Pure Earth, Inc. One Neshaminy Interplex, Suite 201 Trevose, PA 19053
EXHIBIT
4.1
Xxx
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
| August 18, 2009 |
VIA E-MAIL AND FEDERAL
EXPRESS
Fidus
Mezzanine Capital, L.P.
000 X.
XxXxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000
Attention:
Fidus Capital
Re: Series B
Preferred Stock of Pure Earth, Inc.
Ladies
and Gentlemen:
Reference
is made to that certain (i) Investment Agreement among Pure Earth, Inc. (the
“Company”) and
Fidus Mezzanine Capital, L.P. dated as of March 4, 2008 (the “Investment
Agreement”) and (ii) the Certificate of Incorporation of the Company, as
amended and restated to date (the “Certificate” and,
collectively, with the Investment Agreement, the “Investment
Documents”). Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Investment
Documents.
In
connection with the Sixth Amendment to that certain Credit and Security
Agreement dated as of October 24, 2006 by and among Xxxxx Fargo Bank, National
Association (“Xxxxx Fargo”), the Company and certain of its affiliates, we have
agreed that in lieu of making the Coupon payment to holders of Series B
Preferred Stock otherwise due on September 30, 2009 (the amount of such Coupon
payment, the “Coupon Amount”), the Company shall instead pay holders of Series B
Preferred Stock the Coupon Amount, plus interest thereon at the rate of fourteen
percent (14%) per annum, either:
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(a)
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in
one lump sum representing the full Coupon Amount plus accrued interest on
November 30, 2009; or
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(b)
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if
the Company either (i) refinances its outstanding obligations to Xxxxx
Fargo with an alternative lender, or (ii) renews such obligations for an
extended maturity date with Xxxxx Fargo, in each case prior to such dates
set forth in clause (a) above, then any unpaid portion of the Coupon
Amount plus accrued interest thereon shall be paid on the date such
refinancing or renewal is
consummated.
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Notwithstanding
the provisions of this letter, in the event that the full Coupon Amount plus
accrued interest is not paid as provided in the preceding paragraph, the Event
of Noncompliance with respect to the failure of the Company to pay
the Coupon Amount on September 30, 2009 shall be deemed to have occurred on
September 30, 2009 and not on the date that the Company fails to comply with the
preceding paragraph.
Please
indicate your agreement and acceptance of the terms hereof by returning a copy
of this letter to my attention via facsimile at (000) 000-0000 and the original
via overnight delivery service to my attention at Pure Earth, Inc., Xxx
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000.
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Very
truly yours,
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||
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By:
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/s/
Xxxxx Xxxxxxxxxx
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Xxxxx
Xxxxxxxxxx, Chairman of the Board
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||
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Chief
Financial
Officer
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Agreed
and Acknowledged:
FIDUS
MEZZANINE CAPITAL, L.P.
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By:
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/s/ Xxxxxx X.
Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Managing
Partner
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