ENVIRONMENTAL INDEMNITY
ENVIRONMENTAL
INDEMNITY, is dated as of September 10, 2007 (this
“
Agreement ”),
by Pure Biofuels Del Peru S.A.C., a Peruvian corporation
(“
Pure Biofuels ”)
and Palma Industrial S.A.C., a Peruvian corporation (“
Palma ”
and, together with Pure Biofuels, collectively, the “
Indemnitors ”),
each having an office at Av. Canaval y Moreyra 380 of 402, San
Isidro, Lima, Peru, in favor of Plainfield Special Situations
Master Fund Limited, as Administrative Agent (together with any
successor administrative agent, the “
Administrative Agent ”),
having an office at 55 Railroad Avenue, Greenwich CT 06830, for the
benefit of the Creditors (as defined below).
RECITALS:
WHEREAS,
Pure Biofuels Corporation, the Indemnitors, the lenders from
time to time party thereto (the “
Lenders ”),
and the Administrative Agent, as Lead Arranger have entered into a
Loan Agreement, dated as of the date hereof (as amended, restated,
replaced, supplemented or otherwise modified from time to time, the
“
Loan Agreement ”),
providing for the making of Loans to Borrowers, all as contemplated
therein (the Lenders and the Administrative Agent, are herein
called the “
Creditors ”);
WHEREAS,
it is a condition precedent to the making of Loans under the
Loan Agreement that Indemnitors shall have executed and
delivered to the Administrative Agent this Agreement;
and
WHEREAS,
the forgoing recitals are intended to form an integral part of
this Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises, Ten
Dollars ($10.00) paid in hand, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Indemnitor agrees as follows:
1.
Definitions .
(a)
The
following terms shall have the meaning ascribed
thereto:
“
Administrative Agent ”
shall have the meaning provided in the first
paragraph.
“
Agreement ”
shall have the meaning provided in the first
paragraph.
“
Borrowers ”
shall have the meaning provided in the Recitals.
Page
2
“
Environmental Law ”
shall mean any federal, state or local statute, regulation or
ordinance or any judicial or administrative decree or decision,
whether now existing or hereinafter enacted, promulgated or issued,
with respect to the protection of human health from any
environmental hazards, or the environment, or any Hazardous
Materials, wetlands, landfills, open dumps, storage tanks,
underground storage tanks, solid waste, waste water, storm water
run-off, waste emissions or wells. Without limiting the generality
of the foregoing, the term shall encompass each of the following
statutes, and regulations promulgated thereunder, and amendments
and successors to such statutes, and regulations, as may be enacted
and promulgated from time to time: (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
(codified in scattered sections of 26 U.S.C.; 33 U.S.C.; 42 U.S.C.
and 42 U.S.C. §9601
et
seq .);
(ii) the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
§6901
et
seq .);
(iii) the Hazardous Materials Transportation Act (49 U.S.C.
§1801 et seq.); (iv) the Toxic Substances Control Act (15
U.S.C. §2061
et
seq .);
(v) the Clean Water Act (33 U.S.C. §1251
et
seq .);
(vi) the Clean Air Act (42 U.S.C. §7401
et
seq .);
(vii) the Safe Drinking Water Act (21 U.S.C. §349; 42 U.S.C.
§201 and §300f
et
seq .);
(viii) the National Environmental Policy Act of 1969 (42 U.S.C.
§4321); (ix) the Superfund Amendment and Reauthorization Act
of 1986 (codified in scattered sections of 10 U.S.C., 29 U.S.C. 33
U.S.C. and 42 U.S.C.); and (x) Title III of the Superfund Amendment
and Reauthorization Act (40 U.S.C. §1101
et
seq .).
“
Hazardous Materials ”
shall mean each and every element, compound, chemical mixture,
contaminant, pollutant, material, waste or other substance which is
defined, determined or identified as hazardous or toxic under any
Environmental Law. Without limiting the generality of the
foregoing, the term shall mean and include:
(i)
“
hazardous substances ”
as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Superfund Amendment and
Reauthorization Act of 1986, or Title III of the Superfund
Amendment and Reauthorization Act, each as amended, and regulations
promulgated thereunder;
(ii)
“
hazardous waste ”
and “regulated substances” as defined in the Resource
Conservation and Recovery Act of 1976, as amended, and regulations
promulgated thereunder;
(iii)
“
hazardous materials ”
as defined in the Hazardous Materials Transportation Act, as
amended, and regulations promulgated thereunder; and
(iv)
“
chemical substance or mixture ”
as defined in the Toxic Substances Control Act, as amended, and
regulations promulgated thereunder.
“
Indemnified Parties ”
shall mean each Creditor, and each of its parent, subsidiaries and
affiliates, each of their respective shareholders, directors,
officers, employees and agents, and the successors and assigns of
any of them; and “Indemnified Party” shall mean any one
of the Indemnified Parties.
“
Indemnitors ”
shall have the meaning provided in the first
paragraph.
“
Lender ”
shall mean the lenders from time to time party to the Loan
Agreement.
“
Loan Agreement ”
shall have the meaning provided in the Recitals.
“
Property ”
shall mean all real property owned or leased by any of the Credit
Parties.
Page 3
“
Release ”
shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, storing, escaping, leaching,
dumping, discarding, burying, abandoning, or disposing into the
environment.
“
Threat of Release ”
shall mean a substantial likelihood of a Release which requires
action to prevent or mitigate damage to the environment which may
result from such Release.
(b)
Capitalized
terms used but not otherwise defined herein shall have the
respective meanings given thereto in the Loan Agreement,
unless otherwise expressly provided herein. All references to
sections shall be deemed to be references to sections of this
Agreement, unless otherwise indicated.
Page 4
2.
Indemnity Agreement .
Each of the Indemnitors covenants and agrees, on a joint and
several basis and at its sole cost and expense, to indemnify,
defend (at trial and appellate levels and with attorneys,
consultants and experts selected by Indemnitor and reasonably
acceptable to Administrative Agent) and hold each Indemnified
Party harmless against and from any and all liens, damages,
losses, liabilities, obligations, settlement payments,
penalties, assessments, citations, directives, claims,
litigation, demands, defenses, judgments, suits, proceedings,
costs, disbursements or expenses of any kind or of any nature
whatsoever (including, without limitation, but subject to the
provisions hereof, reasonable attorneys’,
consultants’ and experts’ fees and disbursements
reasonably incurred in investigating, defending against,
settling or prosecuting any claim, litigation or proceeding)
which may at any time be imposed upon, incurred by or asserted
or awarded against such Indemnified Party (except, as to any
Indemnified Party, to the extent arising out of the gross
negligence or willful misconduct of any Indemnified Party) and
arising from or out of: (A) the Release or Threat of Release
of any Hazardous Materials on, in, under or affecting all or
any portion of any Property or any surrounding areas,
regardless of whether or not caused by or within the control
of any Credit Party or Indemnitor, first occurring prior to
Administrative Agent or its nominee acquiring title to such
Property by an enforcement action or otherwise; (B) the
Release or Threat of Release of Hazardous Materials at any
other location if the Hazardous Materials were generated,
treated, stored, transported or disposed of by or on behalf of
any Credit Party, (C) the material violation of any
Environmental Laws relating to or affecting any Property, any
Credit Party, whether or not caused by or within the control
of any Credit Party or Indemnitor first occurring prior to the
Administrative Agent or its nominee acquiring possession and
control over or title to such Property by any enforcement
action or otherwise; (D) the failure of Indemnitor to comply
fully with the terms and conditions of this Agreement; (E) the
violation of any Environmental Laws in connection with other
real property of any Credit Party or Indemnitor or any of
their respective Affiliates which gives or may give rise to
any rights whatsoever in any party with respect to any
Property by virtue of any Environmental Laws; or (F) the
enforcement of this Agreement, including, without limitation,
(i) the reasonable costs of assessment, containment and/or
removal of any and all Hazardous Materials from all or any
portion of any Property, any adjacent areas, (ii) the costs of
any actions taken in response to a Release or Threat of
Release of any Hazardous Materials first occurring prior to
Administrative Agent or its nominee acquiring title to the
affected Property by any enforcement action or otherwise on,
in, under or affecting all or any portion of any Property, any
adjacent areas, or any other areas to prevent or
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