FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT BY AND BETWEEN PURE BIOFUELS CORP. AND PLAINFIELD PERU I LLC PLAINFIELD PERU II LLC Dated as of March 26, 2008
FIRST
AMENDMENT TO
BY
AND
BETWEEN
AND
PLAINFIELD
PERU I LLC
PLAINFIELD
PERU II LLC
______________________________
Dated
as
of March 26, 2008
______________________________
TABLE
OF CONTENTS
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Page
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ARTICLE
I AMENDMENTS TO THE AGREEMENT
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1
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SECTION
1.1. Definitions
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1
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SECTION
1.2. Sale and Purchase.
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2
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SECTION
1.3. The Notes.
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3
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SECTION
1.4. Affirmative Covenants
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3
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SECTION
1.5. Negative Covenants
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4
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ARTICLE
II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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5
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SECTION
2.1. Incorporation of Representations and Warranties from the
Agreement
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5
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SECTION
2.2. Use of Proceeds
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5
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SECTION
2.3. No Adjustment to Conversion Price
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5
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SECTION
2.4. Capital Stock
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5
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SECTION
2.5. Brokers and Finders .
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6
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SECTION
2.6. Financial Statements; Undisclosed Liabilities
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6
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ARTICLE
III REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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7
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SECTION
3.1. Incorporation of Representations and Warranties from the
Agreement
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7
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ARTICLE
IV CONDITIONS PRECEDENT TO ADDITIONAL NOTES CLOSING
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7
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SECTION
4.1. Conditions to the Company’s Obligations
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7
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SECTION
4.2. Conditions to Purchaser’s Obligations
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7
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ARTICLE
V MISCELLANEOUS
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9
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SECTION
5.1. Reference to and Effect on the Agreement and the Initial
Notes
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9
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SECTION
5.2. Registration Rights Agreement
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9
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SECTION
5.3. Stock Purchase Warrant
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9
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SECTION
5.4. Governing Law
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10
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SECTION
5.5. Expenses
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10
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SECTION
5.6. Headings Descriptive
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10
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SECTION
5.7. Counterparts
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10
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(i)
FIRST
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
FIRST
AMENDMENT TO SECURITIES PURCHASE AGREEMENT dated as of March 26, 2008 (this
“First Amendment”), by and between 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 (the “Agreement”), by and between the Company, LLC 1 and LLC 2 for the
purchase of $10,000,000 aggregate principal amount of 10%/12% Senior Convertible
PIK Election Notes due 2012, Common Stock and warrants to purchase shares of
Common Stock;
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 $5,000,000 aggregate
principal amount of 10%/12% Senior Convertible PIK Election Notes due 2012,
convertible into 16,666,667 shares of Common Stock (subject to
adjustment);
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:
“Additional
Notes”
means
the 10%/12% Senior Convertible PIK Election Notes due 2012 issued by the Company
on the 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 Additional
Notes).
“Additional
Notes Closing”
has
the
meaning set forth in Section 2.4 of the Agreement.
1
“Additional
Notes Closing Date”
has
the
meaning set forth in Section 2.4 of the Agreement.
“Amended
and Restated Stockholders Agreement”
means
the agreement, dated March 26, 2008, among LLC1, LLC2, the Company and the
other
stockholders party thereto.
“Employment
Agreements”
has
the
meaning ascribed to such term in the Loan Agreement.
“Initial
Notes”
means
the 10%/12% Senior Convertible PIK Election Notes due 2012 issued by the Company
on the 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 Initial Notes).
“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 this First Amendment.
“Merger
Warrants”
means
the warrants to purchase 2,166,667 shares of Common Stock with an exercise
price
of $0.60 per share issued to LLC II on January 24, 2008 in connection with
the
Binding Letter of Intent and Section 3.6(m) of the Agreement.
“Notes”
means
the Initial Notes, the 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.
In
addition, the definition of “Conversion Price” in clause (a) of Article I of the
Agreement is replaced with the following definition:
“Conversion
Price”
means
$0.30 for the Notes, subject to adjustments set forth in Section
3.6.
SECTION
1.2. Sale
and Purchase.
Article
II of the Agreement is hereby amended by inserting a new Section 2.3 and 2.4
as
follows:
SECTION
2.3. 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,
on the Additional Notes Closing Date, $5,000,000 in aggregate principal amount
of the Additional Notes for a purchase price of $5,000,000 (the “Additional
Notes Purchase Price”).
SECTION
2.4. Additional
Notes Closing.
Subject
to the satisfaction or waiver of the conditions set forth in this Agreement,
the
purchase and sale of the Additional Notes hereunder (the “Additional 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
March 26, 2008 or on such other date as the parties shall mutually agree upon
(the “Additional Notes Closing Date”).
2
At
the
Additional Notes Closing:
(i) Purchaser
shall deliver an amount equal to the Purchase Price (net of a funding fee in
the
amount of $100,000) via wire transfer of immediately available funds to such
bank account as the Company shall have designated not later than one Business
Day prior to the Additional Notes Closing Date.
(ii) The
Company shall deliver to Purchaser against payment of the Purchase Price, a
certificate or certificates representing the Additional Notes being purchased
by
Purchaser pursuant to Section 2.3, 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 Additional 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 $5,000,000 aggregate principal amount
of
the Additional Notes to be issued on the Additional Notes Closing Date and
any
Notes to be issued in kind as interest. The Additional Notes shall be
substantially in the form set forth in Exhibit A.
SECTION
1.4. Affirmative
Covenants.
Article
VI of the Agreement is hereby amended by replacing Section 6.7 in its entirety
and by inserting a new Section 6.19 and 6.20, as set forth below:
SECTION
6.7. Plainfield
Director.
(a)
From and after the Additional Notes Closing Date, Purchaser or its Affiliates
(or any transferee of more than 50% of the Notes held by Purchaser) shall have
the right to designate up to a total of three Directors (each a “Plainfield
Director”). As promptly as practicable after the Additional Notes Closing Date,
the Board of Directors shall elect the persons so designated to the Board of
Directors. In connection with any annual or special meeting of stockholders
of
the Company where Directors are to be elected, the persons designated by the
Purchaser to be Plainfield Directors shall be nominated by the Board of
Directors or any nominating committee thereof.
(b)
Purchaser or its Affiliates shall have the right to designate any replacement
for a Plainfield Director designated for nomination or nominated in accordance
with this Section 6.7 upon the death, resignation, retirement, disqualification
or removal from office for other cause of such Director. The Board of Directors
of the Company shall elect each person so designated.
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(c)
The
Company shall use its best efforts to solicit from the stockholders of the
Company eligible to vote for the election of Directors proxies in favor of
the
nominees selected in accordance with this Section 6.7.
(d)
If at
any time Purchaser has the right to nominate Directors pursuant to this Section
6.7 but fails to exercise this right, then Purchaser or its Affiliates shall
have the right to appoint one (1) representative for each director not so
nominated (each an “Observer”). The Observer(s) shall have the right to attend
meetings of the Board of Directors in a nonvoting observer capacity, to receive
notice of such meetings and to receive the information provided by the Company
to the Board of Directors.
(e)
Purchaser will have a right to effectuate their rights pursuant to this Section
6.7 so long as any Notes remain outstanding or Purchaser holds at least 5%
of
the Company’s outstanding Common Shares.
(f)
A
quorum of the Board of Directors shall require the presence of the Plainfield
Director(s).
(g)
The
Company will not increase the number of Directors above six.
SECTION
6.19 Amendment
of Bylaws.
The
Company agrees to cause the bylaws of the Company to be amended by the
Additional Notes Closing Date to include the provisions set forth in Section
6.7
(a) and (f) above; provided that such provisions shall only be in force so
long
as any Notes remain outstanding or Purchaser holds at least 5% of the Company’s
outstanding Common Shares.
SECTION
6.20 Post-Closing
Actions.
Notwithstanding anything to the contrary contained in this Agreement or the
other Transaction Documents, each of the Company and each of its Subsidiaries
hereby covenants and agrees to take all actions set forth on Schedule 6.20
to
this First Amendment to guarantee and/or secure the Notes within the time period
set forth therein and the parties hereto acknowledge and agree that the failure
to take any of the actions required on Schedule 6.20 to this First Amendment,
within the relevant time periods required, shall give rise to an immediate
Event
of Default pursuant to this Agreement.
SECTION
1.5. Negative
Covenants.
Article
VII of the Agreement is hereby amended by inserting a new Section 7.11, as
follows:
SECTION
7.11 Management Agreements, Employment Agreements, Material Agreements. Enter
into any agreements of, or with respect to, the management of the Company or
any
of its Subsidiaries (collectively, the “New Management Agreements”), any
material employment agreement entered into by the Company of any of its
Subsidiaries (collectively, the “New Employment Agreements”) or any agreement or
series of related agreements involving aggregate consideration payable to or
by
the Company or its Subsidiaries in excess of U.S. $100,000, or amend, modify
or
change any provision of any existing Management Agreement, Employment Agreement
or Material Agreement.
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ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
OF
THE
COMPANY
In
order
to induce the Purchaser to enter into this First Amendment and to purchase
the
Additional Notes, the Company hereby represents and warrants to and agrees
with
the Purchaser that on the date hereof, after giving effect to the consummation
of the transactions contemplated hereby 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, other than Sections 8.05(b) and 8.10, 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); provided that Schedule 2.1
to
this First Amendment updates Schedule 8.23 of the Loan Agreement as of the
date
hereof.
SECTION
2.2. Use
of
Proceeds.
(a) All
proceeds from the sale of the Additional Notes shall be used solely for the
purposes set forth on Schedule 2.2 of this First Amendment.
(b)
No
part of the proceeds from the sale of the 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; provided,
however,
that
the Company may use the proceeds thereof to repurchase Common Stock in such
manner as the Board of Directors (including the Plainfield Directors (as defined
in the Amended and Restated Stockholders Agreement) may approve. Neither the
sale of the 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 set forth on Schedule 2.3 hereto, nothing has occurred since the 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 Additional Notes Closing Date, the authorized Capital Stock of the
Company will consist solely of 250,000,000 shares of Common Stock and 1,000,000
shares of preferred stock, of which 77,687,871 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 93,259,520
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
Additional Notes). Schedule
4.7
to this
First Amendment sets forth the capitalization of the Company as of the
Additional Notes Closing Date.
(b) Except
as
set forth on Schedule
4.7
to this
First 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.
5
(c) The
Conversion Shares are duly authorized and validly reserved for issuance in
contemplation of the conversion of the 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 Additional Notes will, upon issuance thereof, have the rights
set
forth in the Form of Note (subject to the limitations and qualifications set
forth therein).
SECTION
2.5. Brokers
and Finders.
Except
as set forth on Schedule 2.5 to this First Amendment, 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 First 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, 2007 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 reason-ably 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.
6
(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.
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 ADDITIONAL NOTES CLOSING
SECTION
4.1. Conditions
to the Company’s Obligations.
The
issuance of the Additional Notes by the Company shall be subject to the
satisfaction, at or prior to the Additional Notes Closing, 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
First Amendment to be performed and complied with by Purchaser at or prior
to
the Additional 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 Additional Notes contemplated by this
First Amendment shall be subject to the satisfaction, at or prior to the
Additional Notes Closing, of the following conditions:
(a) On
the
Additional Notes Closing Date and also after giving effect to the sale of the
Additional Notes on such date there shall exist no Default or Event of
Default.
(b) Purchaser
shall have received a certificate, dated the Additional Notes Closing Date
and
signed on behalf of the Company by an Authorized Representative, certifying
on
behalf of the Company that on the Additional Notes Closing Date and also after
giving effect to the sale of the 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 First 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 Additional 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).
7
(c) Purchaser
shall have received from each of DLA Piper US LLP and ▇▇▇▇▇
and
▇▇▇▇ LLP, special counsel to the Company and Muniz, Ramirez, ▇▇▇▇▇-▇▇▇▇▇▇ &
▇▇▇▇-▇▇▇▇▇▇▇▇,
special
counsel to the Subsidiaries, an opinion addressed to Purchaser and dated the
Additional Notes 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 Additional Notes
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.
(e) On
the
Additional Notes Closing Date, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated
by
this First 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, 2007 (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 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 Additional 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.
(h) Except
as
set forth in Schedule
5.07
to the
Loan Agreement, on the Additional Notes Closing Date, there shall be no actions,
suits or proceedings pending or threatened (a) with respect to the transactions
contemplated hereby, this First 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.
8
(i) The
Company and the stockholders party thereto shall have executed and delivered
the
Amended and Restated Stockholders Agreement.
(j) The
bylaws of the Company shall have been amended to include the provisions set
forth in Section 6.7 (a) and (f).
(k) Purchaser
shall have received certificates representing the Additional Notes purchased
by
Purchaser.
(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.
ARTICLE
V
MISCELLANEOUS
SECTION
5.1. Reference
to and Effect on the Agreement and the Initial Notes
(i) Upon
the
execution of this First 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 First Amendment, the Agreement and the other
Transaction Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(iii) This
First Amendment and the Amended and Restated Stockholders Agreement shall each
constitute a “Transaction Document” and this First 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 Additional Notes shall constitute “Registrable Securities” under the
Registration Rights Agreement.
SECTION
5.3. Stock
Purchase Warrant.
The
parties hereto agree that the definition of the term “Exercise Price” in Section
5(e) of the Warrants and the Merger Warrants, shall be replaced with the
following definition:
“Exercise
Price” means $0.30, as adjusted in accordance with Section 2 hereof.
9
SECTION
5.4. Governing
Law.
THIS
FIRST 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
5.5. 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
Additional Notes Closing Date, Purchaser shall provide the Company with
documentation reasonably satisfactory to the Company for such disbursements
and
out-of-pocket expenses.
SECTION
5.6. Headings
Descriptive.
The
headings of the several sections and subsections of this First Amendment are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this First Amendment.
SECTION
5.7. Counterparts.
This
First 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 TO FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have executed this First Amendment as of
the
date first above written.
By
/s/
▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer and Director
Each
of
the undersigned agrees that all references to the “Convertible Note Documents”
in the Loan Agreement shall mean as the Convertible Note Documents are amended
by this First Amendment and by the Amended and Restated Stockholders Agreement
and by any amendments in connection with Section 6.20 of this First Amendment.
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Address:
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Facsimile: ▇▇▇▇-▇▇▇-▇▇▇▇
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PURE BIOFUELS DEL PERU S.A.C.
By:
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Name:
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Title:
Authorized Signatory
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Address:
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Attention: ▇▇▇▇
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Telephone: ▇▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇▇-▇▇▇-▇▇▇▇
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PALMA
INDUSTRIAL S.A.C.
By:
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Name:
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Title:
Auhtorized Signatory
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Address:
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Facsimile: (▇▇▇)
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By:
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Name:
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Title:
Chief Executive Officer and
Director
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PLAINFIELD
PERU I LLC
By
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Name:
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Title:
Authorized Signatory
PLAINFIELD
PERU II LLC
By
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Name:
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Title:
Authorized Signatory
The
undersigned agrees that the Company’s issuance of 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.
PLAINFIELD
SPECIAL SITUATIONS MASTER FUND LIMITED
By
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Name:
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Title:
Authorized Signatory