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