THIRD AMENDMENT TO SECURITIES PURCHASE AND SALE AGREEMENT
THIRD
AMENDMENT TO
This
THIRD AMENDMENT TO SECURITIES PURCHASE AND SALE AGREEMENT (this “Third
Amendment”) is entered into and effective as of this 21st day of
July, 2010 (the “Effective
Date”) by and among Central Energy, LLC (“Buyer”),
Rio Vista Energy Partners, L.P. (the “Company”)
and Penn Octane Corporation (“Seller”). Buyer,
the Company and Seller each a “Party” and
collectively the “Parties”.
WHEREAS,
the Parties have entered into that certain Securities Purchase and Sale
Agreement Dated May 25, 2010 (the “Agreement”)
which provided, inter
alia, for (i) an aggregate Purchase Price of $4,000,000, (ii) payment of
the Intercompany Note in an amount up to $1,600,000, and (iii) an Outside Date
of July 1, 2010 for the Closing of the transactions contemplated by the
SPA.
WHEREAS,
the Parties entered into that certain Amendment to Securities Purchase and Sale
Agreement dated July 1, 2010, whereby the Parties extended the Outside Date, and
provided for Buyer to have the option to further extend the Outside
Date.
WHEREAS,
the Parties entered into that certain Second Amendment to Securities Purchase
and Sale Agreement dated July 8, 2010, whereby the Parties, inter alia, (i) extended the
Outside Date, (ii) increased the Common Unit Purchase Price by $100,000, (iii)
increased the amount by which the Intercompany Note was potentially subject to
adjustment, and (iv) provided that Buyer had the option to further extend the
Outside Date by making the D&O Payment provided for therein.
WHEREAS,
the Parties are entering into this Third Amendment to set out their agreement
that in consideration for Buyer making the D&O Payment to Company no later
than the close of business on August 10, 2010, the Outside Date shall be
extended to October 31, 2010.
WHEREAS,
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Agreement, as amended.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereby agree as follows:
1. D&O
Payment. Buyer agrees to pay $150,000 to Company on or before
the close of business on August 10, 2010, which Company agrees will be promptly
applied to fund the Purchase of D&O Insurance for the GP for an additional
year. As further consideration for Buyer’s agreement to pay $150,000
to fund the Purchase of D&O Insurance, the Company shall deliver to Buyer
482,910 Common Units.
2. Sale of Newly Issued Common
Units. The Parties hereby modify and amend Section 1(a) of the
Agreement to read as follows:
Sale of Newly Issued Common
Units. Subject
to the terms and conditions of this Agreement, the parties agree that on the
Closing Date (i) the Company will issue and sell to Buyer 12,241,109 Newly
Issued Common Units which when added to the 482,910 Common Units issued to Buyer
in connection with the D&O Payment will represent not less than Eighty
Percent (80%) of the Fully Diluted Common Units of the Company and (ii) Buyer
will purchase such Newly Issued Common Units for the Common Unit Purchase Price
(as defined below).
3. Purchase Price. The
Parties hereby modify and amend existing Section 1(c) of the Agreement to read
as follows:
“Purchase
Price. The purchase price for the Newly Issued Common
Units shall be Three Million Eight Hundred Sixty Four Thousand Seven Hundred
Ninety One Dollars and No/100 ($3,864,791) (the “Common Unit
Purchase Price”). The Common Unit Purchase Price to be paid by Buyer to
the Company and any additional amounts contributed to the Company at Closing
shall be held and utilized by the Company, to the extent necessary, to satisfy
Buyer’s conditions to closing set out in Section 5(a)(ii) through (xii) hereof.
The purchase price for the GP Interests shall be One Hundred Forty Seven
Thousand Seven Hundred and Nine Dollars and No/100 ($147,709) (the “GP Interest
Purchase Price”) which such amount shall be contributed by Seller to the
GP and then by the GP to the Company simultaneously with the Closing (the Common
Unit Purchase Price and the GP Interest Purchase Price, collectively, the “Purchase
Price”)”
3. The
Closing. The Parties hereby modify and amend existing Section
8(a) of the Agreement to read as follows:
“The
Closing. The Closing shall take place at the earliest possible
date (the “Closing
Date”) under this Agreement, but in any event not later than October 31,
2010 (as the same may be extended, the “Outside
Date”) at the offices of counsel for Buyer, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇. The date on which the Closing actually occurs shall be the
Closing Date.”
4. Confirmation. The
Parties hereby ratify, confirm, and adopt the Agreement, as amended
hereby. Except as modified hereby, the Agreement shall remain in full
force and effect.
5. Headings. The
headings in this Third Amendment are for reference purposes only and shall not
in any way affect the meaning or interpretation of this Third
Amendment.
6. Counterparts. This
Third Amendment may be executed in any number of counterparts, each of which
when so executed, shall constitute an original copy hereof, but all of which
together shall be considered but one and the same document.
[Signatures on the
following page]
-2-
IN
WITNESS WHEREOF, the Parties hereto have executed and delivered this Third
Amendment as of the first date written above
| COMPANY: | ||
| Rio Vista Energy Partners, L.P. | ||
|
By:
|
Rio
Vista, GP LLC
|
|
|
its
General Partner
|
||
|
By:
|
||
|
▇▇▇
▇. ▇▇▇▇▇▇▇▇,
|
||
|
President
and Chief Executive Officer
|
||
| SELLER: | ||
| Penn Octane Corporation | ||
|
By:
|
|
|
| Name: |
▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
| Title: |
Acting
Chief Executive Officer and President
|
|
| BUYER: | ||
| Central Energy, LLC | ||
|
By:
|
||
| Name: |
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
|
| Title: |
Managing
Member
|
|
|
By:
|
||
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇▇
|
|
| Title: |
Managing
Member
|
|
-3-