Hazardous Materials Indemnification Agreement

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 MASON LABORATORIES, INC., a Massachusetts corporation, having a place of business at 57 Union Street, Worcester, Massachusetts 01608, 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 75 Federal Street, Boston, Massachusetts 02110 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; p ...