THIRD AMENDMENT TO LOAN DOCUMENTS
Third Amendment to Loan Documents, dated as of November 4, 2008 (this
"Amendment"), among Pure Biofuels Corp. (the "Guarantor"), Pure Biofuels Del
Peru S.A.C. and Palma Industrial S.A.C. (each a "Borrower" and collectively, the
"Borrowers"), Plainfield Special Situations Master Fund Limited (in its
capacities as the Lender and the Administrative Agent), and the other Credit
Parties party hereto. All capitalized terms used herein and not otherwise
defined herein shall have the respective meanings provided such terms in the
Loan Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Guarantor, the Borrowers, the Lender and the
Administrative Agent are parties to that certain Loan Agreement, dated as of
September 12, 2007 (as amended by an amendment executed and delivered by the
Guarantor and the Borrowers on March 13, 2008 (the "First Amendment"), and as
further amended by an amendment dated as of April 18, 2008, among the Guarantor,
the Borrowers, Plainfield Special Situations Master Fund Limited (in its
capacities as the Lender and the Administrative Agent) and the other Credit
Parties party thereto (the "Second Amendment") (pursuant to which the Lender has
made Loans to the Borrowers in the aggregate outstanding principal amount of
$37,346,939.00, reduced the Interest Reserve to $0.00 and agreed to defer the
payment of interest with respect to the Loans during the period extending from
and including March 12, 2008 to but excluding October 1, 2008 (the "Deferred
Interest"), such Deferred Interest being due and payable in four equal monthly
installments on October 1, 2008, November 1, 2008, December 1, 2008 and January
1, 2009) (as so amended, the "Loan Agreement");
WHEREAS, the Loans are evidenced and secured by the Loan Agreement and
the other Loan Documents;
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend certain provisions of the Loan Documents as herein
provided.
NOW, THEREFORE, IT IS AGREED:
1. The Borrowers represent and warrant that the above recitals are
true and correct in all respects.
2. The Loan Documents are amended as follows:
(a) Section 1.01 of the Loan Agreement is hereby amended by
replacing the definitions of "Authorized Representative", "Securities Purchase
Agreement" and "Shareholders Agreement", respectively, with the following
definitions, respectively:
" 'Authorized Representative' means ▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
any person or persons that has or have been authorized by the board of
directors of Holdings or the Borrowers and are otherwise reasonably
acceptable to Plainfield Special Situations Master Fund Limited."
" 'Securities Purchase Agreement' shall mean the agreement, dated
September 12, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ I LLC, Plainfield Peru II LLC
and Holdings, as amended by a first amendment, dated as of March 26, 2008
and as further amended by a second amendment, dated November 4, 2008."
" 'Shareholders Agreement' shall mean the Shareholders Agreement,
dated September 12, ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ I LLC, Plainfield Peru II
LLC and the other shareholders party thereto, as amended by the amendment
dated as of March 26, 2008."
(b) Anything in Section 2.08 of the Loan Agreement or the other Loan
Documents to the contrary notwithstanding, the Deferred Interest shall be due
and payable on November 4, 2008.
3. Anything in the Loan Agreement or the other Loan Documents to
the contrary notwithstanding, each of the Borrowers and the other Credit Parties
hereby covenants and agrees to take all actions set forth on Exhibit A to this
Amendment, at their sole cost and expense, to implement a trust arrangement with
respect to the Collateral (including, without limitation, any collateral as a
result of securing the Loans made pursuant to the Second Amendment), which trust
arrangement (including, without limitation, the documentation therefor) shall be
in form and substance reasonably satisfactory to the Lender (the "Trust
Arrangement"), all of the above to be completed within the time period set forth
therein and the parties hereto acknowledge and agree that the Trust Arrangement
shall replace and subsume any prior obligations of the Borrowers as set forth in
the Loan Agreement or the other Loan Documents related to the Trust Arrangement
prior to the date hereof and that the failure to take any of the actions
required on Exhibit A to this Amendment, within the time period required, shall
give rise to an immediate Event of Default.
4. Except as set forth on Schedule 1 hereto, each of the Borrowers
and the other Credit Parties hereby represents and warrants that all of the
representations and warranties made by it in the Loan Agreement and the other
Loan Documents are true and correct as of the date made and, to the extent it is
a continuing representation or warranty, as of the Amendment Effective Date.
5. Each of the Borrowers and the other Credit Parties acknowledges,
confirms and agrees that (a) the aggregate principal amount of the Loans
outstanding immediately prior to the Amendment Effective Date is $37,346,939.00
and (b) it possesses no claims, defenses, offsets, rights of recoupment or
counterclaims of any kind or nature against the Lender or with respect to the
Loans, the Loan Documents or the enforcement thereof (collectively, the
"Claims"), nor does either of the Borrowers or any of the other Credit Parties
now have knowledge of any facts that would or might give rise to any Claims. If
facts now exist which would or could give rise to any Claim against the Lender
or with respect to the Loans, the Loan Documents or the enforcement thereof,
each of the Borrowers and the other Credit Parties hereby unconditionally,
irrevocably and unequivocally waives and fully releases any and all such Claims
as if such Claims were the subject of a law suit, adjudicated to final judgment
from which no appeal can be taken, and therein dismissed with prejudice. Each of
the Borrowers and the other Credit Parties hereby waives the provisions of any
applicable laws restricting the release of claims which the releasing party does
not know or suspect to exist at the time of release which, if
2
known, would have materially affected its decision to agree to this release. In
this regard, each of the Borrowers and the other Credit Parties hereby agrees,
represents and warrants to the Lender that it realizes and acknowledges that
factual matters now unknown to it may have given or may hereafter give rise to
causes of action, claims, demands, debts, controversies, damages, costs, losses
and expenses which are presently unknown, unanticipated and unsuspected, and
each of the Borrowers and the other Credit Parties further agrees, represents
and warrants that the release provided hereunder has been negotiated and agreed
upon in light of that realization, and that each of the Borrowers and the other
Credit Parties nevertheless hereby intends to release, discharge and acquit the
Lender from any such unknown causes of action, claims, demands, debts,
controversies, damages, costs, losses and expenses which are in any manner set
forth in or related to the Loans, the Loan Documents (including, without
limitation, the enforcement thereof), the Mortgaged Property, the improvements
located therein, the other Collateral and/or any and all dealings in connection
therewith.
6. (a) Each of the Borrowers and the other Credit Parties ratifies
and confirms each of the liens and security interests granted by it to the
Lender in the Loan Documents;
(b) (i) each of the Borrowers and the other Credit Parties ratifies
and confirms that the Security Documents create in favor of the Administrative
Agent, for the benefit of the Lender, a security interest in all right, title
and interest of each of the Borrowers and the other Credit Parties in those
items and types of collateral described in the Security Documents, as security
for the Obligations which include, without limitation, all Loans advanced to the
Borrowers under the Loan Agreement.
(ii) in furtherance of the foregoing, Section 1(i) of the Pledge
Agreement is hereby amended to replace the existing text following after the
words "each such Loan Document" and prior to the words "(all such obligations,
liabilities and indebtedness under this clause (i), being herein collectively
called the "Loan Document Obligations")" in its entirety with the following:
", an amendment to the Loan Agreement executed and delivered by
Holdings and the Borrowers on March 13, 2008, the Second Amendment to
Loan Documents, dated as of April 18, 2008 (the 'Second Amendment'),
among Holdings, Pure Biofuels and Palma, Plainfield Special Situations
Master Fund Limited (in its capacities as the Lender and the
Administrative Agent), and the other Credit Parties party thereto, the
Notes, dated April 18, 2008, issued by each of Pure Biofuels and Palma
in favor of Plainfield Special Situations Master Fund Limited pursuant
to the Second Amendment and the Third Amendment to Loan Documents,
dated as of November 4, 2008 (the 'Third Amendment'), among Holdings,
Pure Biofuels and Palma, Plainfield Special Situations Master Fund
Limited (in its capacities as the Lender and the Administrative
Agent), and the other Credit Parties party thereto";
(c) each of the Borrowers and the other Credit Parties acknowledges
and agrees that except as set forth in Section 2(b) as it applies to prior
payments of interest due under Section 11.01(b) of the Loan Agreement subsequent
to March 12, 2008 and prior to the
3
Amendment Effective Date and except as set forth in Section 3 as it applies to
the Trust Arrangement, the Lender has not waived, and by its execution and
delivery of this Amendment the Lender is not waiving, any Default or Event of
Default under the Loan Documents as amended hereby; and
(d) each of Holdings and the Subsidiary Guarantors ratifies and
confirms its Guaranty;
7. Each of the Loan Documents, as and to the extent amended hereby,
remains in full force and effect in accordance with the terms and provisions
thereof and hereof.
8. This Amendment is limited as specified and shall not constitute
a modification, acceptance or waiver of any other provisions of the Loan
Agreement or any other Loan Document. In the event of any conflict between this
Amendment and any of the Loan Documents, the terms and provisions of this
Amendment shall govern and control. Each of the Borrowers and the other Credit
Parties will do, execute, acknowledge and deliver, or cause to be done,
executed, acknowledged and delivered, at its sole cost and expense, all such
further acts, deeds, conveyances, mortgages, assignments, transfers, pledges and
assurances as the Lender may reasonably require or deem desirable for the better
assuring and confirming the terms and provisions of this Amendment.
9. From and after the Amendment Effective Date, each reference in
any Loan Document to any other Loan Document shall be deemed to be a reference
to such Loan Document as and to the extent amended hereby.
10. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with each of the Lender and the Borrowers.
11. The provisions of Sections 13.03 and 13.08 of the Loan Agreement
are incorporated by reference herein (as if set forth in full in this section)
so that this Amendment shall be subject to the terms and provisions of such
sections of the Loan Agreement.
12. This Amendment shall become effective on the first date (the
"Amendment Effective Date") on which each of the following conditions is
satisfied: (a) the Borrowers, the Lender and each of the other Credit Parties
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Lender (with a copy to White & Case LLP, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇, Esq. (facsimile
number 212-354-8113)); (b) the second amendment to the Securities Purchase
Agreement shall be effective and the Borrowers shall have paid to the Lender the
Deferred Interest in the aggregate amount of $2,322,779; (c) the Lender shall
have received an opinion letter, addressed to the Administrative Agent and the
Lender and dated the Amendment Effective Date, from each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Esquire, General Counsel of the Company, ▇▇▇▇▇ and ▇▇▇▇ LLP, special counsel to
the Company and Muniz, Ramirez, ▇▇▇▇▇-▇▇▇▇▇▇ & ▇▇▇▇-▇▇▇▇▇▇▇▇, special counsel to
4
the Borrowers with respect to this Amendment and such matters incident thereto
and to the transactions contemplated herein and therein as the Administrative
Agent may reasonably request; (d) the Lender shall have received (i) from each
Borrower, a certificate, dated the Amendment Effective Date and signed on behalf
of each of the Borrowers by an Authorized Representative of such Borrower in the
form of Exhibit B with appropriate insertions, together with copies of the
certificate or articles of incorporation and by-laws (or other equivalent
organizational documents), as applicable, of such Borrower and the resolutions
of such Borrower referred to in such certificate certifying on behalf of such
Borrower that all of the conditions in Sections 5.06 (for purposes of this
Amendment, the reference to June 30, 2007 in Section 5.06 shall instead refer to
June 30, 2008) and 5.07 of the Loan Agreement have been satisfied on such date
and (ii) from each Credit Party other than the Borrowers, a certificate, dated
the Amendment Effective Date, signed by an Authorized Representative of such
Credit Party, and attested to by another Authorized Representative of such
Credit Party, in the form of Exhibit B with appropriate insertions, together
with copies of the certificate or articles of incorporation and by-laws (or
other equivalent organizational documents), as applicable, of such Credit Party
and the resolutions of such Credit Party referred to in such certificate, and
each of (i) and (ii) above shall be in form and substance reasonably acceptable
to the Lender; and (e) if requested by the Lender on or prior to November 4,
2008, the Lender shall have received such other documents and evidence as are
customary for transactions of this type or as the Lender may reasonably request
in order to evidence the satisfaction of the other conditions set forth above.
* * *
5
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the date first set forth above.
LENDER:
PLAINFIELD SPECIAL SITUATIONS
MASTER FUND LIMITED,
as the Lender and the
Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Individual
BORROWERS:
PURE BIOFUELS DEL PERU S.A.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
PALMA INDUSTRIAL S.A.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
OTHER CREDIT PARTIES:
PURE BIOFUELS CORP.,
as a Guarantor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
ACEITE PUCALLPA S.A.C.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
PALMAS TROPICALES S.A.C.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
PUCAPALMA S.A.C.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
ECOPALMA S.A.C.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
7
PALMAS DE ORIENTE S.A.C.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
The undersigned agrees that the Credit Parties entry into this Amendment will
not violate the terms of the Securities Purchase Agreement and the Convertible
Notes issued thereunder.
PLAINFIELD PERU I LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Person
PLAINFIELD PERU II LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Person
8