Exhibit 10.28
Loan No. 000-0000-000
CERTIFICATE AND INDEMNITY AGREEMENT
REGARDING HAZARDOUS SUBSTANCES
In connection with and as partial consideration for the making of a
loan in the amount of FORTY-FIVE MILLION AND NO/100 DOLLARS ($45,000,000.00)
(the "Loan"), by GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION, a
Delaware corporation ("GE CAPITAL"), to TERADYNE INC. ("Borrower"), Borrower
certifies, represents, warrants, covenants and agrees to and with GE CAPITAL as
follows as of December 19, 2001:
X. Xxxxxxxx has furnished to GE CAPITAL a Phase I
Environmental Site Assessment dated November, 2001, prepared by CDM Dresser &
XxXxx and an Environmental Questionnaire executed by Xxxxxxxx and dated November
29, 2001 (collectively, the "Report"). Except as disclosed to GE CAPITAL in the
Report, Borrower has no knowledge of (a) the presence of any Hazardous
Substances (as defined below) on that certain real property and improvements
thereon situated in Los Angeles County, California, which real property is more
particularly described in Exhibit A attached hereto (including the improvements
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thereon, the "Property"), or (b) any spills, releases, discharges or disposal of
Hazardous Substances that have occurred or are presently occurring on or onto
the Property or any Other Property (as defined below).
X. Xxxxxxxx represents that, as of the date of this
Agreement, Borrower has no knowledge of any failure to comply with all
applicable local, state and federal environmental laws, regulations, ordinances
and administrative and judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport, disposal, discharge, release or
presence of any Hazardous Substances on or with respect to the Property,
including, without limitation, the Applicable Laws (as defined below).
X. Xxxxxxxx has duly investigated the present and past
uses of the Property and has made due inquiry of the appropriate governmental
agencies and offices having jurisdiction over the Property and has examined, or
been advised of the Applicable Laws, to determine whether the Property is or has
been the site of storage of or contamination by any Hazardous Substances.
Borrower has provided GE CAPITAL with a written summary of its investigations.
X. Xxxxxxxx has not released and will not release or
waive the liability of any previous owner, lessee, or operator of the Property
or any party who may be potentially responsible for the presence, release,
discharge, disposal or removal of Hazardous Substances on or from the Property.
Xxxxxxxx has made no promises of indemnification regarding Hazardous Substances
with respect to the Property to any person or entity other than GE CAPITAL.
X. Xxxxxxxx agrees to notify GE CAPITAL immediately if
Xxxxxxxx becomes aware of (a) any Hazardous Substances or other environmental
problem or liability with respect to the Property or any Other Property, or (b)
any lien, action or notice resulting from violation of any of the Applicable
Laws. If GE CAPITAL reasonably determines that a release
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of Hazardous Substances has occurred on the Property or that a violation of the
Applicable Laws has occurred, Borrower shall, at Borrower's sole cost and
expense, (i) obtain and furnish to GE CAPITAL an environmental audit or survey
from an expert satisfactory to GE CAPITAL with respect to the Property and (ii)
proceed in a timely manner, and in accordance with all Applicable Laws to take
all actions which are necessary to clean up any Hazardous Substances affecting
the Property and to comply with the Applicable Laws. Following the completion of
any such actions, Borrower shall proceed in a timely manner to restore the
Property to its former state of productive use.
F. Borrower shall indemnify and hold GE CAPITAL harmless
from and against any and all claims, demands, damages, losses, liens,
liabilities, penalties, fines, lawsuits and other proceedings and costs and
expenses (including attorneys' fees and disbursements), which accrue to or are
made against or are incurred by GE CAPITAL at any time (whether prior to or on
or after transfer of the Property pursuant to foreclosure or by deed in lieu
thereof), and which arise directly or indirectly from or out of, or are in any
way connected with (a) the inaccuracy of the certifications, representations or
warranties contained herein, (b) any activities on the Property during
Borrower's ownership, possession or control of the Property which directly or
indirectly result in the Property or any Other Property becoming contaminated
with Hazardous Substances, (c) any clean up or removal of Hazardous Substances
from the Property or any Other Property, or (d) any violation of any of the
Applicable Laws with respect to the Property. Borrower acknowledges that except
as provided in the following sentence, Xxxxxxxx will be solely responsible for
all costs and expenses relating to the clean up of Hazardous Substances from the
Property or from any Other Property as between Borrower and GE CAPITAL, and that
the indemnity in this Paragraph 6 shall cover all such costs and expenses.
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Notwithstanding the foregoing, Borrower shall not be responsible for costs or
expenses relating to the clean up of Hazardous Substances from the Property or
from any Other Property to the extent such Hazardous Substances are first placed
on the Property after GE CAPITAL acquires title to the Property pursuant to a
foreclosure of the Deed of Trust (as such term is defined below) or pursuant to
a deed given by Xxxxxxxx (and accepted by GE CAPITAL) in lieu of foreclosure.
X. Xxxxxxxx's obligations under this Agreement are
unconditional and irrevocable and shall not be limited by any nonrecourse or
other limitations of liability provided for in any other document relating to
the Loan ("Loan Documents"). The representations, warranties and covenants of
Borrower set forth in this Agreement (including without limitation the indemnity
provided for in Paragraph 6 above) (a) are separate and distinct obligations
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from and in addition to Borrower's obligations under the Loan Documents, (b) are
not secured by the Deed of Trust (the "Deed of Trust") or other security
documents securing the Loan and shall not be discharged or satisfied by
foreclosure of the liens created by the Deed of Trust or other security
documents and (c) shall continue in effect after any transfer of the Property,
including without limitation transfers pursuant to foreclosure proceedings
(whether judicial or nonjudicial), or by deed in lieu of foreclosure.
H. As used in this Agreement, "Hazardous Substances"
shall mean the following: asbestos, polychlorinated biphenyls and petroleum
products and any chemical, substance or material defined, classified or
designated as hazardous, toxic or radioactive, or any other similar term, by any
of the Applicable Laws. It is the intent of Borrower that the term "Hazardous
Substances" be construed in the broadest sense possible under this Agreement. As
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used in this Agreement, "Other Property" means any property which becomes
contaminated with Hazardous Substances as a result of construction, operations
or other activities on, or the contamination of, the Property. The term
"Applicable Laws" as used in this Agreement shall include, without limitation,
(a) The Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by The Superfund Amendments and Reauthorization Act, (b) The
Resource Conservation and Recovery Act, as amended by The Hazardous and Solid
Waste Amendments of 1985, (c) any local, state or federal laws, rules,
regulations or ordinances (whether in existence on the date of this Agreement or
executed or promulgated after the date hereof) concerning the management,
control, discharge, treatment, containment, removal or remediation of substances
or materials that are or may become a threat to public health or the
environment, or (d) any common law theory involving materials or substances
which are (or are alleged to be) hazardous to human health or the environment.
X. Xxxxxxxx acknowledges and agrees that neither this
Agreement nor any of the Loan Documents shall put GE CAPITAL in the position of
an owner of the Property prior to any acquisition of the Property by GE CAPITAL.
The rights granted GE CAPITAL herein and in the Loan Documents are granted
solely for the protection of GE CAPITAL's liens and security interests covering
the Property, and do not grant to GE CAPITAL the right to control Xxxxxxxx's
actions, decisions or policies regarding Hazardous Substances.
J. This Agreement shall be binding upon its heirs,
representatives, successors and assigns. This Agreement shall inure to the
benefit of GE CAPITAL, any subsequent holder, in whole or in part, of the
documents evidencing and/or securing the Loan, any assignees or participants of
GE CAPITAL, and any person or entity who acquires the Property in connection
with a foreclosure of the Deed of Trust or pursuant to a deed given in lieu of
foreclosure. This Agreement shall be governed under the laws of the State of
California. In any suit, action or appeal therefrom to enforce or interpret this
Agreement, the prevailing party shall be entitled to recover its costs incurred
therein including attorneys' fees and disbursements at trial and on appeal.
K. If Borrower includes more than one person or entity,
each shall be jointly and severally liable hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Xxxxxxxx has executed this Instrument or
has caused the same to be executed by its representatives thereunto
duly authorized.
BORROWER:
TERADYNE, INC.,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Print: Xxxxxx X. Xxxxxxx
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Its: Vice President and Treasurer
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EXHIBIT A
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LEGAL DESCRIPTION
See Attached Schedule
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Schedule Pursuant to Instruction 2 to Rule 601 of Regulation S-K
under the Securities Act of 1933 and the Securities Exchange Act of 1934
Teradyne, Inc. entered into five of the foregoing Certificate and
Indemnity Agreement Regarding Hazardous Substances agreements. The agreements
are substantially identical but for the Exhibits A attached thereto. Such
Exhibits A are attached to and follow this schedule.
EXHIBIT "A"
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Legal Description
THE LAND REFERRED TO IN THIS COMMITMENT IS IN THE STATE OF CALIFORNIA, COUNTY OF
LOS ANGELES, AND IS DESCRIBED AS FOLLOWS:
LOT 3, OF TRACT NO. 43597, IN THE CITY OF AGOURA HILLS, AS PER MAP RECORDED IN
BOOK 1078 PAGES 72 TO 80 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
EXCEPT FROM A PORTION THEREOF AN UNDIVIDED ONE-HALF OF ALL OIL, GAS, PETROLEUM
AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND TO THAT PORTION OF SAID LAND
LYING BELOW THE DEPTH OF 500 FEET FROM THE SURFACE, WITHOUT THE RIGHT OF SURFACE
ENTRY, AS RESERVED IN THE DEED FROM XXX X. XXXXXXXXX AND XXXXXXX X. XXXXXXXXX,
HUSBAND AND WIFE AS JOINT TENANTS, IN DEED RECORDED AS INSTRUMENT NO. 1450 ON
DECEMBER 29, 1960 IN BOOK D1076 PAGE 565 OF OFFICIAL RECORDS.
ALSO EXCEPTING TO THE COUNTY OF LOS ANGELES ALL OIL, GAS HYDROCARBONS, OR OTHER
MINERALS IN AND UNDER THE ABOVE DESCRIBED PARCEL OF LAND WITHOUT THE RIGHT OF
SURFACE ENTRY FOR DEVELOPMENT THEREOF.
EXHIBIT "A"
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Legal Description
THE LAND REFERRED TO IN THIS COMMITMENT IS IN THE STATE OF CALIFORNIA, COUNTY OF
LOS ANGELES, AND IS DESCRIBED AS FOLLOWS:
LOT 2, OF TRACT NO. 43597, IN THE CITY OF AGOURA HILLS, AS PER MAP RECORDED IN
BOOK 1078 PAGES 72 TO 80 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
EXCEPT FROM A PORTION THEREOF AN UNDIVIDED ONE-HALF OF ALL OIL, GAS, PETROLEUM
AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND TO THAT PORTION OF SAID LAND
LYING BELOW THE DEPTH OF 500 FEET FROM THE SURFACE, WITHOUT THE RIGHT OF SURFACE
ENTRY, AS RESERVED IN THE DEED FROM XXX X. XXXXXXXXX AND XXXXXXX X. XXXXXXXXX,
HUSBAND AND WIFE AS JOINT TENANTS, IN DEED RECORDED AS INSTRUMENT NO. 1450 ON
DECEMBER 29,1960 IN BOOK D1076 PAGE 565 OF OFFICIAL RECORDS.
ALSO EXCEPTING TO THE COUNTY OF LOS ANGELES ALL OIL, GAS, HYDROCARBONS, OR OTHER
MINERALS IN AND UNDER THE ABOVE DESCRIBED PARCEL OF LAND WITHOUT THE RIGHT OF
SURFACE ENTRY FOR DEVELOPMENT THEREOF.
EXHIBIT "A"
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Legal Description
THE LAND REFERRED TO IN THIS COMMITMENT IS IN THE STATE OF CALIFORNIA, COUNTY OF
LOS ANGELES, AND IS DESCRIBED AS FOLLOWS:
LOT 1 OF TRACT 43597, IN THE CITY OF AGOURA HILLS, AS PER MAP RECORDED IN BOOK
1078 PAGE 72 TO 80 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPT FROM A PORTION THEREOF AN UNDIVIDED ONE-HALF OF ALL OIL, GAS, PETROLEUM
AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND TO THAT PORTION OF SAID LAND
LYING BELOW THE DEPTH OF 500 FEET FROM THE SURFACE, WITHOUT THE RIGHT OF SURFACE
ENTRY, AS RESERVED IN THE DEED FROM XXX X. XXXXXXXXX AND XXXXXXX X. XXXXXXXXX,
HUSBAND AND WIFE AS JOINT TENANTS, IN DEED RECORDED AS INSTRUMENT NO. 1450 ON
DECEMBER 29,1960 IN BOOK D1076 PAGE 565 OF OFFICIAL RECORDS.
ALSO EXCEPT TO THE COUNTY OF LOS ANGELES ALL OIL, GAS, HYDROCARBONS, OR OTHER
MINERALS IN AND UNDER THE ABOVE DESCRIBED PARCEL OF LAND WITHOUT THE RIGHT OF
SURFACE ENTRY FOR DEVELOPMENT THEREOF.
EXHIBIT "A"
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Legal Description
REAL PROPERTY in the City of San Xxxx, County of Santa Xxxxx, State of
California, described as follows:
LOT 2, so designated and delineated on the Map of Tract No. 7422 recorded April
25, 1983 in Book 511 of Maps, pages 20, 21, 22 and 23, Santa Xxxxx County
Records.
TOGETHER WITH an appurtenant easement for the purposes of mutual ingress and
egress, as granted by Xxx X. Xxxxxxx, Co., Inc. and CA. Xxxxxxx, Inc. to Fox
Lane Investment Company recorded June 1, 1983 in Book H597, page 745, Official
Records.
TOGETHER WITH mutual access easement established by Map of Tract No. 7422
recorded April 25, 1983 in Book 511 of Maps, pages 20, 21, 22 and 23, Santa
Xxxxx County Records.
EXHIBIT "A"
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Legal Description
REAL PROPERTY in the City of San Xxxx, County of Santa Xxxxx, State of
California, described as follows:
LOT 1, so designated and delineated on the Map of Tract No. 7422 recorded April
25, 1983 in Book 511 of Maps, pages 20, 21, 22 and 23, Santa Xxxxx County
Records.
TOGETHER WITH an appurtenant easement for the purposes of mutual ingress and
egress, as granted by Xxx X. Xxxxxxx, Co., Inc. and CA. Xxxxxxx, Inc. to Fox
Lane Investment Company recorded June 1, 1983 in Book H597, page 745, Official
Records.
TOGETHER WITH mutual access easement established by Map of Tract No. 7422
recorded April 25, 1983 in Book 511 of Maps, pages 20, 21, 22 and 23, Santa
Xxxxx County Records.
