Exhibit 10.9
Real Estate Matters Agreement
by and between
Schlumberger Technologies, Inc.,
Schlumberger Technology Corporation,
Schlumberger BV
and
NPTest, Inc.
_______ __, 2000
TABLE OF CONTENTS
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Page
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ARTICLE I PROPERTY ............................................................................................. 1
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Section 1.1 Leased Property .............................................................................. 1
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Section 1.2 Shared Properties ............................................................................ 2
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Section 1.3 Obtaining the Lease Consents ................................................................. 2
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Section 1.4 Occupation by NPT ............................................................................ 3
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Section 1.5 Obligation to Complete ....................................................................... 4
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Section 1.6 Form of Transfer ............................................................................. 4
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Section 1.7 Casualty; Lease Termination .................................................................. 5
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Section 1.8 Tenant's Fixtures and Fittings ............................................................... 5
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Section 1.9 Costs. ....................................................................................... 5
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ARTICLE II MISCELLANEOUS ...................................................................................... 5
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Section 2.1 Limitation of Liability ..................................................................... 5
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Section 2.2 Entire Agreement ............................................................................ 5
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Section 2.3 Governing Law ............................................................................... 6
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Section 2.4 Notices ..................................................................................... 6
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Section 2.5 Counterparts ................................................................................ 7
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Section 2.6 Binding Effect; Assignment .................................................................. 7
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Section 2.7 Severability ................................................................................ 7
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Section 2.8 Failure or Indulgence Not Waiver; Remedies Cumulative ....................................... 7
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Section 2.9 Amendment ................................................................................... 7
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Section 2.10 Authority ................................................................................... 7
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Section 2.11 Interpretation .............................................................................. 8
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Section 2.12 Disputes .................................................................................... 8
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ARTICLE III DEFINITIONS ....................................................................................... 8
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Section 3.1 Disputes .................................................................................... 8
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Section 3.2 Landlord .................................................................................... 8
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Section 3.3 Lease Consents .............................................................................. 8
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Section 3.4 Leased Properties ........................................................................... 8
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Section 3.5 Sublease Form ............................................................................... 8
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Section 3.6 Master Separation and Sale Agreement ........................................................ 8
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Section 3.7 Prior Transfers ............................................................................. 8
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Section 3.8 Property .................................................................................... 9
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Section 3.9 Relevant Leases ............................................................................. 9
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Section 3.10 Separation Date ............................................................................. 9
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Section 3.11 Shared Properties ........................................................................... 9
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Section 3.12 Schlumberger's Lease ........................................................................ 9
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Section 3.13 Subsidiary .................................................................................. 9
REAL ESTATE MATTERS AGREEMENT
This Real Estate Matters Agreement (this "Agreement") is entered into as of
_______ __, 2000 by and among Schlumberger Technologies, Inc., a Delaware
corporation ("STI"), Schlumberger Technology Corporation, a Texas corporation
("STC"), Schlumberger BV, a company organized and existing under the laws of the
Netherlands ("SBV" and, together with STI and STC, "Schlumberger"), and NPTest,
Inc. ("NPT"), a Delaware corporation. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in
Article III hereof.
RECITALS
WHEREAS, NPT is engaged in the NPT Business (as such term is defined in the
Master Separation and Sale Agreement);
WHEREAS, the parties have entered into a Master Separation and Sale
Agreement in connection with the Separation, as there described; and
WHEREAS, as provided in the Master Separation and Sale Agreement, the
parties desire to set forth certain agreements regarding certain real estate
matters.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
PROPERTY
Section 1.1 Leased Property.
(a) Schlumberger shall assign or cause its applicable Subsidiary
to assign, and NPT shall accept and assume, or cause its applicable Subsidiary
to accept and assume, Schlumberger's or its Subsidiary's interest in the Leased
Properties, subject to and consistent with the other provisions of this
Agreement, the terms of the Master Separation and Sale Agreement, the other
Ancillary Agreements and the agreements executed in connection with the Prior
Transfers. Such assignment and assumption shall be effective on the later of:
(i) the Separation Date; or (ii) the earlier of (A) the fifth business day after
the relevant Lease Consent has been granted or (B) the date agreed upon by the
parties in accordance with Section 1.6(a) below.
(b) Subject to the completion of the assignment to NPT or its
applicable Subsidiary of the relevant Leased Property, with respect to each
Leased Property which is also a Shared Property, NPT shall grant or cause its
applicable Subsidiary to grant to Schlumberger or its applicable Subsidiary a
sublease to occupy that part of the relevant Leased Property identified in
Section A of Schedule 1 of this Agreement and Schlumberger shall accept or cause
its applicable Subsidiary to accept the same. Such sublease shall be completed
immediately following completion of the transfer of the relevant Leased Property
to NPT or its applicable Subsidiary.
Section 1.2 Shared Properties. Schlumberger shall grant or cause its
applicable Subsidiary to grant to NPT or its applicable Subsidiary a sublease to
occupy those parts of the Shared Properties identified in Section B of Schedule
1 of this Agreement and NPT shall accept or cause its applicable Subsidiary to
accept the same, subject to and consistent with the other provisions of this
Agreement, the terms of the Master Separation and Sale Agreement, the other
Ancillary Agreements and the agreements executed in connection with the Prior
Transfers. Such sublease shall be effective on the Separation Date.
Section 1.3 Obtaining the Lease Consents.
(a) Schlumberger confirms that, with respect to each Leased
Property, an application has been made or will be made on or prior to the
Separation Date to the relevant Landlord for the Lease Consents required with
respect to the transactions contemplated by this Agreement.
(b) Schlumberger will use its reasonable efforts to obtain the
Lease Consents as to each Leased Property, but Schlumberger shall not be
required to commence judicial proceedings for a declaration that a Lease Consent
has been unreasonably withheld or delayed, nor shall Schlumberger be required to
pay any consideration in excess of that required by the Relevant Lease or that
which is typical in the open market to obtain the relevant Lease Consent. NPT
shall cooperate as reasonably requested by Schlumberger to obtain the Lease
Consents.
(c) NPT and Schlumberger will promptly satisfy or cause their
applicable Subsidiaries to satisfy the lawful requirements of the Landlord, and
NPT will take or cause its applicable Subsidiary to take all steps to assist
Schlumberger in obtaining the Lease Consents as to each Leased Property,
including, without limitation:
(i) if required by the Landlord, entering into an agreement
with the relevant Landlord to observe and perform the tenant's obligations
contained in the Relevant Lease throughout the remainder of the term of the
Relevant Lease, subject to any statutory limitations of such liability;
(ii) if required by the Landlord, providing a guarantee, surety
or other security (including, without limitation, a security deposit) for the
obligations of NPT or its applicable Subsidiary as tenant under the Relevant
Lease, and otherwise taking all steps that are reasonably necessary and that NPT
or its applicable Subsidiary is reasonably capable of taking to meet the lawful
requirements of the Landlord so as to ensure that the Lease Consents are
obtained; and
(iii) using all reasonable efforts to assist Schlumberger with
obtaining the Landlord's consent to the release of any guarantee, surety or
other security which Schlumberger or its Subsidiary (other than NPT or its
Subsidiaries) may have previously provided to the Landlord and, if required,
offering the same or equivalent security to the Landlord in order to obtain such
release.
Notwithstanding the foregoing, (1) except with respect to guarantees,
sureties or other security referenced in Section 1.3(c)(ii) above, NPT shall not
be required to obtain a release of any obligation entered into by Schlumberger
or any of its Subsidiaries with any Landlord or
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other third party with respect to any Property and (2) prior to the receipt of
each Lease Consent, NPT shall not communicate or permit its applicable
Subsidiary to communicate directly with the applicable Landlord unless NPT can
show Schlumberger reasonable grounds for doing so.
(d) If, with respect to any Leased Properties, Schlumberger and
NPT are unable to obtain a release by the Landlord of any guarantee, surety or
other security which Schlumberger or its Subsidiary (other than NPT or its
Subsidiaries) has previously provided to the Landlord, NPT shall indemnify,
defend, protect and hold harmless Schlumberger and its applicable Subsidiaries
from and after the Separation Date against all losses, costs, claims, damages,
or liabilities incurred by Schlumberger or such Subsidiaries as a result of
NPT's occupancy of the Leased Property with respect to such guarantee, surety or
other security.
Section 1.4 Occupation by NPT.
(a) Subject to compliance with Section 1.4(b) below, in the event
that the transfer of any Leased Property does not occur on the Separation Date,
NPT or its applicable Subsidiary shall, commencing on the Separation Date, be
entitled to occupy the relevant Property (except to the extent that the same is
a Retained Part) as a subleasee upon the terms and conditions contained in
Schlumberger's Lease. Such sublease shall not be revocable prior to the date for
completion as provided in Section 1.1(a) unless an enforcement action or
forfeiture by the relevant Landlord due to NPT's or its applicable Subsidiary's
occupation of the Property constituting a breach of Schlumberger's Lease cannot,
in the reasonable opinion of Schlumberger, be avoided other than by requiring
NPT or its applicable Subsidiary to immediately vacate the relevant Property, in
which case Schlumberger may by notice to NPT immediately require NPT or its
applicable Subsidiary to vacate the relevant Property. NPT will be responsible
for all costs, expenses and liabilities incurred by Schlumberger or its
applicable Subsidiary as a consequence of such occupation, except for any
losses, claims, costs, demands and liabilities incurred by Schlumberger or its
Subsidiary as a result of any enforcement action taken by the Landlord against
Schlumberger or its Subsidiary with respect to any breach by Schlumberger or its
Subsidiary of the Relevant Lease in permitting NPT or its applicable Subsidiary
to so occupy the Property without obtaining the required Lease Consent, for
which Schlumberger or its Subsidiary shall be solely responsible. Neither NPT
nor its applicable Subsidiary shall be entitled to make any claim or demand
against, or obtain reimbursement from, Schlumberger or its applicable Subsidiary
with respect to any costs, losses, claims, liabilities or damages incurred by
NPT or its applicable Subsidiary as a consequence of being obliged to vacate the
Property or in obtaining alternative premises, including, without limitation,
any enforcement action which a Landlord may take against NPT or its applicable
Subsidiary.
(b) In the event that the transfer of any Leased Property does
not occur on the Separation Date, whether or not NPT or its applicable
Subsidiary occupies a Property as subleasee as provided in Section 1.4(a) above,
NPT shall, effective as of the Separation Date, (i) pay or cause its applicable
Subsidiary to pay Schlumberger all rents, service charges, insurance premiums
and other sums payable by Schlumberger or its applicable Subsidiary under any
Relevant Lease, (ii) observe or cause its applicable Subsidiary to observe the
tenant's covenants, obligations and conditions contained in Schlumberger's Lease
and (iii) indemnify, defend, protect and hold harmless Schlumberger and its
applicable Subsidiary from and against all
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losses, costs, claims, damages and liabilities arising on account of any breach
thereof by NPT or its applicable Subsidiary.
(c) Schlumberger shall supply promptly to NPT copies of all
invoices, demands, notices and other communications received by Schlumberger or
its applicable Subsidiaries or agents in connection with any of the matters for
which NPT or its applicable Subsidiary may be liable to make any payment or
perform any obligation pursuant to Section 1.4(a) or (b), and shall, at NPT's
cost, take any steps and pass on any objections which NPT or its applicable
Subsidiary may have in connection with any such matters. NPT shall promptly
supply to Schlumberger any notices, demands, invoices and other communications
received by NPT or its applicable Subsidiary or agents from any Landlord while
NPT or its applicable Subsidiary occupies any Property without the relevant
Lease Consent.
Section 1.5 Obligation to Complete.
(a) If, with respect to any Leased Property, at any time the
relevant Lease Consent is formally and unconditionally refused in writing,
Schlumberger and NPT shall commence good faith negotiations and use reasonable
efforts to determine how to allocate the applicable Property, based on the
relative importance of the applicable Property to the operations of each party,
the size of the applicable Property, the number of employees of each party at
the applicable Property and the potential risk and liability to each party in
the event an enforcement action is brought by the applicable Landlord. Such
reasonable efforts shall include consideration of alternate structures to
accommodate the needs of both parties and the allocation of the costs thereof,
including entering into amendments of the size, term or other terms of the
Relevant Lease, restructuring a proposed lease assignment to be a sublease and
relocating one party. If the parties are unable to agree upon an allocation of
the Property within 15 days after commencement of negotiations between the
parties as described above, then the terms of the provisions entitled "Dispute
Resolution" in the Master Separation and Sale Agreement shall apply to any such
disagreement or dispute.
Section 1.6 Form of Transfer.
(a) The assignment to NPT or its applicable Subsidiary of each
relevant Leased Property shall be in substantially the form attached in Schedule
2, with such amendments which in the reasonable opinion of Schlumberger are
necessary with respect to a particular Property, including, without limitation,
in all cases where a relevant Landlord has required a guarantor or surety to
guarantee the obligations of NPT or its applicable Subsidiary contained in the
relevant Lease Consent or any other document which NPT or its applicable
Subsidiary is required to complete, the giving of such guarantee by a guarantor
or surety, and the giving by NPT or its applicable Subsidiary and any guarantor
or surety of NPT's or its applicable Subsidiary's obligations of direct
obligations to Schlumberger or third parties where required under the terms of
any of the Lease Consent or any covenant, condition, restriction, easement,
lease or other encumbrance to which the Property is subject. Such amendments
shall be submitted to NPT for approval, which approval shall not be unreasonably
withheld or delayed.
(b) The subleases to be granted by NPT or its applicable
Subsidiary to Schlumberger or its applicable Subsidiary, and Schlumberger or its
applicable Subsidiary to NPT
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or its applicable Subsidiary, with respect to the Shared Properties shall be at
a rental rate set forth in Schedule 4 hereof and be for a term of 18 months from
the Separation Date. Either party shall have the right to terminate the sublease
as to any of the Properties upon 30 days' prior written notice. The sublease
shall be substantially in the form of the Sublease Form, with such amendments as
are, in the reasonable opinion of Schlumberger, necessary with respect to a
particular Property. Such amendments shall be submitted to NPT for approval,
which approval shall not be unreasonably withheld.
Section 1.7 Casualty; Lease Termination. The parties hereto shall grant
and accept assignments, leases, subleases or licenses of the Properties as
described in this Agreement, regardless of any casualty damage or other change
in the condition of the Properties. In addition, subject to Schlumberger's
obligations in Section 5.6 of the Master Separation and Sale Agreement, in the
event that Schlumberger's Lease with respect to a Leased Property or a Shared
Property is terminated prior to the Separation Date, (a) Schlumberger or its
applicable Subsidiary shall not be required to assign, sublease or license such
Property, (b) NPT or its applicable Subsidiary shall not be required to accept
an assignment, sublease or license of such Property and (c) neither party shall
have any further liability with respect to such Property hereunder.
Section 1.8 Tenant's Fixtures and Fittings. The provisions of the
Master Separation and Sale Agreement, the other Ancillary Agreements and the
agreements executed in connection with the Prior Transfers shall apply to any
trade fixtures and personal property located at each Property. The lease and
sublease of the Leased Properties and the subleases as to the Shared Properties
shall include the rental of the furniture at such Properties.
Section 1.9 Costs. Subject to Section 1.3, Schlumberger shall pay all
reasonable costs and expenses incurred in connection with obtaining the Lease
Consents, including, without limitation, Landlord's consent fees and attorneys'
fees and any costs and expenses relating to re-negotiation of Schlumberger's
Leases.
ARTICLE II
MISCELLANEOUS
Section 2.1 Limitation of Liability. IN NO EVENT SHALL ANY MEMBER OF
THE SCHLUMBERGER GROUP OR NPT GROUP BE LIABLE TO ANY OTHER MEMBER OF THE
SCHLUMBERGER GROUP OR NPT GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT,
INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY
OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S
INDEMNIFICATION OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES AS SET FORTH IN THE
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT.
Section 2.2 Entire Agreement. This Agreement, the Master Separation and
Sale Agreement, the other Ancillary Agreements, the Exhibits and Schedules
referenced or attached
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hereto and thereto, and the agreements executed in connection with the Prior
Transfers constitute the entire agreement between the parties with respect to
the subject matter hereof and shall supersede all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof.
Section 2.3 Governing Law. This Agreement shall be construed in
accordance with and all Disputes hereunder shall be governed by the laws of the
State of Delaware, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. Notwithstanding the
foregoing, the applicable Property transfers shall be performed in accordance
with the laws of the state in which the applicable Property is located.
Section 2.4 Notices. Notices, offers, requests or other communications
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
if to STI:
Schlumberger Technologies, Inc.
[To Come]
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
if to SBV:
Schlumberger BV
[To Come]
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
if to STC:
Schlumberger Technology Corporation
[To Come]
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
if to NPT:
NPTest, Inc.
[To Come]
Attention: General Counsel
Telephone: [__________]
Facsimile: [__________]
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or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three days from the
date of postmark.
Section 2.5 Counterparts. This Agreement, including the Schedules and
Exhibits hereto, and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 2.6 Binding Effect; Assignment. No party may, directly or
indirectly, in whole or in part, whether by operation of law or otherwise,
assign or transfer this Agreement, without the other parties' prior written
consent, and any attempted assignment, transfer or delegation without such prior
written consent shall be voidable at the sole option of such other parties.
Notwithstanding the foregoing, each party (or its permitted successive assignees
or transferees hereunder) may assign or transfer this Agreement as a whole
without consent to an entity that succeeds to all or substantially all of the
business or assets of such party. Without limiting the foregoing, this Agreement
will be binding upon and inure to the benefit of the parties and their permitted
successors and assigns.
Section 2.7 Severability. If any term or other provision of this
Agreement or the Schedules or Exhibits attached hereto is determined by a court,
administrative agency or arbitrator to be invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to either party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the fullest extent possible.
Section 2.8 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of either party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement or the Exhibits or Schedules attached hereto are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
Section 2.9 Amendment. No change or amendment will be made to this
Agreement or the Exhibits or Schedules attached hereto except by an instrument
in writing signed on behalf of each of the parties to such agreement.
Section 2.10 Authority. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this
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Agreement, (b) the execution, delivery and performance of this Agreement by it
have been duly authorized by all necessary corporate or other action, (c) it has
duly and validly executed and delivered this Agreement, and (d) this Agreement
is a legal, valid and binding obligation, enforceable against it in accordance
with its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equity principles.
Section 2.11 Interpretation. The headings contained in this Agreement,
in any Exhibit or Schedule hereto and in the table or contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Schedule or
Exhibit but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
Section 2.12 Disputes. Any Disputes that arise under this Agreement
shall be resolved in accordance with the provisions of Section 5.9 of the Master
Separation and Sale Agreement.
ARTICLE III
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
Section 3.1 Disputes. "Disputes" has the meaning set forth in the
Master Separation and Sale Agreement.
Section 3.2 Landlord. "Landlord" means the landlord under
Schlumberger's Lease, and its successors and assigns, and includes the holder of
any other interest which is superior to the interest of the landlord under
Schlumberger's Lease.
Section 3.3 Lease Consents. "Lease Consents" means all consents,
waivers or amendments required from the Landlord or other third parties under
the Relevant Leases to assign the Relevant Leases to NPT or its applicable
Subsidiary.
Section 3.4 Leased Properties. "Leased Properties" means those
Properties listed in Section A of Schedule 1 of this Agreement.
Section 3.5 Sublease Form. "Sublease Form" means the form sublease
attached hereto as Schedule 3.
Section 3.6 Master Separation and Sale Agreement . "Master Separation
and Sale Agreement" means that certain Master Separation and Sale Agreement by
and among STI, STC, SBV and NPT.
Section 3.7 Prior Transfers . "Prior Transfers" has the meaning set
forth in the Master Separation and Sale Agreement.
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Section 3.8 Property. "Property" means the Leased Properties and the
Shared Properties.
Section 3.9 Relevant Leases. "Relevant Leases" means those of
Schlumberger's Leases with respect to which the Landlord's consent is required
for assignment or sublease to a third party or which prohibit assignments or
subleases.
Section 3.10 Separation Date. "Separation Date" has the meaning set
forth in the Master Separation and Sale Agreement.
Section 3.11 Shared Properties. "Shared Properties" means those
Properties listed in (a) Section A of Schedule 1 as a Property involving a
sublease back to Schlumberger and (b) Section B of Schedule 1 of this Agreement
involving a sublease to NPT.
Section 3.12 Schlumberger's Lease. "Schlumberger's Leases" means, in
relation to each Property, the lease(s) or sublease(s) or license(s) under which
Schlumberger or its applicable Subsidiary holds such Property and any other
supplemental document completed prior to the Separation Date.
Section 3.13 Subsidiary. "Subsidiary has the meaning set forth in the
Master Separation and Sale Agreement.
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WHEREFORE, the parties have signed this Real Estate Matters Agreement
effective as of the date first set forth above.
Schlumberger Technologies, Inc. NPTest, Inc.
By: ____________________________________ By: ______________________________
Name: Name:
Title: Title:
Schlumberger BV
By: ____________________________________
Name:
Title:
Schlumberger Technology Corporation
By: ____________________________________
Name:
Title:
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Schedule 1
Properties
Schedule 2
Form Assignment for Leased Properties
Schedule 3
Form Sublease for Shared Properties
Schedule 4
Sublease Rental Rates
