Attached files
file | filename |
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8-K - FORM 8-K - SMITH & WESSON BRANDS, INC. | p18349e8vk.htm |
EX-10.79 - EX-10.79 - SMITH & WESSON BRANDS, INC. | p18349exv10w79.htm |
EX-10.78 - EX-10.78 - SMITH & WESSON BRANDS, INC. | p18349exv10w78.htm |
EX-10.80 - EX-10.80 - SMITH & WESSON BRANDS, INC. | p18349exv10w80.htm |
EX-10.82 - EX-10.82 - SMITH & WESSON BRANDS, INC. | p18349exv10w82.htm |
EX-10.63.A - EX-10.63.A - SMITH & WESSON BRANDS, INC. | p18349exv10w63wa.htm |
EX-10.62.A - EX-10.62.A - SMITH & WESSON BRANDS, INC. | p18349exv10w62wa.htm |
EX-10.64.A - EX-10.64.A - SMITH & WESSON BRANDS, INC. | p18349exv10w64wa.htm |
Exhibit 10.81
HAZARDOUS MATERIALS INDEMNITY AGREEMENT
THIS HAZARDOUS MATERIALS INDEMNITY AGREEMENT (this Agreement) is entered into as of
December 7, 2010, by SMITH & WESSON HOLDING CORPORATION, a Nevada corporation, SMITH & WESSON
CORP., a Delaware corporation, THOMPSON/CENTER ARMS COMPANY, INC., a New Hampshire corporation,
THOMPSON CENTER HOLDING CORPORATION, a Delaware corporation, UNIVERSAL SAFETY RESPONSE, INC., a
Delaware corporation, FOX RIDGE OUTFITTERS, INC., a New Hampshire corporation, K.W. THOMPSON TOOL
COMPANY, INC., a New Hampshire corporation, O.L. DEVELOPMENT, INC., a New Hampshire corporation,
BEAR LAKE HOLDINGS, INC., a Delaware corporation, and SMITH & WESSON DISTRIBUTING, INC., a Delaware
corporation (each a Indemnitor and, together the Indemnitors), in favor of TD
BANK, N.A., in its capacity as administrative agent (together with any successor administrative
agent hereunder, Administrative Agent), for itself and the other Secured Parties (as
defined in the Credit Agreement, as defined below).
Reference is made to the following facts:
A. The Indemnitors are entering into an Amended and Restated Credit Agreement of even date
herewith (as the same may be amended, restated, renewed, modified, consolidated or extended from
time to time, the Credit Agreement), with the Administrative Agent, and the lenders party
thereto from time to time (Lenders), pursuant to which the Lenders have agreed, subject
to the terms and conditions set forth therein, to make certain Loans (as defined in the Credit
Agreement, and certain other financial accommodations to the Borrowers, collectively the
Loans). Except as otherwise expressly defined herein or in the exhibits attached hereto,
all capitalized terms shall have the meanings ascribed to them in the Credit Agreement.
B. As a condition to making the Loans, the Lenders require that the Indemnitors agree to
indemnify and hold harmless the Secured Parties from any Environmental Claim, any violation of any
Requirement of Environmental Law, any violation of any Environmental Permit, and all Costs (as the
foregoing terms are defined in Exhibit A hereto) relating to the Premises (as hereinafter
defined) all as set forth herein. The Lenders would not make the Loans without this Agreement and
the Indemnitors acknowledge and understand that this Agreement is a material inducement for the
Lenders agreement to make the Loans.
C. Certain of the Indemnitors are the owners of certain of the parcels described as Owned
Properties on the attached Exhibit B and certain Indemnitors are tenants under certain
leases (the Leases) listed on Exhibit B, which Leases relate to occupancy or
operation of certain real property described as Leased Properties on Exhibit B. The
Owned Properties and the Leased Properties and any other properties which may from time to time be
owned, leased, operated or used by the Indemnitors or any Subsidiary formed or acquired by any
Indemnitor or any person for whose conduct any Indemnitor or any Subsidiary of such Indemnitor is
responsible, are individually and collectively referred to as the Premises.
NOW, THEREFORE, in consideration of the Lenders agreement to make the Loans to the Borrowers
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Indemnitor hereby covenants and agrees as follows:
1. Hazardous Materials; Compliance with Requirements of Environmental Law.
(a) Each Indemnitor represents and warrants, except as may be disclosed in any environmental
review set forth on Exhibit C attached hereto (the Existing Reports), that (i) no
Indemnitor and, to the best of such Indemnitors knowledge, no prior owner of the Premises or any
other person, has generated, stored, or disposed of any Hazardous Materials on the Premises (other
than Hazardous Materials used, generated, stored or disposed of in the ordinary course of business
in compliance with the Requirements of Environmental Law), (ii) no Indemnitor is 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, and (iii) there are no existing or closed underground
storage tanks on the Premises. Each Indemnitor further represents and warrants that, except as
disclosed in the Existing Reports, the Premises comply in all respects with the Requirements of
Environmental Law.
(b) Each Indemnitor covenants and agrees that (i) the Premises shall at all times comply in
all material respects with the Requirements of Environmental Law, and (ii) such Indemnitor shall
immediately notify the Administrative Agent of (x) any release of any Hazardous Materials at or
from the Premises in violation of any Requirements of Environmental Law or (y) any notice or claim
received by such Indemnitor of any violation of any Requirements of Environmental Law. Each
Indemnitor further covenants and agrees not to release or dispose of any Hazardous Materials at the
Premises, nor to permit same, at any time in violation of the Requirements of Environmental Law.
Each Indemnitor further covenants and agrees that upon becoming aware of the violation of any
Requirements of Environmental Law related to all or any portion of the Premises, including, without
limitation, any possible violations of any Requirements of Environmental Law set forth in the
Existing Reports, Indemnitors shall, at the sole expense of the Indemnitors, take actions necessary
to arrange for monitoring, clean-up, containment, removal, remediation or restoration of each
portion of the Premises as are required pursuant to any Requirements of Environmental Law.
(c) The Administrative Agent may (but shall not be obligated to), at the expense of the
Indemnitors, conduct such professional environmental assessments as the Administrative Agent in its
reasonable discretion deems appropriate 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 Administrative Agent 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 the Administrative Agent in its reasonable discretion deems
appropriate to determine whether the Premises and the use and operation thereof comply in all
material respects with the Requirements of Environmental Law. The Administrative Agent 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 Administrative Agent shall use
reasonable efforts to minimize the disruption to the operation of the Indemnitors business.
2. Indemnification.
(a) Each Indemnitor shall protect, defend, indemnify, and hold harmless each Secured Party and
their respective officers, directors, shareholders, agents, employees, parents, subsidiaries and
affiliates and their respective heirs, legal representatives, successors and assigns (the Secured
Parties 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 asserted against or 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 any Indemnitor or any other party directly or indirectly connected with the Premises, or
affiliated with
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any Indemnitor 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 at, on, about, under, within or in
connection with the Premises.
(b) In the event that any Remedial Work (as defined in Exhibit A attached 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), the
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 the Indemnitors including, without limitation,
reasonable Costs incurred by the Administrative Agent and/or one or more third parties engaged by
the Administrative Agent in connection with the monitoring or review of such Remedial Work by the
Indemnitors or one or more third parties engaged by the Administrative Agent. In the event the
Indemnitors shall fail to promptly commence, or cause to be commenced, or fail to diligently
prosecute to completion, such Remedial Work, the Administrative Agent may, but shall not be
required to, cause such Remedial Work to be performed and all Costs shall become an Environmental
Claim hereunder.
(c) The indemnification obligations of the Indemnitors under this Agreement shall survive (i)
repayment of the Loans; (ii) satisfaction, assignment or reconveyance of any Mortgage (as defined
in the Credit Agreement), including without limitation the Mortgages by which certain of the
Premises secure the Indemnitors obligations under the Credit Agreement and the other Loan
Documents; (iii) release of any other security provided in connection with the Loans; (iv)
foreclosure or enforcement of any Mortgage and other security instruments in connection with the
Loans; (v) acquisition of the Premises by any Secured Party or any Affiliate of a Secured Party by
assignment or deed-in-lieu of foreclosure or other enforcement or otherwise (except with respect to
any actual violation of any Requirements of Environmental Law by any Indemnitee following such
acquisition); and (vi) sale, assignment or transfer of all or any portion of any Secured Partys
rights in the Loans and to any of the Premises.
(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 any Indemnitor or any other party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (codified at Title 42 U.S.C. § 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) The Indemnitors shall give immediate written notice to the Administrative Agent of: (i)
the use, manufacture, production, handling or storage of any type of Hazardous Material at the
Premises, not previously disclosed in writing to the Administrative Agent 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 in writing to the
Administrative Agent; (ii) any proceeding, inquiry, notice, or other communication to the
Indemnitors (or any one or more of them) or of which any such Indemnitor has knowledge by or from
any governmental or non-
governmental entity or person 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
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Premises; (iii) any actual or alleged violation of the Requirements of Environmental
Law; (iv) any Environmental Claim; (v) the discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Premises that could subject the owner or any person
having any interest in the Premises to any liability or penalty under the Requirements of
Environmental Law; and (vi) the receipt of any notice or discovery of any information regarding any
actual, alleged, or potential spillage, seepage, release, discharge, disposal or any other presence
or existence of any Hazardous Material at, on, about, under, within, near or in connection with the
Premises in material violation of any Requirements of Environmental Law.
(b) Upon receipt of the same, the Indemnitors shall deliver to the Administrative Agent copies
of any and all Environmental Claims, and any and all orders, notices, permits, applications,
reports, and other communications, documents, and instruments pertaining to the actual, alleged, or
potential presence or existence of any Hazardous Material at, on, about, under, within, near or in
connection with the Premises.
4. Procedures Relating to Indemnification.
(a) In any circumstance in which this Agreement applies, the Administrative Agent may, but
shall not be obligated to, employ its own legal counsel and consultants to investigate, prosecute,
negotiate, or defend any such Environmental Claim and in the event liability is asserted directly
against the Administrative Agent or any other Secured Party, such Secured Party shall have the
right to compromise or settle such Environmental Claim or claim of liability against such Secured
Party without the consent of the Indemnitors. The Indemnitors shall reimburse the Administrative
Agent within fifteen (15) days of demand, for all reasonable Costs incurred by the Secured Parties
hereunder, including the amount of all Costs of settlements entered into by one or more Secured
Parties.
(b) No Indemnitor shall, without the prior written consent of the Administrative Agent, (i)
settle or compromise any action, suit, proceeding, or claim or consent to the entry of any judgment
that relates to the Premises and that does not include as an unconditional term thereof the
delivery by the claimant or plaintiff to the Administrative Agent of (x) a full and complete
written release of the Administrative Agent and the other Secured Parties (in form, scope and
substance satisfactory to the Administrative Agent in its reasonable discretion) from all liability
in respect of such action, suit or proceeding and (y) if applicable, a dismissal with prejudice of
such suit, action or proceeding; or (ii) settle or compromise any action, suit, proceeding, or
claim in any manner that may adversely affect the Administrative Agent or any other Secured Party
as determined by the Administrative Agent or such Secured Party in its reasonable discretion.
5. Binding Effect. This Agreement shall be binding upon each Indemnitor and its
successors and permitted assigns and shall inure to the benefit of the Indemnitees and their
respective successors and assigns, including as to the Administrative Agent and each other Secured
Party, without limitation, any Affiliate of the Administrative Agent or such other Secured Party
which acquires all or part of the Premises by any sale, assignment, assignment or deed-in-lieu of
foreclosure or other enforcement, or foreclosure under any Mortgage, or otherwise. The obligations
of the Indemnitors under this Agreement shall not be assigned without the prior written consent of
the Administrative Agent, which consent may be given or withheld in the sole discretion of the
Administrative Agent.
6. Additional Subsidiaries; Joint and Several Liability.
(a) In the event any Indemnitor forms or acquires any Subsidiary, or otherwise
obtains control over any other person or entity (a Controlled Entity), such Indemnitor
shall cause such Subsidiary or such Controlled Entity to be become a party to this Agreement
pursuant to Section 6.13 of
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the Credit Agreement by signing a Joinder to Hazardous Material
Indemnity Agreement in substantially the form of Exhibit D attached hereto, whereupon each
such Subsidiary or Controlled Entity shall be obligated to the Administrative Agent and the other
Secured Parties as if such Subsidiary or Controlled Entity were an Indemnitor hereunder. Each
such Subsidiary or Controlled Entity that executes a Joinder to Hazardous Material Indemnity
Agreement shall be referred to herein as an Additional Indemnitor.
(b) The liability of the Indemnitors and all Additional Indemnitors shall be joint and
several. The liability of the Indemnitors and all Additional Indemnitors under this Agreement
shall in no way be limited or impaired by the provisions of any of the Loan Documents, or any
amendment, modification, extension or renewal thereof. No delay on the part of the Administrative
Agent or any other Secured Party in acting under this Indemnity shall operate as a waiver of any of
the Administrative Agents or such Secured Partys rights hereunder. No waiver hereunder by the
Administrative Agent or any other Secured Party in any instance shall constitute a waiver in any
other instance.
7. Waiver. Each Indemnitor waives any right or claim of right to cause a marshalling
of the assets of such Indemnitor (or any other Indemnitor) or to cause the Administrative Agent or
any other Secured Party to proceed against any of the security for the Loans before proceeding
under this Agreement against any Indemnitor; each Indemnitor agrees that any payments required to
be made hereunder shall become due on demand; to the extent permitted by applicable law, each
Indemnitor expressly agrees that the liability of such Indemnitor hereunder shall in no way be
affected by: (a) the release or discharge of such Indemnitor in any creditors, receivership,
bankruptcy or other proceedings; (b) the impairment, limitation or modification of the liability of
such Indemnitor or the estate of such Indemnitor in bankruptcy, or of any remedy for the
enforcement of such Indemnitors liability under the Loan Documents, resulting from the operation
of any present or future provision of the Bankruptcy Code, 11 U.S.C. § 101 et seq. or other similar
statute or from the decision in any court; (c) the rejection or disaffirmance of the Loan Documents
in any such proceedings; (d) the assignment or transfer of the Loan Documents by any Indemnitor;
(e) any disability or other defense of any Indemnitor; or (f) the cessation from any cause
whatsoever for the liability of any Indemnitor. Without limiting the generality of the foregoing,
each Indemnitor hereby waives all suretyship defenses or defenses in the nature thereof.
8. Notices. All notices, consents, approvals, elections and other communications
(collectively Notices) hereunder shall be in writing (whether or not the other provisions
of this Agreement expressly so provide) and shall be deemed to have been duly given if delivered to
the Administrative Agent and the Borrowers in accordance with the terms of the Credit Agreement.
9. Attorneys Fees. In the event that any Indemnitee brings or otherwise becomes a
party to any suit or other proceeding (including, without limitation, any administrative
proceedings, but excluding any suit brought by an Indemnitee which is ruled to be frivolous or
brought in bad faith) with respect to the subject matter or enforcement of this Agreement, such
Indemnitee shall, in addition to such other relief as may be awarded, be entitled to recover from
the Indemnitors reasonable attorneys fees, expenses and costs of investigation as are actually
incurred (including, without limitation, reasonable attorneys fees (including, without limitation,
those of in-house counsel), expenses and costs of investigation incurred in appellate proceedings,
costs incurred in establishing the right to indemnification, or in any action or participation in,
or in connection with, any case or proceeding under Chapter 7, 11 or 13 of the Bankruptcy Code, 11
U.S.C. § 101 et seq., or any successor statutes).
10. Governing Law. This Agreement, including the validity hereof 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 State of New York, including, but not limited to,
Section 5-1401 of the
New York General Obligations Law, except that the laws of the jurisdiction in which the
Premises are located shall be applicable to the extent required to enforce the remedies provided
herein with respect to
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the Premises. Each Indemnitor, to the extent that it may lawfully do so,
hereby consents to service of process, and to be sued, in the State of New York and to the
jurisdiction of any state in which any of the Premises is located and consents to the jurisdiction
of the courts of the State of New York and the United States District Court for the District of New
York and the jurisdiction of any state court or any United States federal court sitting in the
state in which any Premises is located, as well as to the jurisdiction of all courts to which an
appeal may be taken from such courts, for the purpose of any suit, action or other proceeding
arising out of any of its obligations hereunder or with respect to the transactions contemplated
hereby, and expressly waives any and all objections it may have as to venue in any such courts.
Each Indemnitor further agrees that a summons and complaint commencing a suit, action or proceeding
in any of such courts shall be properly served and shall confer personal jurisdiction if served
personally or by certified mail in accordance with the terms of the Credit Agreement or as
otherwise provided under the laws of the State of New York or as otherwise provided under the laws
of the state in which any Premises is located. Nothing in this Agreement shall affect any right
the Agent or any Indemnitee may otherwise have to bring an action or proceeding relating to this
Agreement against any Indemnitor or its properties in the courts of any jurisdiction.
11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
12. Successive Actions. A separate right of action hereunder shall arise each
time the Administrative Agent acquires knowledge of any matter indemnified by the Indemnitors under
this Agreement. Separate and successive actions may be brought hereunder to enforce any of the
provisions hereof at any time and from time to time. No action hereunder shall preclude any
subsequent action, and the Indemnitors hereby waive and covenant not to assert any defense in the
nature of splitting of causes of action or merger of judgments.
13. Partial Invalidity. If any provision of this Agreement shall be determined to be
unenforceable in any circumstances by a court of competent jurisdiction, then the balance of this
Agreement shall be enforceable nonetheless, and the subject provision shall be enforceable in all
other circumstances.
14. Interest on Unpaid Amounts. All amounts required to be paid or reimbursed to
Indemnitees hereunder shall bear interest from the date of expenditure by the Indemnitees or the
date of written demand to the Indemnitors hereunder, whichever is later, until paid to
Indemnitee(s). The interest rate shall be the highest applicable rate of interest at such time
under the Credit Agreement.
15. Authority. Each individual signing this Agreement on behalf of any Indemnitor or
any Additional Indemnitor which is not a natural person warrants and represents to the
Administrative Agent
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and the other Secured Parties that he or she is authorized to do so by all
requisite action of such Indemnitor or such Additional Indemnitor.
16. Exhibits. All exhibits attached hereto are incorporated by reference.
17. Counterparts. This Agreement may be executed by the parties hereto in
counterparts, each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy or electronic mail (including, without limitation, PDF) shall be
effective as delivery of a manually executed counterpart of this Agreement.
*The Next Pages are the Signature Pages*
-7-
IN WITNESS WHEREOF, Indemnitors have executed this Agreement under seal as of the date first
set forth above.
INDEMNITORS: SMITH & WESSON HOLDING CORPORATION |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer | |||
SMITH & WESSON CORP. |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer | |||
THOMPSON/CENTER ARMS COMPANY, INC. |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer | |||
UNIVERSAL SAFETY RESPONSE, INC. |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer | |||
FOX RIDGE OUTFITTERS, INC. |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer |
*Signatures Continued on Next Page*
[Signature Page to Hazardous Materials Indemnity Agreement]
BEAR LAKE HOLDINGS, INC. |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer | |||
K.W. THOMPSON TOOL COMPANY, INC. |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer | |||
O.L. DEVELOPMENT, INC. |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer | |||
THOMPSON CENTER HOLDING COMPANY |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer | |||
SMITH & WESSON DISTRIBUTING, INC. |
||||
By: | /s/ John R. Dineen | |||
Name: | John R. Dineen | |||
Title: | Interim Chief Financial Officer |
*Signatures Continued on Next Page*
[Signature Page to Hazardous Materials Indemnity Agreement]
Administrative Agent: TD BANK, N.A., as Administrative Agent |
||||
By: | /s/ Maria P. Goncalves | |||
Name: | Maria P. Goncalves | |||
Title: | Regional Vice President |
[Signature Page to Hazardous Materials Indemnity Agreement]
Exhibits:
|
A Definitions B Premises Description C Environmental Reports D Joinder to Hazardous Materials Indemnity Agreement |
EXHIBIT A
Definitions
Definitions. For purposes of this Agreement, the following terms shall have the following
meanings:
(a) Costs shall mean all liabilities, losses, reasonable costs, damages (including
consequential damages), reasonable expenses, claims, reasonable attorneys fees, reasonable
experts fees, reasonable consultants fees and disbursements of any kind or of any nature
whatsoever. For the purposes of this definition, such losses, costs and damages shall include,
without limitation, remedial, removal, response, abatement, restoration, cleanup, legal,
investigative and monitoring costs and related costs, expenses, losses, damages, penalties, fines,
obligations, defenses, judgments, suits, proceedings and disbursements. Costs shall also include,
without limitation, (i) the costs of removal, transportation and disposal of any and all Hazardous
Materials from all or any portion of any of the Premises, (ii) costs required to take necessary
precautions to protect against the release of Hazardous Materials at, on, in, about, under, within,
near or in connection with any of the Premises in or into the air, soil, surface water, ground
water, or soil vapor, any public domain, or any surrounding areas, and (iii) costs incurred to
comply, in connection with all or any portion of any of the Premises, with all applicable laws with
respect to Hazardous Materials, including any such laws applicable to the work referred to in this
sentence.
(b) Environmental Claim shall include, but not be limited to, any claim, demand,
action, cause of action, suit, loss, cost, damage, fine, penalty, expense, liability, judgment,
proceeding, or injury, whether threatened, sought, brought, or imposed, that seeks to impose costs
or liabilities for the following, occurring at, on, about under, within, near, from, or in
connection with any of the Premises: (i) noise; (ii) pollution or contamination of the air, surface
water, ground water, or soil; (iii) solid, gaseous, or liquid waste generation, handling,
treatment, storage, disposal, or transportation; (iv) exposure to Hazardous Materials; (v) the
manufacture, processing, distribution in commerce, use, or storage of Hazardous Materials; (vi)
injury to or death of any person or persons arising out of the discharge, release, storage,
handling, presence, or transport of Hazardous Materials; (viii) any and all penalties arising out
of the discharge, release, storage, handling, presence, or transport of Hazardous Materials, (ix)
any assertion of breach or violation of any Requirements of Environmental Law, or any event,
occurrence, or condition relating to any of the Properties as a consequence of which (A) any
Indemnitor, any Indemnitee, or any owner, occupant, or person having any interest in any of the
Premises shall be liable under Environmental Law, or (B) any of the Premises shall be subject to
any restriction on use, ownership, transferability, or (iii) any Remedial Work shall be required.
(c) Environmental Permit means any permit, license, approval, or other authorization
with respect to any activities, operations, or businesses conducted on or in relation to any of the
Premises under any applicable law, regulation, or other requirement of the United States or any
state, municipality, or other subdivision or jurisdiction related to pollution or protection of
health or the environment, or any private agreement (such as covenants, conditions and
restrictions), including laws, regulations or other requirements relating to emissions, discharges,
or releases or threatened releases of Hazardous Materials into ambient air, surface water, ground
water, or soil, or otherwise relating to the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transportation, or handling of Hazardous Materials at,
on, about, under, within, near, or from any of the Premises.
(d) Remedial Work shall mean any investigation, site monitoring, containment,
clean-up, removal, transportation, disposal, restoration, reporting, or sampling with respect to
Hazardous Materials or soil, water, tanks, drums or other materials which contain or contained
Hazardous Materials.
(e) Requirements of Environmental Law means all requirements of Environmental Laws
or ecological laws or regulations or controls which are applicable to any of the Premises or the
activities conducted thereon, including all requirements imposed by any law, rule, order, or
regulations of any federal, state, or local executive, legislative, judicial, regulatory, or
administrative agency, board, or authority, or any private agreement (such as covenants, conditions
and restrictions), which relate to (i) noise; (ii) pollution or protection of the air, surface
water, ground water, or soil; (iii) solid, gaseous, or liquid waste generation, treatment, storage,
disposal, or transportation; (iv) exposure to Hazardous Materials; or (v) regulation of the
manufacture, processing, distribution in commerce, use, or storage of Hazardous Materials.
- 2 -
EXHIBIT B
Premises Description
Owned Properties
1. | 2100 Roosevelt Avenue, Springfield, Massachusetts | |
2. | 299 Page Boulevard, Springfield, Massachusetts | |
3. | 19 Aviation Drive, Houlton, Maine | |
4. | 400 North Main Street, Rochester, New Hampshire |
Leased Properties
1.
|
7377 E. Doubletree Ranch Road | |
Suite 200 | ||
Scottsdale, Arizona | ||
2.
|
277 Mallory Station Road | |
Suite 102, 112 and 113 | ||
Franklin, Tennessee | ||
3.
|
416 Mary Lindsay Polk Drive | |
Suite 503 and 509 | ||
Franklin, Tennessee | ||
4.
|
1001 North 19th Street | |
Suite 1200 | ||
Arlington, Virginia | ||
Washington, D.C. |
EXHIBIT C
Environmental Reports
1. | Phase I Environmental Site Assessment (ESA) report dated October 15, 2010 prepared by Environmental Compliance Services, Inc. for Smith & Wesson Corp., relating to the real property located at 19 Aviation Drive, Houlton, Maine, a copy of which has been provided to the Administrative Agent. | |
2. | Phase I Environmental Site Assessment (ESA) report dated October 15, 2010 prepared by Environmental Compliance Services, Inc. for Smith & Wesson Corp., relating to the real property located at 2100 Roosevelt Avenue, Springfield, Massachusetts, a copy of which has been provided to the Administrative Agent. | |
3. | Phase I Environmental Site Assessment (ESA) report dated October 15, 2010 prepared by Environmental Compliance Services, Inc. for Smith & Wesson Corp., relating to the real property located at 299 Page Boulevard, Springfield, Massachusetts, a copy of which has been provided to the Administrative Agent. | |
4. | Phase I Environmental Site Assessment (ESA) report dated October 15, 2010 prepared by Environmental Compliance Services, Inc. for O.L. Development, Inc., relating to the real property located at 400 North Main Street, Rochester, New Hampshire, a copy of which has been provided to the Administrative Agent. |
EXHIBIT D
JOINDER TO HAZARDOUS MATERIALS INDEMNITY AGREEMENT
IN WITNESS WHEREOF, the undersigned (the Additional Indemnitor) hereby agrees that
effective from and after the date set forth below, it shall be deemed to be bound by all of the
terms and provisions set forth in that certain Hazardous Materials Indemnity Agreement, dated as of
December 7, 2010 (the Agreement), from SMITH & WESSON HOLDING CORPORATION, a Nevada
corporation, SMITH & WESSON CORP., a Delaware corporation, THOMPSON/CENTER ARMS COMPANY, INC., a
New Hampshire corporation, THOMPSON CENTER HOLDING CORPORATION, a Delaware corporation, UNIVERSAL
SAFETY RESPONSE, INC., a Delaware corporation, FOX RIDGE OUTFITTERS, INC., a New Hampshire
corporation, K.W. THOMPSON TOOL COMPANY, INC., a New Hampshire corporation, O.L. DEVELOPMENT, INC.,
a New Hampshire corporation, BEAR LAKE HOLDINGS, INC., a Delaware corporation, and SMITH & WESSON
DISTRIBUTING, INC., a Delaware corporation (collectively, the Indemnitors) in favor of TD
BANK, N.A., in its capacity as administrative agent (together with any successor collateral agent
hereunder, Administrative Agent), for itself and the other Secured Parties (as defined in
the Credit Agreement, as defined below), with the same force and effect as if the undersigned were
an Indemnitor under the Agreement, and, without limiting the generality of the foregoing, the
undersigned (a) hereby represents and warrants to the Lender that each of the representations and
warranties made by the Indemnitors with respect to the Indemnitors and the Premises are true and
correct with respect to the undersigned and with respect to all properties now or hereafter owned,
leased, occupied or operated by the undersigned (the Additional Premises), (b) the
undersigned hereby covenants and agrees with the Administrative Agent and the other Secured Parties
that the undersigned shall perform and comply with all covenants and agreements made by the
Indemnitors under the Agreement, and (c) the undersigned hereby agrees to protect, defend,
indemnify and hold harmless the Indemnitees from and against all Costs which at any time may be
asserted against or imposed upon the Additional Premises or the undersigned or the Indemnitees,
arising out of or in connection with (i) Requirements of Environmental Law; (ii) Environmental
Claims; (iii) the failure of the undersigned to obtain, maintain, or comply with any Environmental
Permit; and/or (iv) the presence, existence or threat of release of Hazardous Materials at, on,
about, under, within or in connection with any of the Additional Premises. All capitalized terms
used but not otherwise defined herein shall have the respective meanings ascribed to such terms in
the Agreement. This signature page shall be deemed a counterpart signature page to the Agreement
and the undersigned hereby authorizes the Administrative Agent to attach this signature page
thereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or
electronic mail (including, without limitation, PDF) shall be effective as delivery of a manually
executed counterpart of this Agreement.
Executed under seal this
day of
,
.
ADDITIONAL INDEMNITOR: | ||||
By: | ||||
Name: | ||||
Title: | ||||