the Company's obtainment of a performance bond of up to the
amount of $2,500,000 for certain terminaling and bonded warehouse operations
(collectively, the "FDS Agreement"), will not require an anti-dilution
adjustment under Section 3.6 of the Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
Purchaser hereby represents and warrants to the Company as follows:
SECTION 4.1. 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
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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 V
CONDITIONS PRECEDENT TO OBLIGATIONS
SECTION 5.1. Conditions to the Company's Obligations. The issuance of
the Amended and Restated Note by the Company shall be subject to the
satisfaction, at or prior to the 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 Fourth Amendment to be performed and complied
with by Purchaser at or prior to the 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 5.2. Conditions to Purchaser's Obligations. The obligations of
Purchaser hereunder shall be subject to the satisfaction of the following
conditions:
(a) On the Closing Date and also after giving effect to the issuance
of the Amended and Restated Note there shall exist no Default or Event of
Default.
(b) Purchaser shall have received a certificate, dated the Closing
Date and signed on behalf of the Company by an Authorized Representative,
certifying on behalf of the Company that on the Closing Date and also after
giving effect to the issuance of the Amended and Restated Note on such date (i)
there shall exist no Default or Event of Default and (ii) all representations
and warranties incorporated by reference in this Fourth 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 Closing Date (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
(c) Purchaser shall have received from Xxxxx Xxxxxxxxxx, Esquire,
General Counsel of the Company, an opinion addressed to Purchaser and dated the
Closing Date covering such matters incident to the transactions contemplated
herein as the Purchaser may reasonably request.
(d) Purchaser shall have received a certificate from the Company,
dated the Closing Date, signed by an Authorized Representative, confirming that
the certificate issued pursuant to Section 4.2(e) of the Third Amendment is true
and correct as of the Closing Date.
(e) On the Closing Date, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated by
this Fourth
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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.
(f) Nothing shall have occurred since September 30, 2008 (and
Purchaser shall have not have become aware of any facts or conditions not
previously known) which Purchaser shall determine has had, or could reasonably
be expected to have, (i) a Material Adverse Effect or (ii) a material adverse
effect on the transactions contemplated hereby.
(g) 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 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.
(h) Except as set forth in Schedule 5.07 to the Loan Agreement, on
the Closing Date, there shall be no actions, suits or proceedings pending or
threatened (a) with respect to the transactions contemplated hereby, this Fourth
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.
(i) Purchaser shall have received, in form and substance satisfactory
to the Purchaser in its sole discretion, a copy of the FDS Agreement duly
executed by the parties thereto.
(j) Purchaser shall have received a certificate representing the
Amended and Restated Note on the Closing Date.
(k) 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.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Reference to and Effect on the Agreement and the Initial
Notes.
(i) Upon the execution of this Fourth 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
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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 Fourth Amendment, the Agreement
and the other Transaction Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(iii) This Fourth Amendment shall constitute a "Transaction Document" and
this Fourth Amendment shall constitute a "Note Document" for all purposes of the
Agreement and the other Transaction Documents.
SECTION 6.2. Registration Rights Agreement. The parties hereto agree
that the shares of Common Stock issuable in connection with the Exchange Note
shall constitute "Registrable Securities" under the Registration Rights
Agreement.
SECTION 6.3. Governing Law. THIS FOURTH 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 6.4. Expenses. The Company shall reimburse the Purchaser for
all reasonable disbursements and out-of-pocket expenses incurred by the
Purchaser in connection with the transactions contemplated hereby, including,
without limitation, the fees and disbursements of White & Case LLP, counsel to
the Purchaser. On the Closing Date, Purchaser shall provide the Company with
documentation reasonably satisfactory to the Company for such disbursements and
out-of-pocket expenses.
SECTION 6.5. Headings Descriptive. The headings of the several
sections and subsections of this Fourth Amendment are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Fourth Amendment.
SECTION 6.6. Counterparts. This Fourth 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 Fourth
Amendment as of the date first above written.
PURE BIOFUELS CORP.
By:
-------------------------
Name:
Title:
Each of the undersigned agrees that all references to the "Convertible Note
Documents" in the Loan Agreement shall mean the Convertible Note Documents as
amended by this Fourth Amendment.
Address:
Xx. Xxxxxxx x Xxxxxxx 000 xx 000 XXXX XXXXXXXX XXX XXXX S.A.C.
San Xxxxxx, Lima
Peru
Attention: Xxxx Xxxxxxxx By:
Telephone: x000-000-0000 -------------------------
Facsimile: x000-000-0000 Name:
Title:
Address:
Xx. Xxxxxxx x Xxxxxxx 000 of 402 PALMA INDUSTRIAL S.A.C.
San Xxxxxx, Lima
Peru
Attention: Xxxx Xxxxxxxx By:
Telephone: x000-000-0000 -------------------------
Facsimile: x000-000-0000 Name:
Title:
Address:
000 Xxxxxx Xxxxxx PURE BIOFUELS CORP.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxx, Xxxxx Xxxxxxxxxx By:
Telephone: (000) 000-0000 -------------------------
Facsimile: (000) 000-0000 Name:
Title:
PLAINFIELD PERU I LLC
By:
-------------------------
Name:
Title:
PLAINFIELD PERU II LLC
By:
-------------------------
Name:
Title:
The undersigned agrees that the amendment and restatement of the 2009 General
Obligation Additional Notes, the use of the proceeds thereof and the execution
and performance of the FDS Agreement will not violate the terms of the Loan
Agreement.
PLAINFIELD SPECIAL SITUATIONS
MASTER FUND LIMITED
By:
-------------------------
Name:
Title:
EXHIBIT A
Form of 2009 General Obligation Additional Notes
See attached.
EXHIBIT B
Amended and Restated 10%/12% Senior Convertible PIK Election Notes due 2012
See attached.
