Exhibit 10.8.5
HAZARDOUS MATERIALS INDEMNIFICATION AGREEMENT
This Hazardous Materials Guaranty and Indemnification Agreement
("Agreement") is given pursuant to the terms and conditions of the "Loan
Agreement" of even date by and between GTC XXXXX LABORATORIES, INC., a
Massachusetts corporation, having a place of business at 00 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, as "Borrower", and the EMERGING TECHNOLOGY
FUND of the GOVERNMENT LAND BANK, doing business as MASSDEVELOPMENT, a
Massachusetts body politic and corporate created by Chapter 212 of the Acts
of 1975, as amended, having offices at 00 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 as "Lender".
As used herein:
A. The term "Hazardous Materials" shall mean and include asbestos,
flammable materials, explosives, radioactive substances, polychlorinated
biphenyls, other carcinogens, oil and other petroleum products, pollutants or
contaminants that could be a detriment to the environment, and any other
hazardous or toxic materials, wastes and substances which are defined,
determined or identified as such in any past, present or future federal,
state or local laws, by-laws, rules, regulations, codes or ordinances or any
judicial or administrative interpretation thereof;
B. The term "Hazardous Materials Legal Requirements" shall mean all
past, present or future federal, state or local laws, by-laws, rules,
regulations, codes or ordinances or any judicial or administrative
interpretation thereof, including, without limitation, all orders, decrees,
judgments and rulings imposed through any public or private enforcement
proceedings, relating to Hazardous Materials or the existence, use,
discharge, release, containment, transportation or disposal thereof, or
otherwise regulating or providing for the protection of the environment
applicable to the Property and relating to Hazardous Materials or the
existence, use, discharge, release or disposal thereof;
C. The term "Property" shall mean and shall also include any other
tangible property in which the Lender now or hereafter receives a mortgage or
security interest in connection with the Borrower's present and future
obligations to the Lender (all such mortgages and security interests,
collectively, the "Mortgage");
D. The term "Indemnitors" shall mean the Borrower and Guarantor, if
any, and
E. The term "Indemnified Party" shall mean the Lender and all those
claiming by, through or under the Lender, including any subsequent holder of
the obligations evidenced by the Loan Agreement and any present or future
owner of a participation interest therein, and any subsequent owner or tenant
of all or any portion of the Property following the exercise by Lender of its
rights under the Loan Agreement, and any and all instruments and documents
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executed in connection therewith (together with the Loan Agreement, the "Loan
Documents") including, but not limited to, a foreclosure sale or deed in lieu
thereof.
F. The term "Hazardous Uses" shall mean any use of the Property by the
Borrower, a tenant of Borrower, or any other person or entity present at the
Property with Borrower's consent, which may be reasonably expected to involve
the storage, handling, treatment, processing or disposal of Hazardous
Materials on a regular basis (for example, pesticide or chemical
manufacturing or biological or chemical research), but not including any
occasional uses incident to the operation of business now conducted or
hereafter intended to be conducted on the Property (for example, the use of
office supplies or the use of oil for heating purposes).
G. The term "Hazardous Users" shall mean a tenant under a lease with
the Borrower or a permitted subtenant under a sublease consented to by the
Borrower, occupying all or any portion of the Property where:
(i) Such tenant or subtenant had a prior publicly available
regulatory record of repeated or serious material failures to
comply with orders for remedial action from governmental
agencies or entities, and the Borrower, or any other
Indemnitor, either had actual knowledge of such record at the
time Borrower entered into the lease with such tenant, or
consented to such sublease, or would have had such actual
knowledge but for the negligence of Borrower, or of any other
Indemnitor, in investigating such tenant or subtenant prior to
entering into such lease or consenting to such sublease; or
(ii) After obtaining knowledge of such a repeated or serious
violation Borrower, or any other Indemnitor, either failed to
properly make reasonable investigation and inquiry as to the
nature and extent of such violation or failed to use reasonable
efforts, based upon the state of the actual knowledge of
Borrower, or such other Indemnitor, following such reasonable
investigation and inquiry, to cause such tenant or subtenant to
curtail such violation within a reasonable period of time.
H. The term "Tenant Indemnities" shall mean any liability to a tenant
under a space lease of the Property for any matter related to Hazardous
Materials or violations of Hazardous Materials Legal Requirements where the
Borrower has given an indemnity therefor.
I. The term "Known Matters" shall mean those matters disclosed in that
certain Phase I Environmental Site Assessment performed by Gulf of Maine
Research Center, Inc. in its report dated September 26, 1996.
J. The term "Special Matters" shall mean Hazardous Uses, Hazardous
Users, Tenant Indemnities and Known Matters.
K. All other capitalized terms used in this Agreement which are not
otherwise specifically defined herein shall have the same meaning herein as
in the Loan Agreement.
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FOR VALUE RECEIVED, and to induce Lender to extend credit to Borrower as
provided for in the Loan Agreement and the other Loan Documents, the
Indemnitors hereby unconditionally agree as follows:
1. Compliance with Hazardous Materials Legal Requirements. Until such
time as all obligations of the Borrower to the Lender, now existing or
hereafter arising, under the Loan Agreement or otherwise (the "Obligations")
have been paid in full, the Indemnitors guaranty and agree that the Borrower,
or the other Indemnitors on behalf of the Borrower, shall comply with all
Hazardous Materials Legal Requirements applicable to the Property and that
the Borrower, or the other Indemnitors on behalf of the Borrower, shall take
all remedial action necessary to avoid any liability of the Borrower, the
Lender, or any subsequent owner of the Property, and to avoid the imposition
of, or to discharge, any liens on the Property, as a result of any failure to
comply with Hazardous Materials Legal Requirements with respect to the
Property.
2. Indemnification. At all times, both before and after the repayment
of the Obligations, the Indemnitors shall at their sole cost and expense
indemnify, exonerate, protect and save harmless each Indemnified Party
against and from any and all damages, losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, judgment, suits,
proceedings, costs, disbursements or expenses of any kind or nature
whatsoever, including, without limitation, attorneys' and experts' fees and
disbursements, which may at any time be imposed upon, incurred by or asserted
or awarded against Lender and arising from or out of:
A. Any Hazardous Materials on, in, under or affecting, all or any
portion of the Property or any area surrounding the same on the date hereof,
or which may hereafter affect all or any portion of the Property or any such
area surrounding the same, whenever discovered; provided, however, except as
to Special Matters (as to which there shall be no time limitation), the
Indemnitors shall have no liability hereunder with respect to Hazardous
Materials which first affect the property or any areas surrounding the same
after the discharge of the Mortgage or the foreclosure thereof, or the
acceptance of a deed in lieu of foreclosure;
B. The violation of any Hazardous Materials Legal Requirements by the
Borrower, or with respect to the Property, or any such violation by the
Borrower, affecting any area surrounding the same, existing on the date
hereof or which may so exist in the future, whenever discovered; provided,
however, except as to Special Matters (as to which no time limitation shall
apply), the Indemnitors shall have no liability hereunder with respect to the
violation of any Hazardous Materials Legal Requirements which first occur
after the discharge of the Mortgage or a foreclosure thereof or the
acceptance of a deed in lieu of foreclosure;
C. The existence of any Hazardous Materials on, in, under or affecting
all or any portion of the Property, or any areas surrounding the same, or the
violation of any Hazardous Materials Legal Requirements with respect to the
Property, or any areas surrounding the same, which arise out of Special
Matters, even though the specific matter(s) giving rise to liability or claim
of liability do(es) not occur until after the discharge of the Mortgage, or a
foreclosure thereof, or the acceptance of a deed in lieu of foreclosure;
D. The enforcement of this Agreement or the assertion by any Indemnitor
of any
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defense to the obligations of an Indemnitor hereunder, whether any of such
matters arise before or after foreclosure of the Mortgage or other taking of
title to or possession of all or any portion of the Property by the Lender,
and specifically including therein, without limitation, the following:
(i) costs of removal of any and all Hazardous Materials from all or
any portion of the Property or any areas surrounding the same;
(ii) additional costs required to take necessary precautions to
protect against the release of Hazardous Materials on, in,
under, or affecting, the Property or into the air, any body of
water or wetland, any other public domain, or any surrounding
areas;
(iii)costs incurred to avoid the imposition of, or to discharge, any
lien on the Property arising from any failure to comply with
Hazardous Materials Legal Requirements;
(iv) costs incurred to comply with all Hazardous Materials Legal
Requirements relating to the Property or the other collateral
held for the Obligations, including, without limitation, fines,
penalties or other charges imposed by any lawful authority; and
(v) costs and expenses incurred in ascertaining the existence or
extent of any asserted violation of any Hazardous Materials
Legal Requirements relating to the Property and any remedial
action taken on account thereof including, without limitation,
the costs, fees and expenses of engineers, geologists,
chemists, other scientists, attorneys, surveyors, and other
professionals, or testing and analyses performed in connection
therewith.
3. Right to Contest. The Borrower, or any other Indemnitor, may
contest in good faith any claim, demand, levy or assessment under any
Hazardous Materials Legal Requirements or any other claim with respect to
Hazardous Materials by any person or entity if:
A. the contest is based upon a material question of law or fact raised
by the Borrower or such other Indemnitor in good faith;
B. Borrower or such other Indemnitor properly commences and thereafter
diligently pursues the contest;
C. the contest will not materially impair the taking of any required
remedial action with respect to such claim, demand, levy or assessment; and
D. Borrower, or such other Indemnitor, demonstrates to Lender's
reasonable satisfaction that Borrower, or such other Indemnitor, has the
financial capability to undertake and pay for such contest and any remedial
action then or thereafter necessary.
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4. Waivers. The Indemnitors hereby waive and relinquish to the fullest
extent now or hereafter permitted by law:
A. all suretyship defenses and defenses in the nature thereof;
B. any right or claim of right to cause a marshaling of Borrower's
assets or of any security or to cause Lender to proceed against any of the
collateral for the Obligations before proceeding under this Agreement against
any Indemnitor or to require Lender to proceed against the Indemnitors in any
particular order;
C. all rights and remedies, including, but not limited to, any rights
of subrogation, contribution, reimbursement, exoneration or indemnification
pursuant to any express or implied agreement, or now or hereafter accorded by
applicable law to indemnitors, guarantors, sureties or accommodation parties;
D. notice of the acceptance hereof, presentment, demand for payment,
protest, notice of protest, or any and all notice of nonpayment,
nonperformance or nonobservance or other proof or notice of demand whereby to
charge the Indemnitors therefor; and
E. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR
THE LOAN AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A
JUDGE SITTING WITHOUT A JURY; and
F. the pleading of any Statute of Limitations as a defense to his or
their obligations hereunder.
5. Cumulative Rights. Lender's rights under this Agreement shall be in
addition to and not in limitation of all of the rights and remedies of Lender
under the other Loan Documents. All rights and remedies of the Lender shall
be cumulative and may be exercised in such manner and combination as Lender
may determine.
6. No Impairment. The liability of the Indemnitors hereunder shall in
no way be limited or impaired by, and each Indemnitor hereby assents to and
agrees to be bound by, any amendment or modification of the provisions of the
Loan Documents to or with Lender by Borrower or any Indemnitor or any person
who succeeds Borrower as owner of the Property. In addition, the liability
of the Indemnitors under this Agreement shall in no way be limited or
impaired by:
A. any extensions of time for performance required by any of the Loan
Documents;
B. any sale, assignment or foreclosure of the Loan Agreement, the
Mortgage or any other Loan Documents, or any sale, transfer or all or part of
the Property;
C. any exculpatory or nonrecourse or limited recourse provision in any
of the Loan Documents limiting Lender's recourse to the Property encumbered
by the Mortgage or to any
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other Property or limiting Lender's rights to a deficiency judgment against
Borrower or any other party;
D. the accuracy or inaccuracy of any of the representations or
warranties made by the Borrower or any guarantor under the Loan Documents or
otherwise;
E. the release of Borrower or any other person from performance or
observance of any of the agreements, covenants, terms or conditions contained
in any of the Loan Documents by operation of law, Lender's voluntary act or
otherwise;
F. the release or substitution in whole or part of any collateral or
security for the Obligations;
G. Lender's failure to record the Mortgage or file any UCC financing
statements (or Lender's improper recording or filing of any thereof) or to
otherwise perfect, protect, secure, or insure any security interest or lien
given as security for the Obligations;
H. the release of any one or more of the Indemnitors or any other party
now or hereafter liable upon or in respect to this Agreement or the
Obligations; or
I. the invalidity or unenforceability of all or any portions of any of
the Loan Documents as to the Borrower or to any other person or entity.
Any of the foregoing may be accomplished with or without notice to
Borrower or any Indemnitor or with or without consideration.
7. Delay Not Waiver. No delay on Lender's part in exercising any
right, power or privilege hereunder or under any of the Loan Documents shall
operate as a waiver of any such privilege, power or right. No waiver by
Lender in any instance shall constitute a waiver in any other instance.
8. Warranties and Representations. The Indemnitors warrant and
represent that:
A. This Agreement constitutes the legal valid and binding obligation of
the Indemnitors in accordance with the respective terms hereof;
B. That each Indemnitor (other than one who is a natural person) is a
duly organized validly existing entity in good standing under the laws of its
organization (and if not organized and existing under the laws of
Massachusetts, is duly qualified to transact business therein) and has all
requisite power and authority to conduct its business and to own its
properties as now conducted or owned;
C. The performance of the obligations evidenced hereby will not
constitute a violation of any law, order, regulation, contract or agreement
to which the Indemnitors or any of them is a party or by which any one or
more of them or their property is or may be bound;
D. There is no material litigation or administrative proceeding now
pending or
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threatened against the Indemnitors or any of them which if adversely decided
could materially impair the ability of any one or more of the Indemnitors to
pay or perform their respective obligations hereunder;
E. True and complete financial statements of the Indemnitors have been
delivered to the Lender and each fairly presents the respective financial
condition of the Indemnitor to which it relates as of the dates thereof and
no material and adverse change has occurred in the respective financial
condition of each Indemnitor since the date thereof;
F. The granting of the loan(s) evidenced by the Loan Agreement to the
Borrower will constitute a material economic benefit to each Indemnitor; and
G. Except for Known Matters, no Indemnitor has any knowledge or belief
of the existence of any Hazardous Materials affecting the Property or of any
violation or asserted violation of Hazardous Materials Legal Requirements
with respect to the Property.
9. Multiple Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original. Each of the
counterparts shall constitute but one in the same instrument and shall be
binding upon each of the parties individually as fully and completely as if
all had signed but one instrument so that the joint and several liability of
each of the Indemnitors hereunder shall be unaffected by the failure of any
of the undersigned to execute any or all of said counterparts.
10. Notices. Any notice or other communication in connection with this
Agreement shall be in writing, or in the form of a telegram, addressed as
provided on the first page or the signature page hereof and (i) sent by
telegram or deposited in the United States mail, postage prepaid, by
registered or certified mail, or (ii) delivered by any commercially
recognized courier or overnight delivery service, such as Federal Express.
Any such address may be changed to any other address within the United States
by written notice given in the aforesaid manner by the party desiring to
effect the change. Any notice given in the aforesaid manner shall be deemed
to have been duly sworn and received when so delivered or tendered for
delivery during usual business hours at the specified address.
11. No Oral Change. No provision of this Agreement may be changed,
waived, discharged, or terminated orally by telephone or by any other means
except by an instrument in writing signed by the party against whom
enforcement of the change, waiver or discharge or termination is sought.
12. Parties Bound; Benefit. This Agreement shall be binding upon the
Indemnitors and their respective successors, assigns, heirs and personal
representatives and shall be for the benefit of the Lender, and of any
subsequent holder of the Obligations and of any owner of a participation
interest therein. In the event the Obligations are sold or transferred, then
the liability of the Indemnitors to the Lender shall then be in favor of both
the Lender originally named herein and each subsequent holder of the
Obligations and any of interest therein.
13. Joint and Several. The obligations of each of the Indemnitors and
their respective successors, assigns, heirs and personal representatives
shall be joint and several.
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14. Partial Invalidity. Each of the provisions hereof shall be
enforceable against each Indemnitor to the fullest extent now or hereafter
permitted by law. The invalidity or unenforceability of any provision hereof
shall not limit the validity or enforceability of each other provision hereof.
15. Governing Law and Consent to Jurisdiction. This Agreement and the
rights and obligations of the parties hereunder shall in all respects be
governed by and construed and enforced in accordance with the Laws of the
Commonwealth of Massachusetts, without giving effect to Massachusetts
principles of conflicts of law, and insofar as Hazardous Materials Legal
Requirements are concerned, in accordance with applicable Federal Law and
Massachusetts law as well. Notwithstanding the foregoing, for the purpose of
defining Hazardous Materials and for the purpose of determining the nature
and extent of Hazardous Materials Legal Requirements, applicable federal law
shall govern and the internal laws of the Commonwealth of Massachusetts shall
have no effect. The parties further agree that Lender may enforce its rights
under this Agreement and the other Loan Documents including, but not limited
to, the rights to xxx any Indemnitor in accordance with applicable law. The
Indemnitors hereby irrevocably submit to the nonexclusive jurisdiction of any
Massachusetts State or any Federal Court sitting in Massachusetts over any
suit, action or proceeding arising out of or relating to this Agreement and
the Indemnitors hereby agree and consent that in addition to any methods of
service of process provided for under applicable law, all service of process
in any such suit, action or proceeding in any Massachusetts State or Federal
Court sitting in Massachusetts may be made by certified or registered mail,
return receipt requested, directed to the Indemnitors at the address
indicated in Section 9 above and service so made shall be completed five (5)
days after the same shall have been so mailed.
Witness the execution and delivery hereof as an instrument under seal as
of the 26th day of June, 1997.
GTC XXXXX LABORATORIES, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Vice President and Treasurer
Witness
/s/ Xxxxx X. Xxxx
-------------------------
Xxxxx X. Xxxx
191577-2
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