Hazardous Materials Indemnity Agreement

Exhibit 10.28.5


HAZARDOUS MATERIALS INDEMNITY AGREEMENT


THIS INDEMNITY AGREEMENT (the "Agreement") is entered into as of the 28th day of December, 1998, by the undersigned (hereinafter referred to collectively as the "Indemnitors"), in favor of Genzyme Corporation (the "Mortgagee") with its main office at One Kendall Square, Cambridge, Massachusetts 02139.


Reference is made to the following facts:


A. The Indemnitors have entered into an Amended and Restated Reimbursement Agreement dated as of the date hereof (as amended from time to time, the "Reimbursement Agreement") pursuant to which the Mortgagee agreed, subject to the terms and conditions set forth therein, to certain financial accommodations to Genzyme Transgenics Corporation (the "Accommodations").


B. As a condition to making the Accommodations, Mortgagee requires that Indemnitors agree to indemnify and hold harmless Mortgagee from any Environmental Claim, any Requirements of Environmental Law, and any violation of any Environmental Permit, and all Costs (as the foregoing terms are defined in Exhibit A hereto), in each case, relating to the Premises (as hereinafter defined). Mortgagee would not make the Accommodations without this Agreement and Indemnitors acknowledge and understand that this Agreement is a material inducement for Mortgagee's agreement to make the Accommodations.


C. One of the Indemnitors is the owner of each of the parcels described as "Owned Properties" on the attached Exhibit B and is the tenant under certain leases (the "Leases") listed on Exhibit B, which leases relate to occupancy of certain real property described as "Leased Properties" on Exhibit B. The Owned Properties and the Leased Properties are individually and collectively referred to as the "Premises". The other Indemnitors are affiliates of such owners and tenants.


NOW, THEREFORE, in consideration of the Mortgagee's agreement to make the Accommodations and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitors hereby covenant and agree as follows:


1. Hazardous Materials; Compliance with Requirements of Environmental Law.


a. The Indemnitors represent and warrant that they have never generated, stored (other than the lawful storage of heating oil in amounts required for the heating of buildings located on the Premises, or other than the handling of Hazardous Materials in the Indemnitors' ordinary course of business in compliance with the Requirements of Environmental Law), or disposed of any Hazardous Materials on the Premises or any other property owned, occupied or operated by the Indemnitors or any person for whose conduct the Indemnitors are responsible, that, except as previously disclosed in writing to the Mortgagee, the Indemnitors are not aware of the generation, storage, disposal or release of Hazardous Materials on the Premises by anyone else, and that the Indemnitors are not aware of the generation, storage, disposal or release of Hazardous Materials upon or into the real property adjoining or in the vicinity of the Premises which through soil or ground water migration could have come to be located at the Premises. The Indemnitors further represent and warrant that, except as previously disclosed in


writing to the Mortgagee, there are no existing or closed underground storage tanks on the Premises. The Indemnitors agree not to release or dispose of any Hazardous Materials at the Premises, nor to permit same, at any time.


b. The Indemnitors represent and warrant that the Premises complies and that the Premises and the Indemnitors shall comply with all Requirements of Environmental Law. The Indemnitors covenant to immediately notify the Mortgagee of the presence, release or threat of release of any Hazardous Materials at or from the Premises or any other property owned, occupied or operated by the Indemnitors or any person for whose conduct the Indemnitors are responsible or of any notice or claim received by it of any violation of any Requirements of Environmental Law.


c. The Mortgagee may (but shall not be obligated to), from time to time, for reasonable cause, and at the Indemnitors' expense, conduct such investigations as the Mortgagee deems reasonable to determine whether Hazardous Materials exist on any part of the Premises and to determine the source, quantity and type of such Hazardous Materials, if any, and the Indemnitors shall cooperate with the Mortgagee in conducting such investigations. Such investigations may include without limitation a detailed visual inspection of the Premises, including all storage areas, storage tanks, drains and dry wells, as well as the taking of soil samples, surface water samples, and ground water samples and such other investigations or analyses as are necessary or appropriate in the Mortgagee's sole discretion for a complete assessment of the compliance of the Premises and the use and operation thereof with all Requirements of Environmental Law. The Mortgagee and its officers, employees, agents and contractors shall have and are hereby granted the right to enter upon the Premises for the foregoing purposes, provided that the Mortgagee shall use reasonable efforts to minimize the disruption to the operation of the Indemnitors' business on the Premises.


d. Without limiting the generality of this Section, the Indemnitors, and the Premises and all alterations thereof, shall comply with all local, state and federal laws and regulations now or hereafter in effect and applicable relating to the presence, abatement, removal, disposal, transportation or treatment of materials containing asbestos.


e. Without limiting the generality of this Section, if any portion of the Premises is to be used for residential purposes, the Premises and all alterations thereof shall comply with all local, state and federal laws and regulations now or hereafter in effect and applicable relating to the presence, abatement, removal, disposal, transportation or treatment of materials containing lead paint.


2. Indemnification.


a. Indemnitors shall protect, defend, indemnify, and hold harmless Mortgagee, its officers, directors, shareholders, agents, employees, parents, subsidiaries and affiliates and their respective heirs, legal representatives, successors and assigns (Mortgagee and all such other persons and entities being referred to herein individually as an "Indemnitee" and collectively as "Indemnitees") from and against all Costs which at any time may be imposed upon the Premises, the Indemnitees, or any of them, arising out of or in connection with (i) Requirements of Environmental Law; (ii) Environmental Claims; (iii) the failure of Indemnitors,


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or any other party directly or indirectly connected with the Premises, or affiliated with Indemnitors having any control over or responsibility for the use and operation of the Premises, to obtain, maintain, or comply with any Environmental Permit; and/or (iv) the presence, existence or threat of release of Hazardous Materials (as defined in Exhibit A hereto) at, on, about, under, within or in connection with the Premises.


b. In the event that any Remedial Work (as defined in Exhibit A hereto) is necessary under any applicable local, state or federal law or regulation, any judicial order, or by any governmental or non-governmental entity or person because of, or in connection with, the current or future presence, suspected presence, release or suspected release or threat of release of Hazardous Materials in or into the air, soil, ground water, surface water or soil vapor at, on, about, under, within, near, from or in connection with the Premises (or any portion thereof), Indemnitors shall promptly commence, or cause to be commenced, and thereafter diligently prosecute to completion, all such Remedial Work. All Remedial Work shall be performed by licensed contractors qualified to perform such work under applicable federal, state and local law. All Costs related to such Remedial Work shall be paid by Indemnitors including, without limitation, reasonable Costs incurred by any Indemnitee in connection with the monitoring or review of such Remedial Work by the Indemnitee or a third party engaged by Indemnitee. In the event Indemnitors shall fail to promptly commence, or cause to be commenced, or fail to diligently prosecute to completion, such Remedial Work, Mortgagee may, but shall not be required to, cause such Remedial Work to be performed and all Costs shall become an Environmental Claim hereunder.


c. This Agreement, and all rights and obligations hereunder shall survive (i) repayment of the Accommodations; (ii) satisfaction, assignment or reconveyance of the Mortgages by which the Premises secure the Indemnitor's obligations under the Reimbursement Agreement (collectively, the "Mortgages"), and release of other security provided in connection with the Accommodations; (iii) foreclosure of the Mortgages and other security instruments in connection with the Accommodations; (iv) acquisition of the Premises by Mortgagee by deed-in-lieu of foreclosure or otherwise; (v) sale, assignment or transfer of all or any portion of Mortgagee's rights in the Accommodations and the Premises and (vi) termination of any of the Leases.


d. Nothing contained in this Agreement shall prevent or in any way diminish or interfere with any rights or remedies, including, without limitation, the right to contribution, which any Indemnitee may have against Indemnitors or any other party under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified at Title 42 U.S.C. ss. 9601 et seq.), as it may be amended from time to time, or any other applicable federal, state or local laws, all such rights being hereby expressly reserved.


3. Notice of Actions.


a. Indemnitors shall give immediate written notice to Mortgagee of: (i) its use, manufacture, production, handling or storage of any type of Hazardous Material at the Premises, not previously disclosed to Mortgagee, or any substantial increase in the quantity or magnitude of the use, manufacturing, production, handling or storage of any type of Hazardous Material at the Premises above levels previously disclosed to Mortgagee; (ii) any proceeding,


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inquiry, notice, or other communication to it or of which it has knowledge, or with the exercise of due diligence, should have had knowledge by or from any governmental or non-governmental entity regarding the presence or suspected presence of any Hazardous Material at, on, about, under, within or in connection with the Premises or any migration thereof from or to the Premises; (iii) any actual or all ...