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EXHIBIT 10.11
INDEMNITY AGREEMENT REGARDING HAZARDOUS MATERIALS
THIS INDEMNITY AGREEMENT (this "Agreement"), is made as of this _____
day of February, 1998, by SPALDING & EVENFLO COMPANIES, INC. ("Borrower") for
the benefit of GOVERNMENT LAND BANK d/b/a Massachusetts Development Finance
Agency ("Lender").
W I T N E S S E T H:
WHEREAS, Borrower is the owner of certain real property located on
Meadow Street, Chicopee, Hampden County Massachusetts, as shown on a survey
entitled "Plan of Land in the City of Chicopee, Massachusetts , Hampden County -
Prepared for Spalding & Evenflo Companies, Inc." by Durkee, White, Towne &
Xxxxxxxxxxx, dated January 19, 1998, more particularly described in Exhibit A
attached hereto and incorporated herein by this reference (the "Land"), (the
Land, together with all improvements now or hereafter located in, on or under
the Land, collectively, the "Property");
WHEREAS, Lender has made and Borrower has accepted a loan in the amount
of $6,500,000.00 (the "Loan"), which Loan is evidenced by that certain Note of
even date from Borrower to Lender in the face amount of $6,500,000.00 (the
"Note") and secured by, among other things, that certain Ground Lease of even
date from Borrower to Lender conveying a leasehold interest in a portion of the
Property and to be recorded in the public records of the aforesaid county
(together with all amendments, modifications, consolidations, increases,
supplements and extensions thereof, the "Ground Lease");
WHEREAS, as a condition to making the Loan, Lender requires Borrower to
provide certain indemnities concerning Hazardous Materials (as hereinafter
defined) presently upon, in or under the Property, or hereafter placed or
otherwise located thereon or therein;
WHEREAS, to induce Lender to make the Loan to Borrower, Borrower has
agreed to provide this Agreement for Lender's benefit.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
($10.00) Dollars and other good and valuable consideration, the receipt and
sufficiency of which are hereby ac knowledged, Lender, by its acceptance of
delivery hereof, and Borrower hereby agrees as follows:
1. Definitions. The following definitions shall apply for
purposes of this Agreement:
(a) "Environmental Law" shall mean any federal, state or local
statute, regulation or ordinance or any judicial or administrative
decree or decision, whether now existing or hereinafter enacted,
promulgated or issued, with respect to any Hazardous Materials,
drinking water, groundwater, wetlands, landfills, open dumps, storage
tanks, underground storage tanks, solid waste, waste water, storm water
run-off, waste emissions or xxxxx. Without limiting the generality of
the foregoing, the term shall encompass each of the following statutes,
and regulations promulgated thereunder, and amendments and successors
to such statutes and regulations, as may be enacted and promulgated
from time to time: (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (codified in scattered sections
of 26 U.S.C.; 33 U.S.C.; 42 U.S.C. and 42 U.S.C. ss.9601 et seq.); (ii)
the Resource Conservation and Recovery Act of 1976 (42 U.S.C. ss.6901
et seq.); (iii) the Toxic Substances Control Act (15 U.S.C. ss.2601 et
seq.); (iv) the Clean Water Act (33 U.S.C. ss.1251 et seq.); (v) the
Clean Air Act (42 U.S.C. ss.7401 et seq.); (vi) the Safe Drinking Water
Act (21 U.S.C. ss.349; 42 U.S.C. ss.201 and ss.300f et seq.); (vii) the
National Environmental Policy Act of 1969 (42 U.S.C. ss.4321); (viii)
the Superfund Amendment and Reauthorization Act of 1986 (codified in
scattered sections of 00
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X.X.X., 00 X.X.X., 00 U.S.C. and 42 U.S.C.); (ix) the Massachusetts Oil
and Hazardous Material Release Prevention and Response Act, M.G.L. c.
21E; and (x) the Massachusetts Hazardous Waste Management Act, M.G.L.
c. 21C.
(b) "Hazardous Materials" shall mean each and every element,
compound, chemical mixture, contaminant, pollutant, material, waste or
other substance which is defined, determined or identified as hazardous
or toxic under any Environmental Law. Without limiting the generality
of the foregoing, the term shall mean and include:
(i) "hazardous substances" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Superfund Amendment and Reauthorization Act of 1986, or Title III of
the Superfund Amendment and Reauthorization Act, each as amended, and
regulations promulgated thereunder;
(ii) "hazardous waste" as defined in the Resource
Conservation and Recovery Act of 1976, as amended, and regulations
promulgated thereunder;
(iii) "hazardous materials" as defined in the Hazardous
Materials Transportation Act, as amended, and regulations promulgated
thereunder;
(iv) "chemical substance or mixture" as defined in the Toxic
Substances Control Act, as amended, and regulations promulgated
thereunder;
(v) "hazardous material" and "oil" as defined in the
Massachusetts Oil and Hazardous Material Release Prevention and
Response Act, as amended, and regulations promulgated thereunder; and
(vi) "hazardous waste" as defined in the Massachusetts
Hazardous Waste Management Act, as amended, and regulations promulgated
thereunder.
(c) "Indemnified Parties" shall mean Lender and affiliates,
each of their respective directors, officers, employees and agents, and
the successors and assigns of any of them; and "Indemnified Party"
shall mean any one of the Indemnified Parties.
(d) "Release" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, storing, escaping,
leaching, dumping, or discarding, burying, abandoning, or disposing
into the environment.
(e) "Threat of Release" shall mean a substantial likelihood
of a Release which requires action to prevent or mitigate damage to the
environment which may result from such Release.
2. Indemnity Agreement. Borrower covenants and agrees, at its sole cost
and expense, to indemnify, defend (at trial and appellate levels and with
attorneys, consultants and experts acceptable to Lender) and hold each
Indemnified Party harmless against and from any and all liens, damages, losses,
liabilities, obligations, settlement payments, penalties, assessments,
citations, directives, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind or of any nature
whatsoever (including, without limitation, attorneys', consultants' and experts'
fees and disbursements incurred in investigating, defending against, settling or
prosecuting any claim, litigation or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against such Indemnified Party
or the Property and arising directly or indirectly from or out of: (A) the
Release or Threat of Release of any Hazardous Materials on, in, under or
affecting all or any portion of the Property or any surrounding areas,
regardless of whether or not caused by or within the control of
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Borrower; (B) the violation of any Environmental Laws relating to or affecting
the Property or the Borrower, whether or not caused by or within the control of
Borrower; (C) the failure of Borrower to comply fully with the terms and
conditions of this Agreement; (D) the violation of any Environmental Laws in
connection with other real property of Borrower which gives or may give rise to
any rights whatsoever in any party with respect to the Property by virtue of any
Environmental Laws; or (E) the enforcement of this Agreement, including, without
limitation, (i) the costs of assessment, containment and/or removal of any and
all Hazardous Materials from all or any portion of the Property or any
surrounding areas, (ii) the costs of any actions taken in response to a Release
or Threat of Release of any Hazardous Materials on, in, under or affecting all
or any portion of the Property or any surrounding areas to prevent or minimize
such Release or Threat of Release so that it does not migrate or otherwise cause
or threaten danger to present or future public health, safety, welfare or the
environment, and (iii) costs incurred to comply with the Environmental Laws in
connection with all or any portion of the Property or any surrounding areas.
Notwithstanding the foregoing, Borrower shall not be obligated to indemnify and
hold Lender harmless from claims, liabilities or losses arising solely out of
the gross negligence or wilful misconduct of Lender. Lender's and the other
Indemnified Parties' rights under this Agreement shall be in addition to all
rights of Lender under the Ground Lease, the Note, and under any other documents
or instruments evidencing, securing or relating to the Loan (the Ground Lease,
the Note and such other documents or instruments, as amended or modified from
time to time, being herein referred to as the "Loan Documents"), and payments by
Borrower under this Agreement shall not reduce Borrower's obligations and
liabilities under any of the Loan Documents.
3. Survival.
(a) The indemnity set forth above in Paragraph 2 shall survive
the repayment of the Loan and any exercise by Lender of any remedies under the
Ground Lease, or any other remedy in the nature of foreclosure, and shall not
merge with any deed given by Borrower to Lender in lieu of foreclosure or any
deed under a power of sale.
(b) It is agreed and intended by Borrower and Lender that the
indemnity set forth above in Paragraph 2 may be assigned or otherwise
transferred by Lender to its successors and assigns and to any subsequent
purchaser of all or any portion of the Property by, through or under Lender,
without notice to Borrower and without any further consent of Borrower. To the
extent consent of any such assignment or transfer is required by law, advance
consent to any such assignment or transfer is hereby given by Borrower in order
to maximize the extent and effect of the indemnity given hereby.
4. No Waiver. The liabilities of Borrower under this Agreement
shall in no way be limited or impaired by, and Borrower hereby consents to and
agrees to be bound by, any amendment or modification of the provisions of the
Loan Documents to or with Lender by Borrower or any person who succeeds Borrower
as owner of the Property. In addition, notwithstanding any terms of any of the
Loan Documents to the contrary, the liability of Borrower under this Agreement
shall in no way be limited or impaired by: (i) any extensions of time for
performance required by any of the Loan Documents; (ii) any sale, assignment or
exercise of other remedies available under the Note or the Ground Lease or any
sale or transfer of all or part of Lender's interest in the Property; (iii) any
exculpatory provision in any of the Loan Documents limiting Lender's recourse to
property encumbered by the Ground Lease or to any other security, or limiting
Lender's rights to a deficiency judgment against Borrower; (iv) the accuracy or
inaccuracy of the representations and warranties made by Borrower under any of
the Loan Documents; (v) the release of Borrower or any other person from
performance or observance of any of the agreements, covenants, terms or
conditions contained in the Loan Documents by operation of law, Lender's
voluntary act, or otherwise; (vi) the release or substitution, in whole or in
part, of any security for the Note; or (vii) Lender's failure to record the
Ground Lease or file any UCC-1 financing statements (or Lender's improper
recording or filing of any thereof) or to otherwise perfect, protect, secure or
insure any security interest or lien given as security for the Note; and, in any
such case, whether with or without notice to Borrower and with or without
consideration.
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5. Waiver by Borrower . Borrower waives any right or claim of right to
cause a marshalling of Borrower's assets or to cause Lender to proceed against
any of the security for the Loan before proceeding under this Agreement against
Borrower or to proceed against Borrower in any particular order; Borrower agrees
that any payments required to be made hereunder shall become due on demand;
Borrower expressly waives and relinquish all rights and remedies (including any
rights of subrogation) accorded by applicable law to indemnitors or guarantors.
6. Delay. No delay on Lender's part in exercising any right, power or
privilege under any of the Loan Documents shall operate as a waiver of any
privilege, power or right hereunder.
7. Releases. Any one or more of Borrower or any other party liable upon
or in respect of this Agreement or the Loan may be released without affecting
the liability of any party not so released.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. Said counterparts shall
constitute but one and the same instrument and shall be binding upon each of the
undersigned individually as fully and completely as if all had signed but one
instrument so that the joint and several liability of each of the undersigned
hereunder shall be unaffected by the failure of any of the undersigned to
execute any or all of the said counterparts.
9. Notices. Each notice, demand, election or request provided for or
permitted to be given pursuant to this Agreement (hereinafter in this paragraph
9 referred to as "Notice") must be in writing and shall be deemed to have been
sufficiently given or served by personal delivery or by sending same by
overnight courier or by depositing same in the United States Mail, postpaid and
registered or certified, return receipt requested, and addressed as follows:
If to Lender:
Government Land Bank
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
with a copy to:
Xxxx X. Xxxxxxxx
Bartlett, Hackett, Xxxxxxxx, Gentilli, Liston, Xxxxx &
Xxxxxx, P.C.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to Borrower:
Spalding & Evenflo Companies, Inc.
000 X. Xxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Attn: Chief Financial Officer
With a copy to the attention of its general counsel at the same
address.
Each Notice shall be effective upon being personally delivered or upon being
sent by overnight courier or upon being deposited in the United States Mail as
aforesaid. The time period in which a response to such Notice must be given or
any action taken with respect thereto (if any), however, shall commence to run
from the date of receipt if personally delivered or sent by overnight courier
or, if so deposited in the United States Mail, the earlier of three (3) business
days following such deposit and the date of receipt as disclosed on the return
receipt. Rejection or other refusal to accept or the inability to deliver
because of
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changed address for which no Notice was given shall be deemed to be receipt of
the Notice sent. By giving at least thirty (30) days' prior Notice thereof,
Lender and Borrower shall have the right from time to time and at any time
during the term of this Agreement to change their respective addresses and each
shall have the right to specify as its address any other address within The
United State of America.
10. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, by telephone or by any other means except by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
11. Binding Effect. Except as herein provided, this Agreement shall be
binding upon Borrower and successors and assigns, and shall inure to the benefit
of Lender, the other Indemnified Parties, and their respective successors and
assigns. Notwithstanding the foregoing, Borrower , without the prior written
consent of Lender in each instance, may not (except as otherwise specifically
provided for in the Loan Documents)assign, transfer or set over to another, in
whole or in part, all or any part of its or their benefits, rights, duties and
obligations hereunder, including, but not limited to, performance of and
compliance with conditions hereof.
12. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE
GOVERNED BY, AND INTERPRETED AND DETERMINED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO
PERSONAL JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS OVER ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND (B) WAIVE ANY
AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY STATE (I) TO THE RIGHT, IF ANY, TO
TRIAL BY JURY, OR (II) TO OBJECT TO JURISDICTION WITHIN THE COMMONWEALTH OF
MASSACHUSETTS OR VENUE IN ANY PARTICULAR FORUM WITHIN THE COMMONWEALTH OF
MASSACHUSETTS. BORROWER AGREES THAT, IN ADDITION TO ANY METHODS OF SERVICE OF
PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO BORROWER AT THE ADDRESS SET FORTH IN PARAGRAPH 9
ABOVE, AND SERVICE TO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL
BE SO MAILED. NOTHING CONTAINED HEREIN, HOWEVER, SHALL PREVENT LENDER FROM
BRINGING ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST ANY
SECURITY AND AGAINST BORROWER PERSONALLY, AND AGAINST ANY PROPERTY OF BORROWER,
WITHIN ANY OTHER STATE. INITIATING SUCH SUIT, ACTION OR PROCEEDING OR TAKING
SUCH ACTION IN ANY STATE SHALL IN NO EVENT CONSTITUTE A WAIVER OF THE AGREEMENT
CONTAINED HEREIN THAT THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS SHALL GOVERN
THE RIGHTS AND OBLIGATIONS OF BORROWER AND LENDER HEREUNDER OR OF THE SUBMISSION
HEREIN MADE BY BORROWER TO PERSONAL JURISDICTION WITHIN THE COMMONWEALTH OF
MASSACHUSETTS.
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IN WITNESS WHEREOF, Borrower have caused this Agreement to be executed
under seal as of the day and year first written above.
BORROWER:
SPALDING & EVENFLO COMPANIES, INC.
By:
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