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Exhibit 2.6
ENVIRONMENTAL AGREEMENT
THIS ENVIRONMENTAL AGREEMENT, dated as of May 7, 1997, by and between
Varian Associates, Inc., a Delaware corporation ("Seller"), and Novellus
Systems, Inc., a California corporation ("Buyer"), shall be effective as of the
Closing Date (as defined in the Asset Purchase Agreement ("Asset Purchase
Agreement"), dated as May 7, 1997, by and between Seller and Buyer) (the
"Effective Date"). If the Asset Purchase Agreement shall terminate pursuant to
Section 12 thereof, this Agreement shall terminate concurrently with the
termination of the Asset Purchase Agreement.
RECITALS
A. In accordance with the terms and conditions of the Assignment
Agreement dated as of the Closing Date, by and between Seller and Buyer, Buyer
will be the assignee of Seller's leasehold interest in the real property
commonly referred to as Xxxx 0 xxx Xxxx 0 xx Xxxx Xxxx, Xxxxxxxxxx
(collectively, the "Former Seller Properties").
B. Seller is willing to be responsible for certain Environmental Claims
(as defined below) relating to the Former Seller Properties. The parties
recognize that their mutual cooperation is necessary to accomplish the Seller
Response Work (defined below) to be performed at the Former Seller Properties.
Accordingly, under Sections 26.2 and 26.3 of the Asset Purchase Agreement, the
parties agreed to execute and deliver to each other, among other agreements,
this Environmental Agreement.
TERMS OF THE ENVIRONMENTAL AGREEMENT
In consideration of the Recitals stated above and the mutual agreement
and consideration set out below and in the Asset Purchase Agreement, the parties
agree as follows;
ARTICLE I
DEFINITIONS
1. DEFINITIONS. Each of the capitalized defined terms in this Environmental
Agreement shall have the following meanings or, if undefined in this
Environmental Agreement, the meanings assigned to such terms in the Asset
Purchase Agreement.
"Action" means any claim, action, suit, audit, assessment or
arbitration, or any proceeding or investigation, by or before any Governmental
Authority.
"Environmental Claims" means any and all Actions, claims, demands,
demand letters, liens, notices of non-compliance or violation, consent orders or
consent agreements (collectively, "Claims") including (i) any and all Claims by
Governmental Authorities for enforcement, cleanup, removal, treatment, response,
remedial or other actions or damages pursuant to any applicable Environmental
Laws, and (ii) any and all Claims by any third person seeking damages,
contribution,
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indemnification, cost recovery, compensation or injunctive relief resulting from
or arising from alleged injury or threat of injury to public health or safety or
the environment.
"Environmental Laws" means all laws, regulations, ordinances, codes,
policies, Governmental Orders and consent decrees, and any judicial and
administrative interpretations thereof, of Governmental Authorities, relating to
pollution or protection of the environment, natural resources and public health
and safety, including those relating to emissions, discharges, Releases or
threatened Releases of Hazardous Material into the environment (including
ambient air, surface water, groundwater or land), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Material. When used with respect to Buyer
Indemnified Environmental Claims, Environmental Laws shall refer to
Environmental Laws in effect as of the Effective Date or enacted or amended
thereafter. Except as expressly provided elsewhere in this Agreement, when used
with respect to Seller Indemnified Environmental Claims, Environmental Laws
shall refer only to those Environmental Laws as amended and in effect on the
Effective Date.
"Environmental Permits" means a permits, approvals, identification
numbers, licenses and other authorizations required under any applicable
Environmental Laws.
"Governmental Authority" means any federal or national, state,
municipal or local government, governmental authority, regulatory or
administrative agency, governmental commission, department, board, bureau,
agency or instrumentality, political subdivision, court, tribunal, official
arbitrator or arbitral body, in each case whether domestic or foreign.
"Governmental Order" means any order, writ, rule, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"Release" means any release (as defined under any Environmental Laws)
of any Hazardous Material.
"Seller Response Work" shall refer to all response actions (as defined
under any Environmental Laws) and similar activities to be performed by Seller
at any of the Former Seller Properties that (a) is required of Seller as part of
any Seller Indemnified Environmental Claim or (b) that Seller otherwise elects
to perform.
ARTICLE II
INDEMNIFICATIONS
2. INDEMNIFICATION BY SELLER. Except as otherwise limited by this
Article II, Seller shall indemnify, defend, protect and hold harmless Buyer (and
Buyers Subsidiaries, and their respective officers, directors, shareholders,
employees and agents) from and against any and all losses, costs, expenses.
liabilities, obligations, claims, demands, causes of action, suits, settlements
and judgments of every nature, including the costs and expenses associated
therewith and reasonable attorneys', consultants' and witness fees incurred
("Buyer's Damages") resulting from any Environmental Claims arising from (a) any
violation, or any alleged violation, before the Effective Date, of any
Environmental Law, Environmental Permit or Governmental Order as a result of
Seller's
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activities before the Effective Date at the Former Seller Properties, (b) the
presence, Release or threatened Release before the Effective Date, of any
Hazardous Material in the soils, groundwater, surface water or air on, under,
about or emanating from any of the Former Seller Properties, including to the
extent that such Hazardous Material remains and/or migrates (except to the
extent indemnified by Buyer in Section 3) after the Effective Date, (c) any
disposal, transportation, or arranging for disposal prior to the Effective Date
of Hazardous Material generated by Seller prior to the Effective Date (any such
Environmental Claim referred to in this Section 2 is referred to elsewhere
herein as "Seller Indemnified Environmental Claims").
3. INDEMNIFICATION BY BUYER. Except as otherwise limited by this
Article II, Buyer shall indemnify, defend, protect and hold harmless Seller (and
Seller's Subsidiaries, and their respective officers, directors, shareholders,
employees and agents) from and against any and all losses, costs, expenses,
liabilities, obligations, claims, demands, causes of action, suits, settlements
and judgments of every nature, including the costs and expenses associated
therewith and reasonable attorneys', consultants' and witness fees incurred
("Seller's Damages") resulting from or related to Environmental Claims arising
from (a) any violation or alleged violation, existing after the Effective Date,
of any Environmental Law, Environmental Permit or Governmental Order as a result
of any activities after the Effective Date at the Former Seller Properties,
except to the extent caused by Seller's acts after the Effective Date, (b) any
Release of Hazardous Materials, after the Effective Date, to the soils,
groundwater, surface water or air on, under, about or emanating from any of the
Former Seller Properties, except to the extent caused by Seller's acts after the
Effective Date, (c) any disposal, transportation, or arranging for disposal
after the Effective Date by Buyer of Hazardous Material generated at the Former
Seller Properties, except to the extent caused by Seller's acts after the
Effective Date, and (d) any movement after the Effective Date of any Hazardous
Material present before the Effective Date or the exacerbation of any existing
environmental condition, but only to the extent that either results from Buyer's
or Buyer's agent's active negligent conduct (any such Environmental Claim
referred to in this Section 3 is referred to elsewhere herein as a "Buyer
Indemnified Environmental Claims").
4. LIMITATIONS ON INDEMNIFICATION. (a) Notwithstanding any other
provision of this Agreement, as between Buyer (and Buyer's Subsidiaries, and
their respective officers, directors, shareholders, employees and agents) and
Seller, Seller's' obligations to Buyer (and Buyer's Subsidiaries, and their
respective officers, directors, shareholders, employees and agents) with respect
to Seller Indemnified Environmental Claims, whether at law, in equity, pursuant
to this Agreement or otherwise, shall not include the following matters, for
which Buyer hereby forever relieves, releases and discharges the Seller (and
Seller's Subsidiaries, and their respective officers, directors, shareholders,
employees and agents) and their successors and assigns from any and all
liabilities, actions, Buyer's Damages, future claims and causes of action
arising therefrom or related thereto: (i) any liability for or arising from
asbestos, radon, lead paint or other building or construction materials that are
lawfully present, or any lawfully used or stored Hazardous Material in, inside
or on the improvements (including structures or equipment) located on the Former
Seller Properties (except that this subsection shall not apply to any personal
injury action relating to exposure to such substances prior to Effective Date);
(ii) any liability for diminution in property value of any of the Former Seller
Properties (including lost profits and lost rent) caused by the presence of
Hazardous Material in the soils, groundwater, surface water or air on, under,
about or emanating from any of the properties owned, leased, used, possessed or
operated by Seller or any of its subsidiaries; (iii) any liability for
consequential damages (including lost profits and lost rent) relating to the
presence of
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Hazardous Material in the soils, groundwater, or surface water on, under, about
or emanating from any of the Former Seller Properties; or (iv) the performance
of any Response Action (as defined in CERCLA, 42 U.S.C. Section 9601(25)),
except as required by this Environmental Agreement or by any Governmental
Orders.
(b) Notwithstanding any other provision of this Agreement, as
between Seller (and Seller's Subsidiaries, and their respective officers,
directors, shareholders, employees and agents) and Buyer, Buyer's obligations to
Seller (and Seller's Subsidiaries, and their respective officers, directors,
shareholders, employees and agents) with respect to Buyer Indemnified
Environmental Claims, whether at law, in equity, pursuant to this Agreement or
otherwise, shall not include the following matters, for which Seller hereby
forever relieves, releases and discharges the Buyer (and Buyer's Subsidiaries,
and their respective officers, directors, shareholders, employees and agents)
and their successors and assigns from any and all liabilities, actions, Seller's
Damages, future claims and causes of action arising therefrom or related
thereto: any liability for consequential damages (including lost profits and
lost rent) relating to the presence of Hazardous Material in the soils,
groundwater, or surface water on, under, about or emanating from any of the
Former Seller Properties, which Hazardous Materials were released after the
Effective Date.
ARTICLE III
EASEMENT GRANT AND ACCESS
5. EASEMENT GRANT. Subject to all the terms of this Agreement, Buyer
hereby grants a nonexclusive easement to the agents, employees, consultants,
contractors, and subcontractors of Seller who are reasonably necessary to carry
out Seller Response Work to enter upon and use the Former Seller Properties to
carry out Seller Response Work. This nonexclusive easement will remain in effect
for so long as any Seller Response Work remains to be performed. In the event
that the parties believe that such work has been completed but the need or
desire by Seller to perform additional Seller Response Work arises at a later
date, the nonexclusive easement shall automatically revive and be in full force
and effect within one week after notice is received by Buyer with respect to
such matter.
6. ACCESS. (a) Subject to the terms of this Agreement, Seller shall
provide Buyer with at least forty-eight (48) hours notice of any entry of Seller
onto the Former Seller Properties, unless shorter notice is required to comply
with applicable Environmental Laws or due to an emergency. Buyer shall provide
mutually agreeable, convenient and appropriate locations, and reasonable access
to such locations, for Seller and its agents, consultants, contractors and
subcontractors to place, maintain and store items necessary and appropriate for
Seller Response Work under this Environmental Agreement. Entry shall be
permitted during normal business hours, or at other times as is mutually
agreeable. The parties agree that Seller shall have the right to use the
locations presently used for installations made as part of any Seller Response
Work and/or locations of Seller Response Work indicated on all work plans
approved or not otherwise expressly objected to by Buyer. With respect to such
locations, Buyer shall have the right to require Seller to relocate any items
located there, provided that such relocation (unless otherwise required of
Seller by applicable law) shall be (i) subject to prior approval by any
Governmental Authority having jurisdiction over such matters (the "Relevant
Agency"), to the extent such approval is required (such approval to be sought by
Seller following reasonable notice by Buyer to Seller) and (ii) at Buyer's
expense (including the costs of seeking approval by the Relevant Agency).
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(b) In the event that Buyer reasonably determines that a portion of
Seller's performance of the Seller Response Work is creating an imminent and
substantial endangerment to human health or the environment, or is likely to
cause substantial interference with Buyer's operations, Buyer shall have the
right to suspend immediately such portion of Seller Response Work under this
Environmental Agreement. In the event that Seller requests that it be allowed to
resume such work and Buyer does not agree within three (3) days, Buyer shall be
required to go to dispute resolution as described in Section 13.8 of the Asset
Purchase Agreement in order to continue the suspension of such work. Buyer shall
proceed with all diligence to obtain an order continuing the suspension. In the
event such an order is denied or Buyer does not proceed diligently to obtain
such an order, Seller's rights to perform such work under the Environmental
Agreement shall automatically revive. In the event that performance of such work
was not creating an imminent and substantial endangerment to human health or the
environment or is not likely to cause substantial interference with Buyer's
operations, Seller shall have the right to seek through dispute resolution any
and all damages associated with such suspension (subject to any limitations on
such damages in Section 4).
ARTICLE IV
PERFORMANCE OF SELLER RESPONSE WORK
7. SITE COORDINATORS. Buyer and Seller shall each designate an
individual to act as a Site Coordinator. The Site Coordinators shall be
responsible and have authority for coordinating the activities of their
respective companies during any Seller Response Work. Buyer's Site Coordinator
or any other representative of Buyer shall have the right to be present during
any Seller Response Work.
8. DESCRIPTION OF WORK PERMITTED. Seller shall conduct Seller Response
Work hereunder in accordance with various written work plans, except for such
work that is of an emergency nature. Such work shall be deemed to include
routine monitoring, repairs, supply and maintenance of those system that are
specified in the work plans. Seller shall also have the right, subject to the
notice provisions of Section 6, above, to take groundwater samples from, make
groundwater elevation measurements in, and perform other tests in or in
connection with existing xxxxx on the Former Seller Properties from time to time
in its discretion, whether or not such work is covered by a written work plan.
Except as is otherwise required by a Governmental Authority with jurisdiction
over such matters, Buyer shall have the right to prohibit the performance of any
Seller Response Work that is not in accordance with an approved work plan and
that would unreasonably interfere with Buyer's operations. Seller agrees to use
reasonable efforts to schedule the work at a time reasonably convenient to
Buyer.
9. WORK PLAN REVIEW. Seller shall provide a work plan for each portion
of the Seller Response Work to Buyer for Buyer's review as follows: (i) for any
work plan that Seller is required to submit for approval to the Relevant Agency,
such plan shall be provided to Buyer no later than the time such plan is
submitted to the Relevant Agency, and (ii) for work plans that Seller is not
required to submit for approval to any Relevant Agency, such plan shall be
provided to Buyer at least two weeks prior to the performance of the work
provided for in such plan. Buyer shall have the right to review such work plans
and shall approve each such plan unless the location or other physical aspect
(e.g., noise) of the Seller Response Work unreasonably interferes with the
present or future operation of the Business. Buyer's review shall be conducted,
and approval or questions or objections given to Seller, as quickly as possible
so as not to delay any Seller Response Work, but in no event
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shall Buyer's time to comment on and approve a work plan exceed fifteen (15)
working days. Where Buyer fails to reply within fifteen (15) working days, such
work plan shall be deemed approved. Approval of such work plan shall not be
unreasonably witheld by Buyer. Any fine or penalty assessed against Seller for a
delay in Seller Response Work under this Environmental Agreement, of which Buyer
received prior notice, shall be the responsibility of Buyer to the extent caused
by Buyer's unreasonable withholding of its approval of the applicable work plan.
Buyer shall also have the right to comment to Seller with respect to any issue
raised by the work plan for which approval of the Buyer is not required, but
with no obligation on the part of Seller to agree with, or conform such work
plan to, such comments.
10. OTHER INFORMATION. Seller will provide to Buyer copies of (i) all
data (i.e., scientific measurements of chemical concentrations, water levels,
etc.) generated by Seller at the Former Seller Properties for the Seller
Response Work, and (ii) third party claims received by Seller regarding Seller
Response Work, and (iii) government agency violation notices, site audits,
approvals and disapprovals of reports received by Seller for the Seller Response
Work. Seller will provide Buyer with access to copies of reports and
correspondence submitted to or received from Relevant Agencies with respect to
environmental conditions at the Former Seller Properties or the status of the
Seller Response Work. Seller shall have exclusive control of and sole discretion
as to all recordkeeping, notifications, investigations, cleanup, removal,
treatment or remediation related to Seller Indemnified Environmental Claims,
including as to the work plans developed and implemented, the methods employed,
the consultants and other agents retained and the optimal periods for
discharging such responsibility.
11. PROTECTION OF UTILITIES. All work to be performed during any Seller
Response Work shall be performed in a manner to prevent unreasonable disruption
in or interference with any utility service to the operations conducted at the
Former Seller Properties. Seller will undertake all reasonable efforts to locate
underground utilities shown on plans, drawings or specifications requested by
and provided to Seller by Buyer or other information in its possession prior to
the commencement of drilling.
12. MAINTENANCE, RESTORATION OF FORMER SELLER PROPERTIES. Seller, its
employees, agents, consultants, contractors, and subcontractors will adequately
maintain all areas utilized in connection with the work contemplated under this
Environmental Agreement during their period of use and will, thereafter, close,
to the extent required by any Environmental Laws or Environmental Permits, all
xxxxx, tanks and sumps and other similar equipment at the Former Seller
Properties that were installed by Seller during the course of the performance of
Seller Response Work. Seller further agrees that, in Seller's performance of
Seller Response Work, Seller will avoid causing damage to the Former Seller
Properties, and upon completion of the Seller Response Work, Seller will restore
any property that Seller, its employees, agents, consultants, contractors, and
subcontractors have damaged to substantially the same condition as it existed
prior to the commencement of such Seller Response Work.
13. WASTE MATERIALS GENERATED DURING SELLER RESPONSE WORK. Waste
materials required to be removed by Seller from the Former Seller Properties
shall be handled and disposed of by Seller in accordance with all Environmental
Laws. Seller will list itself as the generator of waste on both the hazardous
waste manifest and any waste profile for use by the disposal facility. Seller
will
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also list Buyer and/or other parties as is required by Environmental Laws or
Permits, but shall not do so without providing Buyer with at least one week
notice prior to such listing.
14. SECURITY PROVISIONS. All employees, agents, consultants,
contractors, or subcontractors employed by Seller who perform work on the Former
Seller Properties will comply with Buyer's reasonable security provisions, as
well as reasonable requests of Buyer's security personnel.
15. LIENS. Seller shall keep the Former Seller Properties free from any
and all mechanics, materialmen and other liens arising out of any work or labor
done, services performed or materials used or furnished for or in connection
with any Seller Response Work performed by or on behalf of Seller hereunder. In
the event that Seller does not within thirty (30) business days following the
imposition of any such lien, cause the same to be released of record, Buyer
shall have the right, but not the obligation, to cause the same to be released
by such reasonable means as Buyer shall deem proper, including payment of the
claim giving rise to such lien. All out of pocket costs, and expenses reasonably
incurred by Buyer for such purpose (including attorneys' reasonable fees), shall
be payable by Seller within forty-five (45) days of a demand therefor.
16. POSTING OF NOTICES. Buyer and Seller each shall have the right at
all times, subject to the reasonable approval of Buyer or Seller, as the case
may be, to post and keep posted on the Former Seller Properties any notices
permitted or required by law, or which they shall reasonably deem proper for the
protection of their interests.
17. INSURANCE. (a) Seller shall at all times throughout the performance
of any Seller Response Work maintain commercial general liability insurance
covering such work. Such policy shall include contractual liability insurance
applying to Seller's indemnity obligations under this agreement. Such coverage
shall have a minimum combined single limit of liability of a least Two Million
Dollars ($2,000,000) per occurrence. Seller's general ability policy shall be
endorsed to name Buyer as an additional insured (but only with respect to
Buyer's interest in the Former Seller Properties), shall provide that such
coverage shall be primary and that any insurance maintained by Buyer shall be
excess insurance only and shall not be called upon to contribute to Seller's
insurance policies. Seller waives the right of recovery against the Buyer for
loss or damage within any deductible with respect to any insured claim. Seller
shall deliver to Buyer certificates evidencing the existence and amount of such
insurance. No such policies shall be cancelable or subject to reduction of
coverage limits or other material modification except after thirty (30) days
prior written notice to Buyer.
(b) Buyer shall at all times throughout the period in which this
agreement remains in effect, maintain commercial general liability insurance
covering Buyer's indemnity obligations under this agreement in commercially
reasonable amounts. Buyer's general liability policy shall be endorsed to name
Seller as an additional insured (but only with respect to Seller's interest in
the Former Seller Properties), shall provide that such coverage shall be primary
and that any insurance maintained by Seller shall be excess insurance only and
shall not be called upon to contribute to Buyer's insurance policies. Buyer
waives the right of recovery against Seller for loss or damage within any
deductible with respect to any insured claim. Buyer shall deliver to Seller
certificates evidencing the existence and amount of such insurance. No such
policies shall be cancelable or subject to reduction of coverage limits or other
material modification except after thirty (30) days prior written notice to
Seller.
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ARTICLE V
ADDITIONAL RESPONSIBILITIES OF BUYER
18. ADDITIONAL RESPONSIBILITIES OF BUYER. With respect to any required
or proposed Seller Response Work performed by Seller hereunder, Buyer agrees as
follows:
(a) MAINTENANCE OF FILES, ETC. Buyer shall use commercially
reasonable efforts to maintain all files and documentation at Buyer relating to
(i) Hazardous Materials on or at the Former Seller Properties, (ii) building and
site plans, drawings and specifications, (iii) plans, drawings and
specifications relating to the location and nature of underground utilities, and
(iv) any Seller Response Work conducted by or required of Buyer on the Former
Seller Properties, and shall make available or provide to Seller upon request
copies of such files and documentation, except for privileged documents. Any
copying of documents shall be paid for by Seller at Buyer's internal cost.
(b) RELOCATION OF INSTALLATIONS. In the event that Buyer
determines to improve, repair or modify any of the Former Seller Properties
(including redeveloping any of the Former Seller Properties, remodeling
buildings, razing buildings, erecting new structures or changing land uses) and
Buyer requests that Seller, or Seller otherwise is required as a result of such
determination to, move, modify or replace xxxxx, piping, treatment systems,
monitoring systems and other equipment and instrument previously installed by
Seller in connection with Environmental Claims, Seller shall have exclusive
control of and sole discretion as to the taking of such actions, and shall take
such actions within a reasonable time following approval by appropriate
Governmental Authorities, provided that (i) Buyer shall reimburse Seller for the
reasonable expenses and costs Seller bears as a result of taking such actions,
(ii) Seller will require that the contractor retained by Seller and approved by
Buyer (which approval shall not be unreasonably withheld) to perform such work
agree to be directly liable to Buyer to the extent (and as if) Buyer bad hired
the contractor directly, and (iii) Seller shall not be liable to Buyer for, and
Buyer hereby releases Seller from any liability that Seller otherwise would have
had with respect to the performance of such work, and shall indemnify Seller
from all Buyer's Damages incurred by Buyer in connection with such actions.
(c) BUYER COOPERATION. Buyer agrees to cooperate with and
assist Seller in undertaking any of the activities covered by this Environmental
Agreement so as to accomplish the Seller Response Work in a cost effective and
reasonable manner. Buyer shall provide Seller with reasonable written notice of
any construction at or alterations to the Former Seller Properties which may
adversely affect such Seller Response Work. In the event that Seller requests
Buyer's cooperation or assistance with the implementation of such activities,
such cooperation or assistance shall be at Seller's sole cost and expense,
except with respect to incidental costs and expenses, which shall be borne by
Buyer. Among other things, Buyer will allow Seller, its agents, contractors
and/or subcontractors to move any temporary structures, equipment, refuse or
other materials from surface areas as Seller or its contractors deem reasonably
necessary to implement such activities. Buyer agrees not to damage any
structures or systems installed or implemented as part of Seller's cleanup,
removal, treatment or remediation activities related to Seller Indemnified
Claims. Buyer shall cooperate with governmental agencies to the extent
reasonably necessary for Seller to perform the Seller Response Work.
(d) UTILITY SERVICES. Buyer shall provide reasonable access to
Seller for such utility services (electricity, water, sewer, etc.) as Seller may
reasonably require to conduct Seller
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Response Work. Seller shall pay all reasonable costs for connection to such
utilities, and Buyer may charge Seller its direct cost for such utility services
utilized by Seller (the amount thereof for metered utilities to be determined
either by prior agreement or by metering, or if by neither of the foregoing then
by reasonable allocation).
(e) USE OF PROPERTIES AND GROUNDWATER. Notwithstanding any
other provision of this Agreement to the contrary, Buyer shall:
(i) not extract or use in any way the groundwater at the Former
Seller Properties at any time, except as required by any Governmental Authority
or as allowed by Seller; and
(ii) require any successors or assigns to Buyer's interest in
the Former Seller Properties to abide by the covenants in this Section 18; and
(iii) if permitted by law and the Master Lease (as defined in
the Sublease for Portion of Xxxx 0, Xxxx Xxxx, between Seller and Buyer), record
against the Former Seller Properties with appropriate Governmental Authorities
such deed restrictions as are reasonably requested by Seller in furtherance of
this Section 18.
(f) USE OF TREATED GROUNDWATER. Buyer shall utilize for
landscaping and other reasonable and appropriate uses (not including human
consumption), to the, extent requested by Seller, treated groundwater which may
result from Seller Response Work, to the extent but only if such use meets the
requirements of applicable Environmental Laws or Environmental Permits and is
acceptable to Relevant Agencies. Seller shall be responsible for the costs
reasonably necessary to add such pipes and to make such modifications to
existing piping. The manner and locations of such additional pipes and
modifications to existing piping shall be reasonable and appropriate to
accommodate such uses and shall be subject to the mutual agreement of the
parties, not to be unreasonably withheld by either party.
(g) NOTICE OF RELEASES. If Buyer knows that Hazardous Materials
have been released or are threatened to be released in, on, under or about the
Property in violation of Environmental Laws, other than as previously consented
to or known by Seller, Buyer shall as soon as possible (but in any event within
twenty-four (24) hours) give written notice of such fact to Seller. Notice shall
be given immediately if Buyer reasonably believes the Release or threatened
Release (i) is likely to come in contact with sod or groundwater, (ii) is more
than one pound by weight or (iii) cannot be cleaned up within 15 minutes. Buyer
shall also as soon as possible (but in any event within twenty-four (24) hours)
give Seller a copy of any statement, report. notice. claim, initial action or
proceeding given to, or received from, any Governmental Authority or private
party concerning the Release or threatened Release. Buyer acknowledges that it,
and not Seller, is in charge of the Former Seller Properties for purposes of all
reporting requirements arising on or after the Effective Date under any
Environmental Laws.
The reporting shall include at a minimum:
a. The exact location of the Release or threatened Release;
b. The name of the person reporting the Release or the
threatened Release;
C. The Hazardous Material involved in the Release or threatened
Release;
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d. An estimate of the quantity of Hazardous Materials involved;
and
e. if known, the potential health hazards presented by the
Hazardous Material involved in the Release or threatened
Release.
(h) PERFORMANCE OF TESTING. Buyer shall provide reasonable
advance written notice to Seller, which notice shall not be less than ten (10)
working days (unless a shorter period is necessitated by legal or regulatory
requirements, in which case notice shall be provided as much in advance as is
reasonably practical), before performing or causing to be performed any
Hazardous Material testing of the soils, groundwater or surface waters at or
near the Former Seller Properties, including installation of soil borings or
monitoring xxxxx or testing of soils, groundwater or surface waters. Buyer shall
promptly furnish Seller with a copy of all test results.
(i) INSPECTION. For so long as Seller is performing, intends
to perform or may in the future be required to perform any Seller Response Work
at any of the Former Seller Properties, Seller shall have the right to enter
such Former Seller Properties during Buyer's business hours, upon forty-eight
(48) hours notice, for the purpose of inspecting the condition of the property
and for verifying compliance with all applicable laws, including the employment
of experts and consultants in connection therewith.
19. SELLER'S ACCESS INDEMNITY. Seller shall indemnify, defend, protect
and hold harmless Buyer (and Buyer's Subsidiaries, and their respective
officers, directors, shareholders, employees and agents) from and against any
all losses, costs, expenses, liabilities, obligations, claims, demands, causes
of action, suits, settlements and judgments of every nature, including the costs
and expenses associated therewith and reasonable attorneys', consultants' and
witness fees incurred ("Buyer's Damages") suffered or incurred by them arising
out of or resulting directly or indirectly from any breach by Seller of any
obligation of Seller set forth in Article IV or V or by any unlawful, negligent,
wrongful or otherwise tortious act or omission of Seller or its agents,
employees, consultants, contractors, or subcontractors in performing any Seller
Response Work.
20. BUYER'S ACCESS INDEMNITY. Buyer shall indemnify, defend, protect
and hold harmless Seller (and Seller's Subsidiaries, and their respective
officers, directors, shareholders, employees and agents) from and against any
all losses, costs, expenses, liabilities, obligations, claims, demands, causes
of action, suits, settlements and judgments of every nature, including the costs
and expenses associated therewith and reasonable attorneys', consultants' and
witness fees incurred ("Seller's Damages") suffered or incurred by them arising
out of or resulting directly or indirectly from any breach of this Environmental
Agreement by Buyer.
ARTICLE VI
GENERAL PROVISIONS
21. PROCEDURE FOR INDEMNIFICATION-THIRD PARTY CLAIMS. Promptly after
receipt by an indemnified party under Section 2 or 3 or 19 or 20 of written
notice of a claim or the commencement of any proceeding against it, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such Section, give written notice to the indemnifying
party of the commencement thereof, but the failure to notify the indemnifying
party shall not relieve it of any liability that it may have to any indemnified
party except to the extent the indemnifying party
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demonstrates that the defense of such action is prejudiced thereby. In case any
such proceeding shall be brought against an indemnified party and it shall give
notice to the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish (unless the indemnifying party is also a party to such proceeding and the
indemnified party determines in good faith that joint representation would be
inappropriate) to assume the defense thereof without counsel reasonably
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such unindemnified party
under such Section for any fees of other counsel or any other expenses with
respect to the defense of such proceeding, in each case, subsequently incurred
by such indemnified party in connection with the defense thereof. If an
indemnifying party assumes the defense of such proceeding, (a) no compromise or
settlement thereof may be affected by the indemnifying party without the
indemnified party's reasonable consent unless (i) there is not finding or
admission of any violation of law or any violation of the rights of any Person
and no effect on any other claims that may be made against the indemnified
party, and (ii) the sole relief provided is monetary damages that are paid in
full by the indemnifying party, and (b) the indemnifying party shall have no
liability with respect to any compromise or settlement thereof effected without
its consent. If notice is given to an indemnifying party of the commencement of
any proceeding and it does not, within fifteen (15) business days after the
indemnified party's notice is given, give notice to the indemnified party of its
election to assume the defense thereof, the indemnifying party shall be bound by
any determination made in such action or any compromise or settlement thereof
effected by the indemnified party. Notwithstanding the foregoing, if an
indemnified party determines in good faith that there is a reasonable
probability that a proceeding may adversely affect it or its affiliates, other
than as a result of monetary damages, such indemnified party may, by notice to
the indemnifying party, assume the exclusive right to defend, compromise or
settle such proceeding, but the indemnifying party shall not be bound by an
determination of a proceeding so defended or any compromise or settlement
thereof effected without its consent (which shall not be unreasonably withheld).
22. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given on the
date of service if served personally or by facsimile, or five (5) days after the
date of mailing if mailed, by first class mail, registered or certified, postage
prepaid. Notices shall be addressed as follows:
To Seller at: Varian Associates, Inc.
0000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Financial Officer
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to: Varian Associates, Inc.
0000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: General Counsel
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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To Buyer at: Novellus Systems, Inc.
0000 Xxxxx Xxxxx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
with a copy to: Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as a party has designated by notice in writing to the
other party in the manner provided by this Section.
23. INTERPRETATION. When a reference is made in this Environmental
Agreement to Sections, subsections, Schedules or Exhibits, such reference shall
be to a Section, subsection, Schedule or Exhibit to this Environmental Agreement
unless otherwise indicated. The words "include," "includes" and "including" when
used herein shall be deemed in each case to be followed by the words "without
limitation." The headings appearing at the beginning of several sections
contained herein have been inserted for the convenience of the parties and shall
not be used to determine the construction of interpretation of this Agreement.
24. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reasons, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the fullest extent possible.
25. SUCCESSORS AND PERMITTED ASSIGNS. This Environmental Agreement
shall be binding upon and shall inure to the benefit of the parties to this
Environmental Agreement and their successors and permitted assigns; provided,
however, that this Environmental Agreement may not be assigned by Seller without
Buyer's express written consent, which shall not be unreasonably withheld,
provided that Seller shall remain liable for the full and proper performance of
its obligations hereunder. Notwithstanding the foregoing, Seller may assign this
Agreement in whole or in part and any of its rights or obligations hereunder to
a wholly owned Subsidiary of Seller, provided that Seller shall remain liable
for the full and proper performance of its obligations hereunder. Buyer shall
have the right to assign this Environmental Agreement and the rights and
obligations under this Environmental Agreement to a third party in connection
with an assignment of all of its interests in and to one or more of the Former
Seller Properties, or to any person acquiring a distinct line or division of the
Business, provided that Buyer shall remain liable for the full and proper
performance of their obligations hereunder. Buyer shall further require any
party to whom Buyer subleases any of the Former Seller Properties to enter into
and be bound by this Environmental Agreement or a similar access agreement
acceptable to Seller.
26. PARTIES. This Environmental Agreement is for the sole benefit of
the parties hereto and their permitted assigns and nothing herein expressed or
implied shall give or be construed
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to give to any Person, other than the parties hereto and such assigns, any legal
or equitable rights hereunder.
27. MODIFICATIONS, WAIVER. This Agreement constitutes and contains the
entire agreement of the parties and supersedes any and all prior negotiations,
correspondence, understandings and agreements between the parties respecting the
subject matter hereof. This Agreement may only be amended by written instrument
signed by the parties. No waiver of any of the provisions of this Environmental
Agreement shall constitute or imply a subsequent waiver of the same or any other
provision hereof, whether or not similar, nor shall any waiver constitute a
continuing waiver, unless otherwise agreed in writing.
28. NO OTHER REMEDIES. (i) The provisions of Sections 19 and 20
exclusively govern the matters specifically described therein; notwithstanding
the foregoing, the provisions of Article II exclusively govern the matters
specifically described therein. Any and all remedies herein expressly conferred
upon a party hereby are deemed exclusive of any other remedy conferred hereby or
by law or equity on such party. In particular, the remedies provided by Article
II and Sections 19 and 20 shall be exclusive of any other rights or remedies
available to a party against the other party, either at law or in equity, in
relation to any breach, default or nonperformance of any representation,
warranty, covenant, agreement or undertaking made or entered into by such other
party pursuant to this Environmental Agreement, any agreement executed pursuant
to this Environmental Agreement or the transactions contemplated hereby.
(ii) No action for termination or rescission, or claiming
repudiation, of this Environmental Agreement or any agreement executed pursuant
to this Environmental Agreement may be brought or maintained by either party
against the other following the Effective Date no matter how severe, grave or
fundamental any such breach, default or nonperformance may be by one party.
Accordingly, the parties hereby expressly waive and forego any and all rights
they may possess to bring any such Action.
(iii) Notwithstanding any other provision in this Environmental
Agreement, Seller shall have no liability to Buyer for any consequential damages
suffered or incurred by any Buyer (or any of Buyer's Subsidiaries, or their
respective officers, directors, shareholders, employees and agents) (including
consequential damages that may relate to Buyer Losses) that arise from or relate
to any actions taken (or not taken) by any Seller (or any of Seller's
Subsidiaries, or their respective officers, directors, shareholders, employees
and agents) under or pursuant to this Environmental Agreement, other than
Buyer's Damages arising from Seller's failure to perform such work (a) in
compliance with all applicable laws, including Environmental Laws, Environmental
Permits and Governmental Orders, or (b) in a manner to avoid causing the
unreasonable interference with the Buyer's conduct of the Business.
(iv) With regard to this Section 28 as well as Section 4, Buyer
and Seller each acknowledge that it has read and is familiar with, and hereby
waives the benefit of, the provisions of California Civil Code section 1542,
which is set forth below:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the
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release, which if known by him must have materially affected his
settlement with the debtor."
29. MUTUAL DRAFTING. This Environmental Agreement is the joint product
of Buyer and Seller and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of Buyer and Seller and shall not be
construed for or against any party hereto.
30. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed in the State of California by California
residents.
31. DISPUTE RESOLUTION. Any dispute, controversy or claim between the
parties relating to, arising out of or in connection with this Agreement (or any
subsequent agreements or amendments thereto), including as to its existence,
enforceability, validity, interpretation performance, breach or damages,
including claims in tort, whether arising before or after the termination of
this Agreement, shall be settled only by binding arbitration pursuant to the
Commercial Arbitration Rules, as then amended and in effect, of the American
Arbitration Association (the "Rules"), subject to the following:
(a) The arbitration shall take place in Palo Alto, California.
(b) There shall be three arbitrators, who shall be selected under the
normal procedures prescribed in the Rules, except that one such arbitrator shall
be a certified public accountant and one arbitrator (who shall chair the
arbitration panel) shall be a member of the American Board of Trial Advocates or
the American College of Trial Lawyers.
(c) Subject to legal privileges, each party shall be entitled to
discovery in accordance with the Federal Rules of Civil Procedure.
(d) At the arbitration hearing, each party may make written and oral
presentations to the arbitrator, present testimony and written evidence and
examine witnesses.
(e) The arbitrators' decision shall be in writing, shall be binding and
final and may be entered and enforced in any court of competent jurisdiction.
(f) No party shall be eligible to receive, and the arbitrators shall
not have the authority to award, exemplary or punitive damages.
(g) Each party to the arbitration shall pay one-half of the fees and
expenses of the arbitrators and the American Arbitration Association.
(h) The arbitrators shall not have the power to amend this Agreement.
32. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but both of which when taken together
shall constitute one and the same instrument
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33. ENTIRE AGREEMENT. This Environmental Agreement, together with all
Exhibits hereto, and the documents and instruments and other agreements among
the parties delivered pursuant hereto, constitute the entire agreement and
supersede all prior agreements and undertakings, both written and oral, other
than the Confidentiality Agreement and the Asset Purchase Agreement, among
Seller and Buyer with respect to the Subject matter hereof and are not intended
to confer upon any other Person any rights or remedies hereunder, except as
otherwise expressly provided herein.
34. RECORDATION OF ENVIRONMENTAL AGREEMENT OR MEMORANDUM. This
Environmental Agreement, or a short form memorandum summarizing this
Environmental Agreement, may be recorded by Seller, in its sole discretion. Upon
termination of this Environmental Agreement, Seller shall, within a reasonable
time, execute and record a termination notice canceling and removing the effect
of such recordation for each such recording.
35. TIME PERIODS. All time periods referred to herein are in calendar
days unless otherwise indicated.
36. INDEPENDENT PARTIES. Nothing in this Environmental Agreement shall
be construed to create a relationship of employer and employee, partnership,
principal and agent, joint venture or similar arrangement between Buyer and
Seller, nor shall either party have responsibility for compliance by the other
with applicable laws, regulations, or orders of governmental agencies, or for
any other acts, errors or omissions of the other.
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IN WITNESS WHEREOF, Seller and Buyer have caused this Environmental
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
VARIAN ASSOCIATES, INC.
By: Xxxxxx X. Xxxxx
--------------------------------------
Print Name: Xxxxxx X. Xxxxx
------------------------------
Print Title: Vice President, Finance and
-----------------------------
Chief Financial Officer
NOVELLUS SYSTEMS, INC.
By: Xxxx Xxxxxxxx
--------------------------------------
Print Name: Xxxx Xxxxxxxx
------------------------------
Print Tide: Executive Vice President,
------------------------------
Operations
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