EXHIBIT 10.5
ENVIRONMENTAL AGREEMENT
THIS AGREEMENT is made this 14th day of November, 1996, by and
between ARMOR HOLDINGS, INC. (the "Borrower"), and XXXXXXX BANK, N.A. (the
"Bank").
RECITALS
The parties wish to confirm certain understandings concerning
premises (the "Premises") now or hereafter owned, operated, occupied or
otherwise used by the Borrower or any of its Subsidiaries. For purposes
hereof: (i) the term "Premises" includes all land, improvements and other real
property interests now or hereafter owned, operated, occupied or otherwise
used by the Borrower or any of its Subsidiaries; and (ii) the term
"Subsidiaries" shall mean and include any partnership, corporation or other
entity if the Borrower directly or indirectly owns or controls a majority of
the equity or voting interests in such partnership, corporation or entity.
NOW, THEREFORE, for good and valuable consideration, the parties
agree as follows:
I. The Borrower warrants and represents to the Bank:
A. That, except as set forth on Schedule 1 attached hereto,
to its best knowledge neither it nor any of its Subsidiaries has used
any Premises as a facility for the storage, treatment or disposal of
any "Hazardous Substances," as that term is hereinafter defined,
except such materials as are used or stored in accordance with all
applicable laws in the ordinary course of business of the Borrower or
any such Subsidiary;
B. That the Premises are now and at all times hereafter will
continue to be in material compliance with all federal, state and
local "Environmental Laws" (as that term is defined hereinafter),
including but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 USC
ss. 9601, et seq., the Superfund Amendments and Reauthorization Act
of 1986 ("XXXX"), Public Law 99-499, 100 Stat. 1613, the Resource
Conservation and Recovery Act ("RCRA"), 42 USC ss. 6901, et seq., the
Florida Resource Recovery and Management Act, Section 403.702, et
seq., Florida Statutes, the Pollutant Spill Prevention and Control
Act, Section 376.011-376.17 and 376.19-376.21 Florida Statutes, as
the same may be amended from time to time, and all ordinances,
regulations, codes, plans, orders, and decrees now existing or in the
future enacted, promulgated, adopted, entered or issued, both within
and outside present contemplation of the Borrower and the Bank;
C. That: (i) as of the date hereof, there are no
hazardous or toxic materials, substances, wastes or other
environmentally regulated substances (including solids or gaseous
products and any materials containing asbestos), the presence of
which is limited, regulated or prohibited by any state, federal or
local governmental authority or agency having jurisdiction over the
Premises, or which are otherwise known to pose a hazard to health or
safety of occupants of the Premises, located on, in or under the
Premises or used in connection therewith; or (ii) the Borrower has
fully disclosed to the Bank in writing the existence, extent and
nature of any such hazardous or toxic material waste or other
environmentally regulated substance, which the Borrower or any
Subsidiary is legally authorized and empowered to maintain on, in or
under the Premises or use in connection therewith, and the Borrower
and its Subsidiaries have obtained and will maintain all material
licenses, permits and approvals required with respect thereto, and
are in material compliance with all of the terms, conditions and
requirements of such licenses, permits and approvals;
D. That the Borrower shall notify the Bank of any change of
which it is aware in the nature or extent of any hazardous or toxic
materials, substances or wastes maintained on, in or under the
Premises or used in connection therewith, and will transmit to the
Bank copies of any citations, orders, notices or other material
governmental or other communication received with respect to any
other hazardous materials, substances, wastes or other
environmentally regulated substances affecting the Premises;
E. That the Borrower is not aware of any past, present or
future events, conditions, circumstances, activities, practices,
incidents, actions or plans which may interfere with or prevent
compliance or continued compliance with Environmental Laws or any
ordinance, regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or
approved thereunder, or which may give rise to any common law or
legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study or investigation, based on
or related to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling, or the emission,
discharge, release or threatened release into the environment, of any
Hazardous Substance; and
F. That there is no civil, criminal or administrative
action, suit, demand, claim, hearing, notice or demand letter, notice
of violation, investigation, or proceeding pending or, to the best
knowledge of the Borrower, threatened against it, any Subsidiary or
the Premises, relating in any way to any material Environmental Laws
or any material regulation, code,
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plan, order, decree, judgment, injunction, notice or demand letter
issued, entered, promulgated or approved thereunder.
II. The Borrower agrees to indemnify, reimburse, defend and hold
harmless the Bank, its officers, directors, employees, successors and assigns,
from and against all demands, claims, civil or criminal actions or causes of
action, liens, assessments, civil or criminal penalties or fines, losses,
damages, liabilities, obligations, costs, disbursements, expenses or fees of
any kind or of any nature (including, without limitation, reasonable cleanup
costs, attorneys', consultants' or experts' fees and disbursements and costs
of litigation at trial and appellate levels) which may at any time be imposed
upon, incurred by or asserted or awarded against, the Bank directly or
indirectly: (a) resulting from any acts or activities of the Borrower or any
Subsidiary, any of their respective agents, employees or contractors, at, on
or about the Premises which contaminate air, soils, surface waters or
groundwaters over, on or under the property; (b) arising from or out of any
Hazardous Substance on, in or under the Premises; (c) arising pursuant to or
in connection with the application of any Environmental Law to the acts or
omissions of the Borrower or any of its Subsidiaries, or any other person, and
any environmental damage alleged to have been caused, in whole or in part, by
the transportation, treatment, storage, or disposal of any Hazardous
Substance; or (d) arising from or in relation to the presence, whether past,
present or future, of any Hazardous Substances on the Premises. Without
limiting the foregoing, this indemnification provision specifically protects
the Bank against any claim or action from activities described in (a), (b),
(c) or (d) above, based in whole or in part upon any environmental statute,
rule, regulation or policy, including but not limited to Chapters 403 and 376,
Florida Statutes, the Florida Administrative Code, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, ("CERCLA") 42
USC ss. 9601, et seq., as amended, the Resource Conservation and Recovery Act,
42 USC ss. 6901, et seq., and other laws, whether now in existence or enacted
in the future. The indemnification obligation hereunder shall be one of strict
liability and shall be enforceable without regard to any knowledge of the Bank
with respect to any act or omission or condition or event which is the basis
of the claim under such indemnification obligation. The obligations under this
section shall not be limited to any extent by the term of any Note or other
obligations of the Borrower, and such obligations hereunder shall continue,
survive and remain in full force and effect notwithstanding payment in full or
other satisfaction or release of such Note (and such other obligations).
III. The Bank shall have the right, in its reasonable discretion, to
require the Borrower to periodically (but not more frequently than annually
unless an environmental complaint is then outstanding) perform (at the
Borrower's expense) an environmental audit and, if deemed necessary by the
Bank, an environmental risk assessment, each of which must be satisfactory to
the Bank in its
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reasonable discretion, of the Premises, hazardous waste management practices or
hazardous waste disposal sites used by the Borrower or any of its Subsidiaries.
Such audit or risk assessment must be performed by an environmental consultant
reasonably satisfactory to the Bank. If the Borrower fails to perform such
environmental audit or risk assessment within 30 days of the Bank's written
request, the Bank shall have the right but not the obligation to retain an
environmental consultant to perform such environmental audit or risk assessment
at the Borrower's expense.
IV. As used herein, "Environmental Law" means any federal, state, or
local statutory or common law relating to pollution or protection of the
environment, including without limitation, any common law of nuisance or
trespass, and any law or regulation relating to emissions, discharges,
releases or threatened releases of Hazardous Substances into the environment
(including without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Substances. As used herein, "Hazardous Substance" means
any substance or material: (a) identified in Section 101(14) of CERCLA, 42 USC
ss. 9601(14), as the same may be amended from time to time; or (b) determined
to be toxic, a pollutant or contaminant, under federal, state or local
statute, law, ordinance, rule or regulation or judicial or administrative
order or decision, as same may be amended from time to time, including but not
limited to petroleum and petroleum products as defined in Section 376.301(13)
and (14), Florida Statutes, as same may be amended from time to time.
V. This Agreement shall continue in effect until expressly released
by the Bank in writing. This Agreement shall not be modified except by written
instrument signed by each of the parties hereto. This Agreement shall be
governed by Florida law, and it shall be binding upon the parties' respective
successors and assigns.
IN WITNESS WHEREOF, the parties have executed this instrument as of
the day and year first above written.
ARMOR HOLDINGS, INC.
By:_______________________________
Its: __________________________
XXXXXXX BANK, N.A.
By:_______________________________
Its:___________________________
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