ENVIRONMENTAL INDEMNITY
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 Xx. Xxxxxxx x Xxxxxxx 000 xx 000, Xxx Xxxxxx, Xxxx, Xxxx,
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 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx XX 00000, 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
xxxxx. 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 X.X.X. §0000 et seq.);
(iii)
the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.); (iv) the
Toxic Substances Control Act (15 X.X.X. §0000 et seq.);
(v)
the Clean Water Act (33 X.X.X. §0000 et seq.);
(vi)
the Clean Air Act (42 X.X.X. §0000 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 X.X.X. §0000 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 minimize such Release or Threat of Release so
that
it does not migrate or otherwise cause or threaten danger to present or future
public health, safety, welfare or the environment and (iii) costs incurred
to
comply with the Environmental Laws in connection with all or any portion of
any
Property, any adjacent areas, or any other areas for violations first occurring
prior to Administrative Agent or its nominee acquiring title to the affected
Property. Each of the Indemnitors’ obligations hereunder are separate and
distinct from its obligations under the other Loan Documents, and Administrative
Agent’s and the other Indemnified Parties’ rights under this Agreement shall be
in addition to all rights of Creditors under the other Loan Documents. Each
of
the Indemnitors shall be liable for any and all losses or damages incurred
by
any Indemnified Party relating to the presence, Release, or Threatened Release
of any Hazardous Materials on or about any Property as a result of the acts
or
negligent omissions of any Credit Party or Indemnitor, or any principal,
officer, member or partner of any Credit Party or Indemnitor from and after
the
date hereof. Each of the Indemnitors shall have no obligation to indemnify,
defend or hold harmless any Indemnified Party for Losses that result from such
Indemnified Party’s gross negligence or willful misconduct, but nothing in this
sentence shall affect such Indemnitor’s obligation to indemnify, defend or hold
harmless any other Indemnified Party. If any such action or other proceeding
shall be brought against any Indemnified Party, upon written notice from the
Indemnitors to such Indemnified Party and the Administrative Agent (given
reasonably promptly following any Indemnified Party’s notice to Indemnitor of
such action or proceeding), Indemnitor shall be entitled to assume the defense
thereof, at Indemnitor’s expense and with the prior written approval of the
Administrative Agent, with counsel reasonably acceptable to Administrative
Agent; provided,
however,
such
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense, but such participation shall not be deemed to
give
such Indemnified Party a right to control such defense, which right Indemnitor
expressly retains. Notwithstanding the foregoing, each Indemnified Party shall
have the right subject to the prior written approval of the Administrative
Agent
to employ separate counsel at Indemnitor’s expense if, in the reasonable opinion
of legal counsel, a conflict or potential conflict exists between the
Indemnified Party and Indemnitor that would make such separate representation
advisable.
Page
5
3.
Survival.
(a)
This Agreement and the indemnities provided herein shall survive the repayment
of the Obligations and, subject to the terms of such indemnity, shall survive
the exercise of any remedies under the Loan Documents, including without
limitation, any remedy in the nature of an enforcement action, and shall not
merge with any assignment or conveyance given by any Credit Party to any
Creditor in lieu of an enforcement action.
(b) It
is
agreed and intended by each of the Indemnitors and each Indemnified Party that
this Agreement and the indemnities provided herein may be assigned or otherwise
transferred by such Indemnified Party to its successors and assigns and to
any
subsequent purchaser of all or any portion of the Loans by, through or under
such Indemnified Party, without notice to either Indemnitor and without any
further consent of either Indemnitor. To the extent consent of any such
assignment or transfer is required by law, advance consent to any such
assignment or transfer is hereby given by the Indemnitors in order to maximize
the extent and effect of the indemnity given hereby.
(c) Notwithstanding
anything to the contrary contained in this Agreement, the Loan Agreement or
the
other Loan Documents, the obligations and liabilities of the lndemnitors
hereunder shall terminate, except to the extent of any claims for such indemnity
then pending five (5) years after the date on which the Loans are repaid in
full
and the satisfaction of all Obligations of the Credit Parties under the Loan
Documents.
Page
6
4.
Miscellaneous.
(a)
No
Waiver.
The
liabilities of Indemnitors under this Agreement shall in no way be limited
or
impaired by the Loan Documents. In addition, notwithstanding any terms of any
of
the Loan Documents to the contrary, the liability of the Indemnitors under
this
Agreement shall in no way be limited or impaired by: (i) any extensions of
time
for performance required by any of the Loan Documents; (ii) the accuracy or
inaccuracy of the representations and warranties made by any Credit Party under
any of the Loan Documents; (iii) the release of any Credit Party or any other
Person from performance or observance of any of the agreements, covenants,
terms
or conditions contained in the Loan Documents by operation of law, Creditor’s
voluntary act, or otherwise; (iv) the release or substitution, in whole or
in
part, of any security for the Obligations; or (v) any Creditor’s failure to
perfect, protect, secure or insure any security interest or lien given as
security for the Obligations; and, in any such case, whether with or without
notice to the Indemnitors and with or without consideration.
(b) MARSHALLING.
EACH OF
THE INDEMNITORS WAIVES ANY RIGHT OR CLAIM OF RIGHT TO CAUSE A MARSHALLING OF
ANY
CREDIT PARTY’S ASSETS OR TO CAUSE ANY CREDITOR TO PROCEED AGAINST ANY OF THE
SECURITY FOR THE LOANS BEFORE PROCEEDING UNDER THIS AGREEMENT AGAINST SUCH
INDEMNITOR, ANY CREDIT PARTY OR TO PROCEED AGAINST INDEMNITOR OR ANY CREDIT
PARTY IN ANY PARTICULAR ORDER. EACH OF THE INDEMNITORS AGREES THAT ANY PAYMENTS
REQUIRED TO BE MADE HEREUNDER SHALL BECOME DUE AND PAYABLE TEN (10) DAYS AFTER
DEMAND. INDEMNITOR EXPRESSLY WAIVES AND RELINQUISHES ALL RIGHTS AND REMEDIES
(INCLUDING ANY RIGHTS OF SUBROGATION) ACCORDED BY APPLICABLE LAW TO
INDEMNITOR.
(c) Joint
and Several Obligation.
Each of
the Indemnitors shall be jointly and severally liable to perform the obligations
of Indemnitor hereunder. Any one or more Credit Parties or one or more parties
constituting Indemnitor or any other Person liable upon or in respect of this
Agreement or the Obligations may be released without affecting the liability
of
any Person not so released.
(d) Further
Assurances.
The
Indemnitors shall execute and acknowledge (or cause to be executed and
acknowledged) and deliver to Administrative Agent all documents, and take all
actions, reasonably required by Administrative Agent from time to time to
confirm the rights created or now or hereafter intended to be created under
this
Agreement, to protect and further the validity and enforceability of this
Agreement or otherwise carry out the purposes of this Agreement.
(e) Notices.
Except
as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telex or telecopier)
and
mailed, telexed, telecopied or delivered: in the case of the Indemnitors, at
its
address set forth opposite its signature page below; if to any Lender, at its
address specified on Schedule
2
of the
Loan Agreement, and if to the Administrative Agent, at the Notice Office. All
such notices and communications shall, when mailed, telexed or telecopied,
or
sent by overnight courier, be effective (x) three (3) Business Days after
deposited in the mails, (y) one (1) Business Day after delivered to a recognized
overnight courier, as the case may be, or (z) when sent by telex or telecopier,
except that notices and communications to the Administrative Agent shall not
be
effective until received by the Administrative Agent.
Page
7
(f) Entire
Agreement.
This
Agreement constitutes the entire and final agreement between the Indemnitors
and
Indemnified Parties with respect to the subject matter hereof and may only
be
changed, amended, modified or waived by an instrument in writing signed by
Indemnitor and Administrative Agent.
(g) No
Waiver.
No
waiver of any term or condition of this Agreement, whether by delay, omission
or
otherwise, shall be effective unless in writing and signed by the party sought
to be charged, and then such waiver shall be effective only in the specific
instance and for the purpose for which given. No delay on the part of any
Indemnified Party in exercising any right, power or privilege under this
Agreement or any other Loan Document shall operate as a waiver of any privilege,
power or right hereunder.
(h) Successors
and Assigns.
This
Agreement shall be binding upon each of the Indemnitors and its successors
and
assigns and shall inure to the benefit of each Indemnified Party, and their
respective successors and permitted assigns. The Indemnitors, without the prior
written consent of Administrative Agent in each instance, may assign, transfer
or set over to another, in whole or in part, all or any part of its benefits,
rights, duties and obligations hereunder, including, but not limited to,
performance of and compliance with conditions hereof, provided that such
assignment shall not release Indemnitor of its obligations
hereunder.
(i) Headings
Descriptive.
The
headings of the several sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement.
(j) Counterparts.
This
Agreement 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. A set of counterparts executed by all the parties
hereto shall be lodged with Indemnitor and the Administrative
Agent.
(k) Severability.
The
provisions of this Agreement are severable, and if any one clause or provision
hereof shall be held invalid or unenforceable in whole or in part, then such
invalidity or unenforceability shall affect only such clause or provision,
or
part thereof, and not any other clause or provision of this
Agreement.
(l) Statute
of Limitations.
Indemnitor hereby waives the pleading of any statute of limitations as a defense
to the obligation hereunder.
Page
8
5.
Governing
Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.
(a) THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
CREDITORS AND THE UNDERSIGNED HEREUNDER 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). THE PARTIES ACKNOWLEDGE THAT NEW YORK HAS A SUBSTANTIAL
RELATIONSHIP TO THE UNDERLYING TRANSACTIONS RELATED TO THIS AGREEMENT AND TO
THE
PARTIES INVOLVED.
(b) ANY
LEGAL
ACTION OR PROCEEDING AGAINST EITHER INDEMNITOR, ANY LENDER OR THE ADMINISTRATIVE
AGENT WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY AT THE
ADMINISTRATIVE AGENT’S OPTION BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE
WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF
THIS AGREEMENT, EACH OF THE INDEMNITORS HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. EACH OF THE INDEMNITORS HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER IT, AND
AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED
COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER IT. EACH OF THE
INDEMNITORS FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH
INDEMNITOR AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE
TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. EACH OF THE INDEMNITORS
HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS
WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF
ANY CREDITOR OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
EACH OF THE INDEMNITOSR AND/OR ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
(c) EACH
OF
THE INDEMNITORS HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN
AN INCONVENIENT FORUM.
Page
9
(d) EACH
OF
THE CREDITORS AND INDEMNITORS TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
6.
Counterclaims
and other Actions.
Each of
the Indemnitors hereby expressly and unconditionally waives, in connection
with
any suit, action or proceeding brought by any Indemnified Party on this
Agreement, any and every right it may have to (i) interpose any counterclaim
therein (other than a counterclaim which can only be asserted in the suit,
action or proceeding and cannot be maintained in a separate action) and (ii)
have any such suit, action or proceeding consolidated with any other or separate
suit, action or proceeding.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
Page
10
IN
WITNESS WHEREOF, Indemnitor has executed and delivered this Agreement as of
the
day and year first written above.
PURE
BIOFUELS DEL PERU S.A.C.
By:
/s/
Xxxx Xxxxxxxx
Title:
Authorized Signatory
PALMA
INDUSTRIAL S.A.C.
By:
/s/
Xxxxxxx Xxxxxx
Title:
General Manager
