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Exhibit
10.5
ENVIRONMENTAL INDEMNITY
AGREEMENT
THIS ENVIRONMENTAL
INDEMNITY AGREEMENT (this “
Agreement ” ) is made as of the
11 th day of July, 2006, by ALEXION MANUFACTURING
LLC, a Delaware limited liability company ( “
Borrower ” ), and ALEXION
PHARMACEUTICALS, INC., a Delaware corporation (the
“ Guarantor ” ; and
Borrower and Guarantor are hereinafter referred to herein
individually as an “ Indemnitor
” and collectively as the “
Indemnitors ” ), in favor of iSTAR
FINANCIAL INC., a Maryland corporation ( “
Lender ” ).
RECITALS
A. Borrower is the owner of
the Mortgaged Property. Guarantor is the owner, directly or
indirectly, of all of the ownership interests in the
Borrower.
B. Lender is prepared to make
a loan (the “ Loan ” ) to
Borrower in the aggregate principal amount of up to Twenty-Six
Million and No/100 Dollars ($26,000,000.00) pursuant to that
certain Loan and Security Agreement of even date herewith among
Borrower and Lender (as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time, the
“ Loan Agreement ” ) . The Loan
shall be evidenced by the Note. The Note shall be secured by, among
other things, the Mortgage and the other Loan Documents.
Capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed thereto in the Loan
Agreement.
C. Lender is unwilling to
make the Loan unless Indemnitors agree to provide the
indemnifications, representations, warranties, covenants and other
matters described in this Agreement for the benefit of the
Indemnified Parties.
D. Indemnitors will derive
financial and other benefits from the Loan.
E. Indemnitors are entering
into this Agreement to induce Lender to make the Loan.
AGREEMENT
NOW THEREFORE, in
consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Indemnitors hereby represent, warrant, covenant and
agree for the benefit of the Indemnified Parties as
follows:
1. Representations And
Warranties .
(a) Except as disclosed in
the Environmental Reports, there are no claims, liabilities,
investigations, litigation, administrative proceedings, whether
pending or, to Indemnitor’s knowledge threatened in writing,
or judgments or orders relating to any Hazardous Materials
(collectively called “ Environmental Claims
” ) asserted or threatened in writing against Borrower or
to Indemnitor’s knowledge any past or present tenant,
operator or owner of all or any part of the Land and the
Improvements (the Land and Improvements are sometimes
collectively referred to as the “
Real Estate ”). Except as disclosed in the
Environmental Reports, to Indemnitors’ knowledge, neither
Indemnitors nor any other Person has caused or permitted any
Release of any Hazardous Materials to be at, from, onto or on the
Real Estate in a manner which could form the basis for an
Environmental Claim.
(b) Except as disclosed in
the Environmental Reports, to Indemnitors’ knowledge,
(i) there has been no presence or Release of Hazardous
Materials (other than Hazardous Materials used in the usual and
customary course of constructing, operating and maintaining the
Real Estate or any other real property covered by this paragraph in
compliance with all applicable Environmental Laws) at, from, onto
or on the Real Estate in violation of Environmental Laws or in any
manner that could have a Material Adverse Effect, (ii) there
has been no presence or Release of Hazardous Substances on parcels
of land adjacent to the Real Estate in violation of applicable
Environmental Laws or in any manner which could have a Material
Adverse Effect, and (iii) no part of the Real Estate nor any
part of parcels adjacent to the Real Estate, including the
groundwater located thereon, is presently contaminated by Hazardous
Materials in violation of applicable Environmental Laws or in any
manner that could have a Material Adverse Effect. Except as
disclosed in the Environmental Reports, to the knowledge of
Indemnitors, no underground or above ground storage tanks or
surface impoundments are, or were located, on, under or at the Real
Estate.
(c) Except as disclosed in
the Environmental Reports, to Indemnitors’ knowledge,
Borrower and the Mortgaged Property has been and is currently in
compliance with all applicable Environmental Laws, including
obtaining and maintaining in effect all permits, licenses or other
authorizations required by Environmental Laws.
(d) Except as disclosed in
the Environmental Reports, neither the Borrower nor the Real Estate
is the subject of any pending or to Indemnitor’s knowledge
proposed or threatened site Remediation.
2. Environmental
Covenants .
(a) Indemnitors shall at all
times comply, and cause the Mortgaged Property to comply, with all
applicable Environmental Laws. Indemnitors shall not install or
permit to be installed, except in accordance with all applicable
Environmental Laws, any asbestos containing material or
above-ground or below-ground storage tanks at, on, above or under
the Real Estate.
(b) Indemnitors shall
promptly take any and all necessary remedial actions upon obtaining
knowledge of the presence or Release of any Hazardous Materials on,
under or about the Real Estate in violation of any Environmental
Laws or in any manner that could have a Material Adverse Effect. In
the event any such Person undertakes any remedial action with
respect to any such Hazardous Materials, such Person shall conduct
and complete such remedial action in compliance with all applicable
Environmental Laws.
(c) If an Event of Default
exists or Lender at any time has a reasonable basis to believe that
there may be a violation of any Environmental Laws by, or any
liability arising thereunder of, an Indemnitor or any other Person
relating to the Real Estate, then Indemnitors shall, upon request
from Lender, provide Lender with such reports, certificates,
engineering
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studies or other written material or
data as Lender may reasonably require so as to satisfy Lender that
the Borrower and the Mortgaged Property are in compliance with all
applicable Environmental Laws.
(d) In the event that the
Real Estate (or any portion thereof) becomes the subject of any
Remediation, Indemnitors shall commence such Remediation no later
than the earlier of (a) thirty (30) days after written
demand by Lender for performance thereof, or (b) such shorter
period of time as may be required under applicable law or direction
of any Governmental Authorities and thereafter shall diligently
prosecute the same to completion in accordance with all applicable
Environmental Laws. All Remediation shall be performed by
contractors approved in advance by Lender, which approval shall not
be unreasonably withheld, conditioned or delayed, and under the
supervision of a consulting engineer approved by Lender, which
approval shall not be unreasonably withheld, conditioned or
delayed. All costs and expenses of such Remediation shall be paid
by Indemnitors, including, without limitation, Lender’s
reasonable attorneys’ fees and actual out of pocket third
party costs incurred in connection with monitoring or review of
such Remediation. In the event Indemnitors shall fail to timely
commence, or cause to be commenced, or fail to diligently prosecute
to completion, such Remediation, Lender may, but shall not be
required to, cause such Remediation to be performed, and all actual
out of pocket third party costs and expenses thereof, or incurred
in connection therewith, shall become an Obligation under the
Loan.
3. Indemnified
Rights/Cooperation and Access . Indemnitors shall permit
Lender, any authorized representative of Lender and any consultant
or other Person retained by Lender to enter upon, examine, test and
inspect the Real Estate during normal business hours upon
reasonable advance notice. Subject to the limitations set forth in
the Loan Agreement, such entry, examination, testing and inspecting
and reporting with respect to such entry, examination, testing or
inspecting shall be at the expense of Indemnitors if (a) an
Event of Default has occurred and is continuing or (b) Lender
has reasonably determined that there may be a violation of
Environmental Laws or any liability arising under Environmental
Laws, which expense shall be paid by Indemnitors to Lender within
ten (10) days of demand. In connection with any entry,
examination, test or inspection of the Real Estate, Lender shall,
and Lender shall cause any authorized representative of Lender and
any consultant or other Person retained by Lender, to use their
respective good faith and commercially reasonable efforts not to
unreasonably disrupt the operations and/or maintenance of the
Mortgaged Property or create or worsen any presence or Release of
Hazardous Materials on the Real Estate.
4. Indemnification .
Indemnitors shall indemnify, pay, defend, and hold harmless Lender
and all other Indemnified Parties from and against any and all
Environmental Liabilities which Lender or any other Indemnified
Party may suffer, directly, as a result of or with respect to:
(a) any Environmental Claim relating to or arising from the
Real Estate; (b) the violation of any Environmental Laws in
connection with the Real Estate; (c) any presence or Release
of any Hazardous Materials affecting the Mortgaged Property;
(d) the presence at, in, on or under, or the Release, at or
from, the Real Estate of any Hazardous Materials, whether or not
such condition was known or unknown to Indemnitors; and
(e) any Remediation. If any such action or other proceeding
shall be brought against Lender, upon written notice from
Indemnitors to Lender (given reasonably promptly following
Lender’s notice to Indemnitors of such action or proceeding),
Indemnitors shall be entitled to assume the defense thereof, at
Indemnitors’
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expense, with counsel reasonably
acceptable to Lender; provided, however, Lender may, at its own
expense, retain separate counsel to participate in such defense,
but such participation shall not be deemed to give Lender a right
to control such defense, which right Indemnitors expressly retain.
Notwithstanding the foregoing, Lender shall, following notice to
and consultation with Indemnitor, have the right to employ separate
counsel at Indemnitors’ expense if, in the reasonable opinion
of legal counsel, a conflict or potential conflict exists between
the Indemnified Parties and Indemnitors that would make such
separate representation advisable. Indemnitors shall have no
obligation to indemnify an Indemnified Party to the extent of
damage or loss resulting from such Person’s gross negligence
or willful misconduct. Indemnitors’ obligations under this
Agreement shall not be subject to any limitations on liability
provided for in any of the Loan Documents. The covenants and
agreements of Indemnitors set forth in this Agreement (including
without limitation the indemnity provided for herein): (a) are
separate and distinct obligations from Indemnitors’
obligations with respect to the Loan and under the Loan Documents
and do not constitute the substantial equivalent of such
obligations, (b) shall not be discharged or satisfied by
foreclosure of the Mortgage or any Lien created by any of the other
Loan Documents, and (c) shall continue in effect after any
transfer of the Mortgaged Property, including transfers pursuant to
foreclosure proceedings (whether judicial or nonjudicial), or by
any deed in lieu of foreclosure. In no event shall the
indemnification contained herein include consequential or punitive
damages resulting from any claims brought directly by Lender,
however, such indemnification shall include consequential and
punitive damages arising in claims brought by third
parties.
5. Duty to Defend and
Attorneys and Other Fees and Expenses .
(a) Indemnitors shall
immediately upon becoming aware thereof advise Lender in writing
and in reasonable detail of: (1) any Release, disposal,
existence or discharge of any Hazardous Materials at the Real
Estate required to be reported to any Governmental Authority under
all applicable Environmental Laws, (2) any and all written
communications sent or received by an Indemnitor with respect to
any Environmental Claims or any Release, disposal, existence or
discharge of Hazardous Materials required to be reported to any
Governmental Authority or otherwise, (3) any remedial action
taken by an Indemnitor or any other Person in response to any
Hazardous Materials on, under or about the Real Estate (or parcels
adjacent to the Real Estate), the existence of which could result
in an Environmental Claim; (4) the discovery by an Indemnitor
of any occurrence or condition on any real property adjoining or in
the vicinity of the Real Estate that could cause such real property
or any part thereof to be classified as “border-zone
property” or to be otherwise subject to any restrictions on
the ownership, occupancy, transferability or use thereof under any
Environmental Laws; (5) any request for information from any
Governmental Authority that indicates such Governmental Authority
is investigating whether an Indemnitor may be potentially
responsible for a Release, disposal or discharge of Hazardous
Materials; and (6) the Release, existence, disposal or
discharge of Hazardous Materials from or onto the Real Estate which
would reasonably be anticipated to have a Material Adverse
Effect.
(b) Indemnitors shall, at
their own expense, provide copies of such documents or information
as Lender may reasonably request in relation to any matters
disclosed pursuant to this Section 5.
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6. Definitions . As
used in this Agreement, the following terms shall have the
following meanings:
The term
“Environmental Liabilities” includes any
damages, costs, fees, expenses, claims, suits, judgments, awards,
liabilities (including but not limited to strict liabilities),
obligations, debts, diminutions in value of the Mortgaged Property,
fines, penalties, charges, costs of remediation (whether or not
performed voluntarily), amounts paid in settlement, foreseeable and
litigation costs, attorneys’ fees, costs of appeal,
engineers’ fees, environmental consultants’ fees, and
investigation costs (including but not limited to costs for
sampling, testing and analysis of soil, water, air, building
materials, and other materials and substances whether solid, liquid
or gas), of whatever kind or nature, and whether or not incurred in
connection with any judicial or administrative proceedings,
actions, claims, suits, judgments or awards.
The term
“Indemnified Parties” includes Lender, any
Person who is or will have been involved with the servicing of the
Loan, any Person in whose name the encumbrance created by the
Mortgage is or will have been recorded, persons and entities who
may hold or acquire or will have held a full or partial interest in
the Loan (including, but not limited to, Investors (defined
below)), as well as custodians, trustees and other fiduciaries who
hold or have held a full or partial interest in the Loan for the
benefit of third parties) as well as the respective directors,
officers, shareholders, partners, members, managers, employees,
agents, representatives, contractors, subcontractors, affiliates,
subsidiaries, participants, successors and assigns of any and all
of the foregoing (including, but not limited to, any other Person
who holds or acquires, or will have held, a participation or other
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