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Exhibit 99.3
ENVIRONMENTAL COMPLIANCE AND INDEMNITY AGREEMENT
This Environmental Compliance and Indemnity Agreement ("this
Agreement") is given pursuant to that certain letter agreement dated March 18,
1999, as amended by Loan Modification Agreement of even date herewith (as so
amended, the "Loan Agreement") originally made between ArQule, Inc., a Delaware
corporation ("Borrower") and the entity formerly known as "Fleet National Bank"
("Old FNB"), the present Fleet National Bank ("Bank") having succeeded by merger
to the rights and obligations of Old FNB thereunder.
As used herein:
A. The term "Environmental Legal Requirements" shall mean all
applicable federal, state and local laws, by-laws, rules, regulations, codes and
ordinances, or any judicial or administrative interpretations thereof, and the
requirements of any governmental agency or authority having or claiming
jurisdiction with respect thereto, applicable to the regulation or protection of
the environment, the health and safety of Persons and property and all other
environmental matters and shall include, but shall not be limited to, all
orders, decrees, judgments and rulings imposed through any public or private
enforcement proceedings relating to Hazardous Materials or to the existence,
use, discharge, release, containment, transportation, generation, storage,
management or disposal thereof, or otherwise regulating or providing for the
protection of the environment applicable to all or any portion of the Property
and relating to Hazardous Materials, or to the existence, use, discharge,
release or disposal thereof. Environmental Legal Requirements presently include,
but are not limited to, the following laws: the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C.ss.9601 ET SEQ.), the
Hazardous Materials Transportation Act (49 U.S.C.ss.1801 ET SEQ.), the Public
Health Service Act (42 U.S.C.ss.300(f) ET SEQ.), the Pollution Prevention Act
(42 U.S.C.ss.13101 ET SEQ.), the Federal Insecticide, Fungicide and Rodenticide
Act (7 U.S.C.ss.136 ET SEQ.), the Resource Conservation and Recovery Act (42
U.S.C.ss.6901 ET SEQ.), the Federal Clean Water Act (33 U.S.C.ss.1251 ET SEQ.),
the Federal Clean Air Act (42 U.S.C.ss.7401 ET SEQ.) and Mass. Gen. Laws, Ch.
21E.
B. The term "Hazardous Materials" shall mean and include asbestos,
flammable materials, explosives, radioactive or nuclear substances,
polychlorinated biphenyls, other carcinogens, oil and other petroleum products,
radon gas, urea formaldehyde, chemicals, gases, solvents, pollutants or
contaminants that could be a detriment or pose a danger to the environment or to
the health or safety of any Person, and any other hazardous or toxic materials,
wastes and substances which are defined, determined or identified as such in any
Environmental Legal Requirements.
C. The term "Property" shall include the land of Borrower at 00
Xxxxxxxxxxxx Xxx, Xxxxxx, XX and the improvements from time to time located on
any of such land, and shall also include any other tangible property in which
Bank now or hereafter receives a mortgage or a security interest in connection
with any of the Bank Documents.
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D. The term "Surrounding Property" shall mean any property located
within one-half mile of the perimeter of any portion of the Property.
E. The term "Indemnified Party" shall mean: (i) Bank; (ii) all those
claiming by, through or under Bank, including any participant and any subsequent
holder of any rights under the Loan Agreement and/or any of the Term Notes,
(iii) any subsequent owner of all or any portion of the Property following the
exercise by Bank of its rights under the Mortgage or any of the other Bank
Documents including, but not limited to, a foreclosure sale or acceptance of a
deed in lieu thereof; and (iv) as to each of the foregoing, their respective
affiliate, parent and subsidiary corporations, and, as applicable, the
respective officers, directors, stockholders, agents, employees, accountants and
attorneys of any one or more of them, and any Person, firm or entity which
controls, is controlled by or is under common control with, any one or more of
them.
F. The term "Environmental Enforcement Action" shall mean all actions,
orders, requirements or liens instituted, threatened, required, imposed or
placed by any government authority and all claims made or threatened by any
other Person against or with respect to all or any portion of the Property or
any Surrounding Property (but, as to Surrounding Property, only to the extent
that any Hazardous Materials on such Surrounding Property may have migrated to
the Property or constitute a threat of release at the Property), or any present
or past owner or occupant thereof, arising out of or in connection with any of
the Environmental Legal Requirements, any environmental condition, or the
assessment, monitoring, clean-up, containment, remediation or removal of, or
damages caused or alleged to be caused by, any Hazardous Materials (i) located
on or under all or any portion of the Property or any Surrounding Property (but,
as to Surrounding Property, only to the extent that any Hazardous Materials on
such Surrounding Property have migrated to any portion of the Property or
constitute a threat of release at any portion of the Property), (ii) emanating
from any portion of the Property or any Surrounding Property (but, as to
Surrounding Property, only to the extent that any Hazardous Materials on such
Surrounding Property may have migrated to any portion of the Property or
constitute a threat of release at the Property) or (iii) generated, stored,
transported, utilized, disposed, managed or released by Borrower on or from any
portion of the Property.
G. The terms "generated", "stored", "transported", "utilized",
"disposed", "managed", "released" and "threat of release", and all conjugates
thereof, shall have the meanings and definitions set forth in the Environmental
Legal Requirements.
H. The term "Environmental Reports" shall mean the reports identified
on Exhibit A hereto.
I. The term "Bank Documents" shall mean, collectively, this Agreement,
the Mortgage, the Loan Agreement, the Term Notes, the other Loan Documents and
any other document or instrument now existing or hereafter entered into
evidencing, securing, guaranteeing or relating to any obligation of Borrower to
Bank, arising out of or relating to (i) any Term Loan, (ii) any other extension
of credit now or hereafter made by Bank to or for the benefit of Borrower
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(whether or not relating to the Term Loans) and/or (iii) any interest rate
protection product now or hereafter provided by Bank for Borrower.
J. All capitalized terms used in this Agreement which are not otherwise
specifically defined herein shall have the respective meanings ascribed to such
terms in the Loan Agreement.
FOR VALUE RECEIVED, and in order to induce Bank to enter into the
aforesaid Modification Agreement and to extend credit to or for the benefit of
Borrower, Borrower hereby represents, warrants and unconditionally agrees as
follows:
1. WARRANTIES AND REPRESENTATIONS. Borrower represents and warrants to
Bank, the same to be true as of the date hereof and throughout the period that
any of the Bank Documents shall remain in force and effect, that except as
otherwise specifically disclosed in the Environmental Reports:
1.1. NO HAZARDOUS MATERIALS AT PROPERTY. No Hazardous
Materials have been or are currently generated or stored (other than
Hazardous Materials used in the ordinary course of Borrower's business
and generated or stored in compliance with all applicable Environmental
Legal Requirements), transported, utilized (except in compliance with
all applicable Environmental Legal Requirements), disposed of, released
or located (other than Hazardous Materials used in the ordinary course
of Borrower's business in compliance with all applicable Environmental
Legal Requirements), on, under or from any portion of the Property,
whether or not in reportable quantities, or in any manner introduced
onto any portion of the Property, including, without limitation, from
any portion septic, sewage or other waste disposal systems servicing
any portion of the Property;
1.2. NO VIOLATIONS CLAIMED RE PROPERTY OR BORROWER. Borrower
has not received any notice from the Massachusetts Department of
Environmental Protection, the United States Environmental Protection
Agency or any other governmental authority claiming (i) that any of the
Property or any use thereof violates any of the Environmental Legal
Requirements or (ii) that Borrower or any of Borrower's employees,
invitees, lessees, licensees or agents have violated any of the
Environmental Legal Requirements with respect to any of the Property or
any Surrounding Property;
1.3. NO LIABILITY TO GOVERNMENTAL AUTHORITIES. Borrower has
not incurred any liability to The Commonwealth of Massachusetts or the
United States of America or any other governmental authority under any
of the Environmental Legal Requirements;
1.4. NO LIEN ON PROPERTY. No lien against any of the Property
has arisen under or related to any of the Environmental Legal
Requirements;
1.5. NO ENFORCEMENT ACTIONS. There are no Environmental
Enforcement Actions pending with respect to any of the Property, or to
the best of Borrower's knowledge, threatened;
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1.6. NO KNOWLEDGE OF HAZARDOUS MATERIALS AT SURROUNDING
PROPERTY. Borrower has no knowledge (without independent inquiry) that
any Hazardous Materials have been or are currently generated, stored,
transported, utilized, disposed of, managed, released or located on,
under or from the Surrounding Property in violation of or allegedly in
violation of any of the Environmental Legal Requirements, except as
disclosed in the Environmental Reports;
1.7. NO KNOWLEDGE OF VIOLATIONS RE SURROUNDING PROPERTY.
Borrower has no knowledge (without independent inquiry) of any action
or order instituted or threatened by any Person or governmental
authority rising out of or in connection with the Environmental Legal
Requirements involving the assessment, monitoring, clean-up,
containment, remediation or removal of or damages caused or alleged to
be caused by any Hazardous Materials generated, stored, transported,
utilized, disposed of, managed, released or located on, under or from
any Surrounding Property, except as disclosed in the Environmental
Reports;
1.8. NO UNDERGROUND STORAGE TANKS. There are no underground
storage tanks on or under any of the Property; and
1.9. VALID AND BINDING. This Agreement constitutes the legal,
valid and binding obligation of Borrower, enforceable against Borrower
in accordance with its terms.
2. COMPLIANCE WITH ENVIRONMENTAL LEGAL REQUIREMENTS.
2.1. COMPLIANCE. As long as all or any portion of any Term
Loan remains outstanding or any amount or obligation is owed by
Borrower to Bank pursuant to any of the Bank Documents, Borrower will
comply in all material respects with all Environmental Legal
Requirements, including, but not limited to, Environmental Legal
Requirements applicable to any of the Property, and Borrower will take
all remedial action necessary to avoid any liability of Borrower, Bank
or any subsequent owner of all or any portion of the Property and to
avoid the imposition of, or to discharge, any liens on all or any
portion of the Property, as a result of any failure to comply with any
Environmental Legal Requirements applicable to all or any portion of
the Property.
2.2. PROHIBITIONS. Without limitation of the generality of the
foregoing, Borrower agrees that it shall not:
(a) release or permit any release or threat of release of
any Hazardous Materials in any reportable quantity on
any portion of the Property;
(b) except in strict compliance with all applicable
Environmental Legal Requirements, generate or permit
any Hazardous Materials to be generated on any
portion of the Property;
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(c) except in strict compliance with all Environmental
Legal Requirements, store or utilize or permit any
Hazardous Materials to be stored or utilized on any
portion of the Property;
(d) except in strict compliance with all applicable
Environmental Legal Requirements, dispose of or
permit any Hazardous Materials to be disposed of on
any portion of the Property;
(e) fail to operate, maintain, repair or use all or any
portion of the Property in accordance with
Environmental Legal Requirements; or
(f) allow, permit or suffer any other Person to operate,
maintain, repair or use all or any portion of the
Property except in accordance with all applicable
Environmental Legal Requirements.
3. NOTICE OF CONDITIONS. As promptly as reasonably possible, but in no
event later than ten (10) Business Days after Borrower obtains knowledge or
notice thereof, Borrower will provide to the Bank written notice of any of the
following conditions: (i) the presence, release or threat of release of any
Hazardous Materials in any reportable quantity on, under or from any portion of
the Property or any Surrounding Property (but, as to Surrounding Property, only
to the extent that any such Hazardous Materials are reasonably likely to migrate
to any portion of the Property or to constitute a threat of release at any
portion of the Property), whether or not caused by Borrower; (ii) any
Environmental Enforcement Action instituted or threatened; or (iii) any
condition or occurrence on all or any portion of the Property or any Surrounding
Property that may constitute a violation of any of the Environmental Legal
Requirements with respect to all or any portion of the Property.
4. BORROWER'S AGREEMENT TO TAKE REMEDIAL ACTIONS.
4.1. REMEDIAL ACTIONS. Upon Borrower becoming aware of the
violation of any Environmental Legal Requirement related to all or any
portion of the Property or the presence or any release or any threat of
release of any Hazardous Materials on, under or from all or any portion
of the Property or any Surrounding Property (but, as to Surrounding
Property, only to the extent that any Hazardous Materials on such
Surrounding Property may have migrated to any of the Property or
constitute a threat of release at any of the Property), whether or not
caused by Borrower, Borrower shall, subject to the rights to contest
set forth in Section 7 below, immediately take all actions necessary to
cure or eliminate any such violation of any such Environmental Legal
Requirement and, where applicable, to arrange for such assessment,
monitoring, clean-up, containment, removal, remediation or restoration
of each portion of the Property and (if applicable and only to the
extent that Borrower has the legal right to do so) the Surrounding
Property as are required pursuant to any Environmental Legal
Requirements.
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4.2. SECURITY FOR COSTS. If the potential costs associated
with the actions required in Section 4.1, the release of any lien
against all or any portion of the Property and/or the release or other
satisfaction of the liability, if any, of Borrower with respect to all
or any portion of the Property arising under or related to any of the
Environmental Legal Requirements or any Environmental Enforcement
Action are determined by Bank, in good faith, to exceed $50,000, Bank
shall have the right (in addition to any other right or remedy) to
require Borrower to provide, and Borrower shall provide within thirty
(30) days after written request therefor, a bond, letter of credit or
other similar financial assurance, in form, amount and substance
reasonably satisfactory to Bank, in its good faith judgment based on
the reasonably estimated costs for such matter, evidencing to Bank's
reasonable satisfaction that the necessary financial resources will be
unconditionally available to pay for all of the foregoing.
4.3. ENVIRONMENTAL ASSESSMENTS. Without limitation of the
provisions of Section 5 below, Bank shall have the right to require
Borrower, at Borrower's own cost and expense, to obtain a professional
environmental assessment of the Property in accordance with Bank's then
standard environmental assessment requirements and sufficient in scope
to comply with the requirements of Section 5.1 upon the occurrence of
any one or more of the following events: (i) an Event of Default; or
(ii) receipt of any notice of any of the conditions specified in
Section 3 of this Agreement.
5. BANK'S RIGHTS TO INSPECT THE PROPERTY AND TAKE REMEDIAL ACTIONS.
5.1. ASSESSMENTS. In addition to, and not in limitation of any
of its other rights and remedies under this Agreement or any of the
other Bank Documents, as long as any Term Loan or any other credit
facility or other facility provided by Bank for Borrower remains
outstanding or any other amount or obligation is owed by Borrower to
Bank which is secured by any of the Property, Bank shall have the
right, but not the obligation, through such representatives or
independent contractors as it may designate, to enter upon the Property
or any of same and to expend funds to cause one or more environmental
assessments of all or any portion of the Property to be undertaken, if
Bank in its sole discretion determines that such assessment is
appropriate, which determination may be based on regulatory
requirements and/or internal guidelines now or hereafter affecting
Bank, all whether or not Bank knows of or has reason to suspect any
violation of Environmental Legal Requirements with respect to any of
the Property. Such environmental assessments may include, without
limitation, (i) detailed visual inspections of any or all of the
Property, including, without limitation, all storage areas, storage
tanks, drains, drywells and leaching areas; (ii) the taking of soil
samples and surface and sub-surface water samples; (iii) the
performance of soils and ground water analyses; and (iv) the
performance of such other investigations or analyses as are necessary
or appropriate and consistent with sound professional environmental
engineering practice in order for Bank to obtain a complete assessment
of the compliance of any or all of the Property and the use thereof
with all Environmental Legal Requirements and to make a determination
as to whether or not there is any risk of contamination (x) to any of
the Property resulting from Hazardous Materials originating on, under
or from any
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Surrounding Property or (y) to any Surrounding Property resulting from
Hazardous Materials originating on, under or from any of the Property.
5.2. OTHER RIGHTS OF BANK. In addition to, and not in
limitation of any of its other rights and remedies under this Agreement
or any of the other Bank Documents, as long as any Term Loan or any
other credit facility or other facility provided by Bank for Borrower
remains outstanding or any other amount or obligation is owed by
Borrower to Bank, upon the occurrence of (i) an Event of Default or
(ii) receipt of any notice of any of the conditions specified in
Section 3 of this Agreement with respect to any of the Property, Bank
shall have the right (exercisable upon prior written notice to
Borrower), but not the obligation, through such representatives or
independent contractors as it may designate, to enter upon any or all
of the Property and to expend funds to:
5.2.1. CURE. Cure any breach of the representations,
warranties, covenants and conditions made by or imposed upon
Borrower under this Agreement, including, without limitation,
any violation by Borrower or by any of the Property of any of
the Environmental Legal Requirements applicable to any of the
Property;
5.2.2. PREVENTION AND PRECAUTION. Take all actions as
are necessary to (i) prevent the migration of Hazardous
Materials on, under or from any of the Property to any other
property; (ii) clean up, contain, remediate or remove, to the
standard required for the occupant's use, any Hazardous
Materials on, under or from any other property, which
Hazardous Materials originated on, under or from any of the
Property; or (iii) (to the extent there is a legal right so to
do) prevent the migration of any Hazardous Materials on, under
or from any other property to any of the Property;
5.2.3. ENVIRONMENTAL ENFORCEMENT ACTIONS. Comply
with, settle or otherwise satisfy any Environmental
Enforcement Action, including, but not limited to, the payment
of any fines or penalties imposed by any governmental
authority and the payment of all amounts required to remove
any lien or threat of lien on or affecting any of the
Property; and
5.2.4. GENERAL. Comply with, settle or otherwise
satisfy any Environmental Legal Requirement and correct or
xxxxx, to the standard required for Borrower's use, any
environmental condition on, or which threatens, any of the
Property and which could cause damage or injury to any of the
Property or to the Surrounding Property or to any Person.
5.3. RECOVERY OF COSTS. Any amounts paid or advanced by Bank
and all costs and expenditures incurred in connection with any action
taken pursuant to the terms of this Agreement, including but not
limited to environmental consultants, and experts' fees and expenses,
reasonable attorneys' fees and expenses, court costs and all costs of
assessment, monitoring, clean-up, containment, remediation, removal and
restoration,
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with interest thereon at the rate provided for in Section 4 of the
Mortgage, shall be a demand obligation of Borrower to Bank, shall be
added to the obligations secured by the Mortgage and shall be secured
by the lien of the Mortgage as fully and as effectively and with the
same priority as every other obligation secured thereby.
5.4. BANK NOT RESPONSIBLE. The exercise by Bank of any one or
more of the rights and remedies set forth in this Section 5 shall not
operate or be deemed (a) to place upon Bank any responsibility for the
operation, control, care, service, management, maintenance or repair of
any of the Property or (b) to make Bank the "owner" or "operator" of
any of the Property or a "responsible party" within the meaning of any
of the Environmental Legal Requirements.
5.5. BANK'S SUBROGATION. Furthermore, Bank by making any such
payment or incurring any such costs shall be subrogated to all rights
of Borrower or any other occupant of any of the Property to seek
reimbursement from any other Person including, without limitation, any
predecessor owner or occupant of any of the Property who may be a
"responsible party" under any of the Environmental Legal Requirements
in connection with the presence of Hazardous Materials on or under or
which emanated from any of the Property.
5.6. BANK MAY STOP. Without limiting the generality of the
other provisions of this Agreement, any partial exercise by Bank of any
one or more of the rights and remedies set forth in this Section 5
including, without limitation, any partial undertaking on the part of
Bank to cure any failure of Borrower or of any of the Property, or of
any other occupant, prior occupant or prior owner thereof, to comply
with any of the Environmental Legal Requirements shall not obligate
Bank to complete such actions taken or require Bank to expend further
sums to cure such non-compliance.
6. INDEMNIFICATION. Borrower hereby agrees that at all times, both
before and after the repayment and discharge of the obligations secured by the
Mortgage, Borrower shall at its sole cost and expense indemnify, defend,
exonerate, protect and save harmless each Indemnified Party against and from any
and all damages (including, without limitation, diminution in value of any
collateral), losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, proceedings, costs, disbursements and
expenses of any kind or nature whatsoever, including, without limitation,
reasonable fees and disbursements of experts and attorneys (whether in-house or
outside counsel), which may at any time be imposed upon, incurred by or asserted
or awarded against any Indemnified Party arising from or out of:
6.1. HAZARDOUS MATERIALS. Any Hazardous Materials on, in,
under or affecting all or any portion of the Property or any
Surrounding Property (but, as to Surrounding Property, only to the
extent that any Hazardous Materials on such Surrounding Property have
migrated to any of the Property or constitute a threat of release at
any of the Property) on or before the date hereof, or which may
hereafter affect all or any portion of the Property or any Surrounding
Property, whenever discovered and whether or not disclosed in the
Environmental Reports, whether or not now known to Borrower and/or
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Bank and whether or not any relevant release or threat of release was
caused by Borrower, any tenant, subtenant, prior owner, prior tenant or
any other Person and whether or not the alleged liability is
attributable to the handling, storage, generation, transportation or
disposal of Hazardous Materials or the mere presence of such Hazardous
Materials;
6.2. ENVIRONMENTAL LEGAL REQUIREMENTS. The alleged or actual
violation of any Environmental Legal Requirement by Borrower or with
respect to any of the Property or any Surrounding Property (but, as to
Surrounding Property, only to the extent that any Hazardous Materials
on such Surrounding Property have migrated to any of the Property or
constitute a threat of release at any of the Property) existing on or
before the date hereof or which may so exist in the future, whenever
discovered and whether or not disclosed in the Environmental Reports;
6.3. BREACH OF WARRANTY, REPRESENTATION OR COVENANT. Any
breach of warranty or representation or covenant made by Borrower under
or pursuant to this Agreement; and/or
6.4. GENERAL. The enforcement of this Agreement, 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 Bank or by any other Indemnified Party, and specifically
including therein, without limitation, the following: (i) reasonable
costs incurred for any of the matters set forth in Section 5 of this
Agreement; and (ii) reasonable costs and expenses incurred in
ascertaining the existence or extent of any asserted violation of any
Environmental Legal Requirements relating to any of 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.
Notwithstanding the foregoing, the indemnity contained in this Section 6
expressly excludes any loss, liability, damage or expense resulting from a
release of Hazardous Materials if BOTH of the following criteria are met: (i)
the circumstances giving rise to such loss, liability, damage or expense occur
only after foreclosure of the Mortgage or acceptance by Bank of a deed in lieu
of foreclosure of the Mortgage or following and during the continuance of entry
by Bank as a mortgagee-in-possession with respect to the Property and (ii) the
circumstances giving rise to such loss, liability damage or expense do not
result in any manner from actions taken or circumstances existing on any of the
Property prior to such foreclosure, acceptance of a deed in lieu or entry, other
than any such action taken by Bank, its agents or employees which constitutes
negligence or willful misconduct.
7. RIGHT TO CONTEST. Borrower may contest in good faith any claim,
demand, levy or assessment under any Environmental Legal Requirements,
including, but not limited to, any claim with respect to Hazardous Materials, by
any Person, but only if and for so long as:
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7.1. MATERIAL QUESTION IN GOOD FAITH. The contest is based
upon a material question of law or fact raised by Borrower in good
faith; and
7.2. DILIGENT PURSUIT. Borrower properly commences and
thereafter diligently pursues the contest to completion; and
7.3. NO IMPAIRMENT. The contest will not materially impair the
taking of any remedial action with respect to such claim, demand, levy
or assessment required to protect against further damage to any of the
Property or the Surrounding Property; and
7.4. ADEQUATE RESOURCES. Borrower demonstrates to Bank's
reasonable satisfaction that Borrower has the financial capability to
undertake and pay for such contest and any remedial action then or
thereafter necessary; and
7.5. RESOLVE IN A TIMELY MANNER. There is no reason to believe
that the contest will not be resolved prior to the earlier of (i) the
final maturity date of the Term Loans or (ii) the second anniversary of
the commencement of such contest; and
7.6. NO EOD. No Event of Default exists under the Loan
Agreement or any of the other Bank Documents.
8. WAIVERS. Borrower hereby waives and relinquishes to the fullest
extent now or hereafter not prohibited by applicable law:
8.1. MARSHALLING. Any right or claim of right to cause a
marshalling of Borrower's assets or of any security or to cause Bank to
proceed against any of the collateral for the obligations secured by
the Mortgage before proceeding under this Agreement against Borrower;
and
8.2. NOTICE. Notice of the acceptance hereof, presentment,
demand for payment, protest, notice of protest, and any and all notices
of nonpayment, nonperformance, nonobservance or default.
BORROWER AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTIES, THIS WAIVER BEING A MATERIAL INDUCEMENT FOR BANK TO ACCEPT THIS
AGREEMENT AND TO MAKE THE FACILITY TWO TERM LOAN AND/OR MAKE OTHER EXTENSIONS OF
CREDIT.
9. CUMULATIVE RIGHTS. Bank's rights under this Agreement shall be in
addition to and not in limitation of all of the rights and remedies of Bank
under the Loan Agreement and the
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other Bank Documents. All rights and remedies of Bank shall be cumulative and
may be exercised in such manner and combination as Bank may determine.
10. NO IMPAIRMENT. The liability of Borrower hereunder shall in no way
be limited or impaired by:
10.1. EXTENSIONS. Any extension of time for performance
required by any of the Bank Documents;
10.2. AMENDMENTS. Any amendment to or modification of any of
the Bank Documents;
10.3. TRANSFER. Any sale or assignment of any of the Bank
Documents or any interest therein or any sale or transfer of all or any
part of the Property or any interest therein;
10.4. EXCULPATORY LANGUAGE. Any exculpatory or nonrecourse or
limited recourse provision in any of the Bank Documents limiting Bank's
recourse to any property or limiting Bank's rights to a deficiency
judgment against Borrower or any other party;
10.5. INACCURACIES. The accuracy or inaccuracy of any of the
representations or warranties made by or on behalf of Borrower under
the Bank Documents or otherwise;
10.6. RELEASE. The release of Borrower or of any other Person
from performance or observance of any of the agreements, covenants,
terms of conditions contained in any of the Bank Documents (other than
this Agreement), by operation of law, Bank's voluntary act, or
otherwise;
10.7. BANKRUPTCY OR REORGANIZATION. The filing of any
bankruptcy or reorganization proceeding by or against Borrower or any
subsequent owner or tenant of any of the Property;
10.8. SUBSTITUTION. The release or substitution in whole or in
part of any collateral or security for any obligations described in any
of the Bank Documents;
10.9. FAILURE TO PERFECT. Bank's failure to record the
Mortgage or to file any UCC financing statements (or Bank's improper
recording or filing of any thereof or failure to continue same) or to
otherwise perfect, protect, secure or insure any security interest or
lien given as security for any of the obligations described in any of
the Bank Documents;
10.10. INVALIDITY. The invalidity or unenforceability of all
or any portion of any of the Bank Documents (other than this Agreement)
as to Borrower or as to any other Person.
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11. DELAY NOT WAIVER. No delay on Bank's part in exercising any right,
power or privilege hereunder or under any of the Bank Documents shall operate as
a waiver of any such privilege, power or right. No waiver by Bank in any
instance shall constitute a waiver in any other instance.
12. 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.
13. NOTICES. Any notice or other communication in connection with this
Agreement shall be in writing and shall be given in the manner and to the
respective addresses provided for in the Loan Agreement.
14. 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.
15. PARTIES BOUND; BENEFIT. This Agreement shall be binding upon
Borrower, its successors and assigns and shall be for the benefit of Bank, and
of any subsequent holder of any of the Bank Documents and of any owner of a
participation interest therein. In the event the Bank's interest in any
obligation now or hereafter existing under the Bank Documents is sold or
transferred, then the liability of Borrower to Bank shall then be in favor of
both that Bank which is originally named herein and each subsequent holder of
any such obligation or any of interest therein.
16. PARTIAL INVALIDITY. Each of the provisions hereof shall be
enforceable against Borrower 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, nor shall any
invalidity or unenforceability as against any one Person limit validity or
enforceability as against any other Person.
17. 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 conflicts
of law principles, and insofar as federal Environmental Legal Requirements are
concerned, in accordance with applicable federal law as well. Borrower hereby
irrevocably submits to the nonexclusive jurisdiction of any Massachusetts state
court or any federal court sitting in Massachusetts over any suit, action or
proceeding arising out of or relating to this Agreement and Borrower hereby
agrees and consents 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 court or federal court sitting
in Massachusetts may be made by certified or registered mail, return receipt
requested, directed to
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Borrower at the address set forth in the Loan Agreement and service so made
shall be deemed completed five (5) days after the same shall have been so
mailed.
18. SURVIVAL. The provisions of this Agreement shall continue in effect
and shall survive (among other events) any payment and satisfaction of the
obligations now or hereafter existing under the Bank Documents, any termination
or discharge of the Mortgage, foreclosure, a deed-in-lieu transaction, or
release of any collateral. However, Bank acknowledges that Borrower is not
liable for any loss, liability, damage or expense resulting from a release of
Hazardous Materials if BOTH of the following criteria are met: (i) such release
occurs after foreclosure of the Mortgage or acceptance by Bank of a deed in lieu
of foreclosure of the Mortgage or following and during the continuance of entry
by Bank as a mortgagee-in-possession with respect to the Property and (ii) such
release does not result in any manner from actions taken or circumstances
existing prior to such foreclosure, acceptance of a deed in lieu or entry other
than any such action taken by Bank, its agents or employees which constitutes
negligence or willful misconduct.
19. POST-CLOSING ITEM. Without limitation of its other covenants and
agreements made herein, Borrower agrees that, within 30 days after the date
hereof, Borrower will register with the Woburn Fire Department the 1,800-gallon
aboveground storage tank at the Property, obtain all permits required for such
tank by the applicable Woburn ordinances and furnish to Bank written evidence of
compliance with this Section.
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Witness the execution and delivery hereof, as an instrument under seal,
dated as of March 2, 2001.
ARQULE, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name:
Title:
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EXHIBIT A
ENVIRONMENTAL REPORTS
1. Report on ASTM Phase I Environmental Site Assessment, 00 Xxxxxxxxxxxx Xxx
(XxXxxx), Xxxxxx, Xxxxxxxxxxxxx, dated November 22, 2000, prepared by Xxxxx
& Xxxxxxx, Inc.
2. Letter from Xxxxx & Xxxxxxx, Inc. to ArQule, Inc. dated February 26, 2001.
