EXHIBIT 2.4
EXECUTION COPY
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AMENDED AND RESTATED ENVIRONMENTAL AGREEMENT
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This AMENDED AND RESTATED ENVIRONMENTAL AGREEMENT ("AGREEMENT") is
entered into as of October 19, 2001, by and among Northrop Grumman Systems
Corporation, a Delaware corporation ("PURCHASER"), and Aerojet-General
Corporation, an Ohio corporation ("AEROJET" or "SELLER").
WHEREAS, Purchaser and Seller entered into an agreement for the
purchase and sale of assets on April 19, 2001, (the "ASSET PURCHASE AGREEMENT"),
and Purchaser and Seller (each sometimes referred to as "PARTY" and
collectively, "PARTIES") desire to set forth their respective obligations with
respect to certain environmental matters in connection with the Asset Purchase
Agreement.
WHEREAS, Seller has agreed pursuant to the Asset Purchase Agreement to
retain responsibility for Losses to the extent attributable to pre-closing
releases of hazardous substances and Purchaser has agreed to assume
responsibility for Losses to the extent attributable to post-closing releases of
hazardous substances.
WHEREAS, Seller and the United States are each party to the ASBCA
Settlement Agreement, as modified, which obliges the United States, among other
things, to reimburse Aerojet for Allowable Site Restoration Costs associated
with the certain Losses referred to in the previous recital.
WHEREAS, the ASBCA Settlement Agreement provides that in the event
Aerojet transfers operations giving rise to the environmental costs to another
entity, the United States will pay the amounts that it would otherwise reimburse
Aerojet for Allowable Site Restoration Costs to the transferee entity, for
payment by the transferee entity on to Aerojet.
WHEREAS, Purchaser, as a transferee entity within the contemplation of
the ASBCA Settlement Agreement, agrees to act as Aerojet's collection agent with
respect to environmental cost reimbursements relating to the business
transferred under the Asset Purchase Agreement.
WHEREAS, Seller is the owner of certain real property known as the
Azusa Facility and has been identified as one of nineteen Special Notice
potentially responsible parties with respect to the Xxxxxxx Park Operable Unit
of the San Xxxxxxx Valley Superfund Site ("BPOU"), at which the remedial
measures have been identified and are under construction.
WHEREAS, Purchaser intends to obtain, at Purchaser's sole expense, a
Prospective Purchaser Agreement ("PPA") from the U.S. Environmental Protection
Agency ("U.S. EPA") protecting Purchaser from certain governmental and private
party contribution actions with respect to the Xxxxxxx Park Operable Unit and
the obtaining of such a PPA is a condition to Closing.
WHEREAS, as a condition precedent to the closing of the transactions
contemplated by the Asset Purchase Agreement (the "CLOSING"), the Parties have
agreed to execute and deliver this Agreement;
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WHEREAS, in light of certain changed circumstances surrounding the APA
and the PPA, Seller has provided consideration, under the PPA, of $9 million in
cash as a credit to U.S. EPA's "past costs" and has established an irrevocable
Environmental Escrow Fund, with a pre-closing cash payment of $40 Million, with
respect to Seller's obligations to the U.S. EPA and other interested parties in
the BPOU; the Parties therefore have amended and restated this Environmental
Agreement as of the date hereof.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1. DEFINITIONS. Except where separately defined in this
Agreement, terms defined in the Asset Purchase Agreement shall have the same
meaning hereunder. For purposes of this Agreement, the following terms shall
have the meanings respectively ascribed below:
(a) "ACTIVE FACILITIES" means the (i) Azusa Facility and (ii)
Seller's leased facilities at Boulder, Colorado and Colorado Springs, Colorado,
as described in Section 2.1 and Schedule 2.1 of the Asset Purchase Agreement.
(b) "ALLOWABLE SITE RESTORATION COSTS" shall have the meaning
set forth in Section 2.4 of the ASBCA Settlement Agreement.
(c) "ASBCA SETTLEMENT AGREEMENT" means Modification No. 1 to
the 29 November 1992 Settlement Agreement between the United States and
Aerojet-General Corporation, approved as to form October 1, 1998 and executed
October 27, 1998, in the Armed Services Board of Contract Appeals matter ASBCA
No. 40309, Appeal of Aerojet-General Corporation, which is attached hereto as
EXHIBIT A.
(d) "ASSET PURCHASE AGREEMENT" shall have the meaning set
forth in the Recitals hereof;
(e) "AZUSA FACILITY" means Seller's manufacturing and testing
facility in Azusa, California.
(f) "BUSINESS" shall have the meaning set forth in the
Recitals of the Asset Purchase Agreement.
(g) "BUSINESS REAL PROPERTY" shall have the meaning set forth
in Section 6.7(a)(i) of the Asset Purchase Agreement.
(h) "CARRY FORWARD AMOUNTS" shall have the meaning set forth
in Section 5(c) hereof.
(i) "CLAIM" means any and all suits, claims, demands, actions
or other legal proceedings under which a Party may incur a Loss.
(j) "DISPOSAL SITE" means any real property at which Hazardous
Substances, generated by Seller prior to the Closing Date in connection with the
Business, come to be located before or after the Closing Date.
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(k) "ENTITY OR ENTITIES" means, as to a Party, that Party and
its parents, affiliates and subsidiaries, and their respective officers,
directors, shareholders, partners, employees and agents and the heirs,
executors, successors and permitted assigns of any of the foregoing.
(l) "ENVIRONMENT" shall have the meaning set forth in Section
6.16(d) of the Asset Purchase Agreement.
(m) "ENVIRONMENTAL AGREEMENT" shall have the meaning set forth
in Section 6.16(d) of the Asset Purchase Agreement.
(n) "ENVIRONMENTAL LAW" shall have the meaning set forth in
Section 6.16(d) of the Asset Purchase Agreement.
(o) "ENVIRONMENTAL PERMITS" shall have the meaning set forth
in Section 6.16(d) of the Asset Purchase Agreement.
(p) "ENVIRONMENTAL STATUTES" shall have the meaning set forth
in Section 6.16(d) of the Asset Purchase Agreement.
(q) "EXPOSURE RESTRICTION" shall have the meaning set forth in
Section 4(e) hereof.
(r) "FORMER FACILITY" means any real property that was
operated by Seller prior to the Closing Date as part of the Business, but which
was not owned or leased by Seller on the Closing Date.
(s) "FULL REIMBURSEMENT" shall have the meaning set forth in
Section 11.5 of the ASBCA Settlement Agreement.
(t) "GOVERNMENTAL AUTHORITY" shall have the meaning set forth
in Article 1 of the Asset Purchase Agreement.
(u) "HAZARDOUS SUBSTANCE" shall have the meaning set forth in
Section 6.16(d) of the Asset Purchase Agreement.
(v) "INDEMNIFY" means to indemnify, defend, save, and hold
harmless.
(w) "INDEMNIFIED ENTITY" shall have the meaning set forth in
Section 3(a) hereof.
(x) "INDEMNIFYING PARTY" shall have the meaning set forth in
Section 3(a) hereof.
(y) "INDEPENDENT CONSULTANTS" shall have the meaning set forth
in Section 8(b)(ii) hereof.
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(z) "LOSS" means any and all liabilities, penalties, fines,
losses, damages (including, but not limited to, property damage, bodily injury
and natural resource damages), expenses, judgments, executions, deficiencies,
liens, interest, assessments, charges, investigation and remediation costs of
any kind (including, but not limited to, laboratory, handling, transportation,
containment, neutralization, disposal, capping and other similar costs),
operation and maintenance costs, financial assurance costs, Governmental
Authority costs (including, but not limited to, permitting, licensing, hazardous
waste taxes and oversight costs), and reasonable defense costs of any kind or
nature whatsoever (including reasonable attorneys', consultants', engineers' and
contractors' fees) arising under Environmental Laws due to a Release of
Hazardous Substances. Loss shall not include punitive damages, consequential
damages, lost profits or rents, diminution in the value of real property or
business interruption losses incurred by an Indemnified Entity but shall include
any additional allowable contract costs incurred or consideration that Purchaser
becomes obligated to pay to the U.S. Government solely to the extent that
Remedial Action Work undertaken by Seller at the Azusa facility causes a delay
in or disruption to performance of a government contract.
(aa) "PERSON" means any individual, corporation, partnership,
association, trust, limited liability company or any other entity or
organization, including a government or political subdivision or agency, unit or
instrumentality thereof.
(bb) "PRE-CLOSING CONTAMINATION" means the presence of
Hazardous Substances as of the Closing Date on, in or under, or the migration of
Hazardous Substances on or before the Closing Date from, an Active Facility,
Former Facility or Disposal Site (including groundwater thereunder) in either
concentrations or amounts for which Remedial Action Work is required under
applicable Environmental Laws, taking into account any applicable Exposure
Restrictions.
(cc) "PRE-CLOSING EXPOSURE" means human exposure to Hazardous
Substances, Released in connection with the Business prior to the Closing Date,
that results in liability for bodily injury.
(dd) "RELEASE" shall have the meaning set forth in Section
6.16(d) of the Asset Purchase Agreement.
(ee) "REMEDIAL ACTION WORK" means all activities (consistent
with applicable Exposure Restrictions, if any) required under applicable
Environmental Laws to investigate, assess, monitor, remediate and/or perform
other related environmental corrective action to address Pre-Closing
Contamination and includes, without limitation, "Remedial Action," as defined in
Section 2.9 of the ASBCA Settlement Agreement. Remedial Action Work will, in
each event, incorporate application, so far as permitted by applicable
Environmental Laws, of remedial standards based on the Exposure Restriction.
(ff) "REPRESENTATIVES" shall have the meaning set forth in
Section 6(a) hereof.
(gg) "SIGN-OFF DATE" shall have the meaning set forth in
Section 4(d) hereof.
(hh) "SITE RESTORATION COSTS" shall have the meaning set forth
in Section 2.11 of the ASBCA Settlement Agreement.
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(ii) "THIRD PARTY" shall mean any Person, excluding the
Parties and their respective Entities.
(jj) "TRANSFER" shall mean a voluntary or involuntary
conveyance of any fee simple interest, leasehold interest, easement, license
agreement or similar possessory interest in or to any of the Active Facilities.
(kk) "TRANSFERRED SITE RESTORATION COSTS" shall have the
meaning set forth in Section 11.5 of the ASBCA Settlement Agreement.
ARTICLE 2. ENVIRONMENTAL INDEMNIFICATION.
(a) BY SELLER. Subject to the provisions of this Agreement,
Seller shall Indemnify the Purchaser Entities from and against any Loss suffered
by such Purchaser Entities to the extent arising from:
(i) Pre-Closing Contamination at an Active Facility;
(ii) any Claim made by a Third Party against a Purchaser
Entity alleging a Loss arising out of any Pre-Closing Contamination or
any Pre-Closing Exposure;
(iii) Seller's noncompliance with applicable Environmental
Laws on or before the Closing Date; and
(iv) Seller's breach of this Agreement.
(b) BY PURCHASER. Subject to the provisions of this Agreement,
Purchaser shall Indemnify the Seller Entities from and against any Loss suffered
by such Seller Entities to the extent arising from:
(i) the operation of the Business, including ownership, use or
occupancy of the Active Facilities, after the Closing Date, including
any additional cost incurred by Seller to perform Remedial Action Work
due to a Release of Hazardous Substances by Purchaser after the Closing
Date;
(ii) removal by Purchaser of an Exposure Restriction at any
Active Facility as provided in Section 4(e) of this Agreement;
(iii) Purchaser's noncompliance with applicable Environmental
Laws on or after the Closing Date; and
(iv) Purchaser's breach of this Agreement.
(c) RELATIONSHIP TO ASSET PURCHASE AGREEMENT. This Agreement
is intended to implement cost allocation, environmental remediation, and
indemnification rights and obligations under the Asset Purchase Agreement with
respect to the matters described herein. In the event of any ambiguity or
conflict between the Asset Purchase Agreement and this Agreement, the provisions
of this Agreement shall control.
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ARTICLE 3. INDEMNIFICATION PROCEDURE.
(a) NOTICE. The Entity entitled to and claiming
indemnification under this Agreement (the "INDEMNIFIED ENTITY") shall notify the
Party obligated to provide such indemnification (the "INDEMNIFYING PARTY") with
reasonable promptness of its discovery of any matter giving rise to such claim,
provided that failure to so notify will not release the Indemnifying Party from
liability under this Agreement except to the extent such Party is prejudiced and
except as set forth in Section 2(b)(ii) above. A claim for indemnification under
this Agreement shall be deemed to have been brought only upon delivery of a
written notice to the Indemnifying Party at the notice addresses set forth in
Article 12, stating with reasonable specificity the basis for the claim.
(b) DEFENSE OF THIRD-PARTY CLAIMS. With respect to any Third
Party claim, the Indemnifying Party shall, except as otherwise provided herein,
assume the defense thereof with counsel (the fees and expenses of which shall be
paid by the Indemnifying Party) reasonably satisfactory to the Indemnified
Entity; and subsequent to such assumption of defense, the Indemnifying Party
shall not be liable to the Indemnified Entity for any fees or expenses of
counsel subsequently incurred by the Indemnified Entity in connection with the
defense thereof, provided that an Indemnified Entity shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the sole expense of such Indemnified Entity. The Indemnifying Party shall not,
in connection with any proceeding or related proceedings, be liable for the
reasonable fees and expenses of more than one such counsel for all Indemnified
Entities. The Indemnifying Party may settle or compromise any Third Party claim,
unless such settlement or compromise would impose upon the Indemnified Entity an
injunctive obligation for which the Indemnifying Entity would not be responsible
pursuant to this Agreement or would require an admission of culpability by the
Indemnified Party.
(c) RESERVATION OF RIGHTS. If, at the time that an
Indemnifying Party receives a claim for indemnification under this Agreement,
the Indemnifying Party has a good faith factual basis for questioning whether
such claim will ultimately fall within its obligations under Article 2 of this
Agreement, the Indemnifying Party may notify the Indemnified Entity in writing
that it is assuming responsibility for such claim under a reservation of rights.
Thereafter, the Indemnifying Party may initiate dispute resolution pursuant to
this Agreement and, if the Indemnifying Party establishes by a preponderance of
the evidence that the relevant claim did not fall within its obligations under
Article 2, the Indemnified Entity shall promptly reimburse the Indemnifying
Party for any Losses (but not including any costs incurred in pursuing dispute
resolution) incurred by the Indemnifying Party under the reservation of rights.
If the Indemnifying Party fails to establish that the relevant claim did not
fall within its obligations under Article 2, the Indemnifying Party shall remain
responsible for all Losses attributable to the relevant claim and shall also
reimburse the Indemnified Party for its reasonable costs incurred during dispute
resolution.
(d) COOPERATION. The Indemnified Entity and the Indemnifying
Party will each, at its sole expense, provide the other full cooperation in the
defense of any indemnification claim, and shall furnish any documents or
endeavor to make available any witnesses under its control.
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(e) OPPORTUNITY TO CURE. An Indemnified Entity shall not be
entitled to make a claim under Sections 2(a)(iv) or 2(b)(iv) of this Agreement
unless and until (i) the Indemnified Entity shall have provided the Indemnifying
Party with written notice of such breach, and (ii) the Indemnifying Party shall
have failed to cure such breach within thirty (30) days after its receipt of
such notice.
(f) LIMITATIONS. Any claim under Section 2(a)(iv) of this
Agreement with respect to Remedial Action Work shall be brought no later than
the Sign-Off Date for such Remedial Action Work. Any claim required to be made
within such period, but not so timely made, will be forever barred. The
indemnification obligations of Seller under this Agreement shall also not apply
to the extent that such indemnification is dependent on access to an Active
Facility for Remedial Action Work and Seller or its contractors are not provided
such access. The indemnification provided under this Agreement shall not protect
any Indemnified Entity from or against any Loss to the extent caused by the
negligent or tortious acts or omissions of any Indemnified Entity or its
representatives and agents.
ARTICLE 4. PRE-CLOSING CONTAMINATION.
(a) RETAINED ENVIRONMENTAL LIABILITIES. In accordance with
paragraph 3.2(f) of the Asset Purchase Agreement, Seller shall retain and pay,
perform, satisfy and discharge when due, all of the liabilities and obligations
of Seller arising under any Environmental Law, to the extent attributable to the
Business Real Property or the operation of the Business on or prior to the
Closing Date.
(b) REMEDIAL ACTION WORK. Upon notice from Purchaser in
accordance with Article 2 and subject to Purchaser's compliance with its
obligations hereunder, Seller covenants to use all reasonable efforts to
perform, at its sole expense, without unreasonable delay, Remedial Action Work
for Pre-Closing Contamination at any Active Facility in accordance with
applicable Environmental Laws in effect as of the Sign-Off Date; PROVIDED,
HOWEVER, that Seller may dispute through any legal means any directive or
requirement of a Governmental Authority, if Seller concludes in good faith that
such directive or requirement is not supported by Environmental Law; and
PROVIDED, FURTHER, that Seller shall not be required to perform any Remedial
Action Work at a leased Active Facility if Purchaser would not otherwise be
required to perform such work pursuant to the terms of Purchaser's lease for
such Active Facility. Notwithstanding Seller's undertaking hereunder, (i) for
any contamination prior to Closing that was caused by any Third Party, Seller
shall conduct the Remedial Action Work and Seller shall retain the right to
pursue such Third Party to compel such Third Party to perform such Remedial
Action Work; PROVIDED, HOWEVER, that Purchaser shall have the right, but not the
obligation, to join and participate in the pursuit of such Third Party, at its
expense, PROVIDED, FURTHER, that neither Seller nor Purchaser shall pursue any
such Third Party in a manner that will be detrimental to the rights of the other
Party; and (ii) regarding any underlying leases of an Active Facility (wherein
Seller is or was a lessee), this Section does not confer any rights upon, or
create any benefits for, any Third Party lessor.
(c) SELLER'S CONTROL. Subject to Section 4(g) hereof, Seller
shall have the exclusive right to manage and control all Remedial Action Work
undertaken pursuant to this Agreement; PROVIDED, HOWEVER, that Seller shall keep
Purchaser reasonably informed of the
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progress of all Remedial Action Work at any Active Facility. Purchaser shall
have the right (but not the obligation) to observe any such Remedial Action Work
and on reasonable notice (normally not less than forty-eight (48) hours in
advance of sampling) to obtain split samples during Seller's performance of any
Remedial Action Work at any Active Facility. Purchaser and Seller shall provide
each other with copies of such split sampling test results promptly after the
results are received.
(d) COMPLETION OF WORK. Remedial Action Work with respect to
Pre-Closing Contamination shall be deemed complete upon delivery to Purchaser of
either (i) a written statement by a Governmental Authority with jurisdiction
over the Pre-Closing Contamination under applicable Environmental Laws to the
effect that no further Remedial Action Work (exclusive of long-term monitoring
of completed remedial work) is required under applicable Environmental Laws, or
(ii) in the event that such Governmental Authority declines to provide a written
statement, a certification of an independent consultant, mutually acceptable to
Purchaser and Seller for the purpose of this certification, to the same effect.
Such statement or certification may be conditioned on the existence of any
Exposure Restriction; PROVIDED, HOWEVER, that Seller shall retain all financial
obligations and financial assurance requirements, if any, for any monitoring or
maintenance necessary to maintain the validity of any Exposure Restriction
established pursuant to this Agreement. The earlier of the dates on which the
Governmental Authority issues such written statement or Purchaser receives such
certification of an independent consultant for that Facility shall be the
"SIGN-OFF DATE" for the Remedial Action Work in issue.
(e) EXPOSURE RESTRICTION.
(i) Purchaser acknowledges that in Seller's performance of
Remedial Action Work at an Active Facility owned by a Purchaser Entity,
Seller may propose and apply remedial or corrective action standards
(including risk-based corrective action standards) and/or the use of
engineered or institutional exposure controls (such as restrictions on
the use of the property or restrictions on the use of groundwater) at
such Active Facility that are predicated upon the continued
non-residential use of such Active Facility consistent with the
existing zoning as of the Closing Date, including recognition of the
institutional controls set forth in EXHIBIT B to this Agreement
("EXPOSURE RESTRICTION" or multiple "EXPOSURE RESTRICTIONS"); PROVIDED,
HOWEVER, that any engineering controls utilized as part of any Exposure
Restrictions shall not interfere, in any material manner, with
Purchaser's continued operation of the Active Facility as the Active
Facility has been operated as well as any development by Purchaser for
any future general manufacturing and general industrial uses consistent
with the existing zoning as of the Closing Date.
(ii) Purchaser shall have the right to obtain from Seller a
recordable full and unconditional release of any Exposure Restriction
proposed or imposed pursuant to this Section by entering into a written
agreement with Seller to assume liability for and to Indemnify the
Seller Entities, pursuant to the terms of Section 2(b) of this
Agreement, against any Loss in connection with such release. Exposure
Restrictions shall run with the land for the benefit of the Seller
Entities and shall bind Purchaser, its successors, assigns and all
future owners of such Active Facility, and their respective directors,
officers, employees, contractors, agents, representatives, lessees,
licensees, invitees, and
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any user or occupant of all or any portion of such Active Facilities,
and shall continue after the Sign-Off Date, unless and until released
as set forth in this Section.
(iii) Seller's obligations to complete any Remedial Action
Work directly occasioned by the future development of all or any
portion of an Active Facility as provided above shall survive past the
Sign-Off Date.
(f) RECORDING OF EXPOSURE RESTRICTIONS. On Seller's request
and at Seller's cost, Purchaser will record in the appropriate governmental
records any declaration or agreement of restrictive covenant to impose use
restrictions necessary to implement an Exposure Restriction required by Remedial
Action Work at any Active Facility.
(g) SELF-HELP. Nothing in this Agreement shall prevent a Party
from (i) taking any reasonable and prudent interim measures in the event of an
imminent and substantial endangerment to human health, welfare or the
Environment, without prejudice to that Party's rights to seek indemnification
under this Agreement, (ii) taking any reasonable action for which that Party
does not elect to seek indemnification, in whole or in part, under this
Agreement (provided that said action does not materially prejudice or interfere
with the other Party's rights and/or obligations hereunder) and (iii) taking any
action lawfully required or directed by any Governmental Authority of competent
jurisdiction, without prejudice to that Party's right to seek indemnification
therefor under this Agreement (so long as that Party provides reasonably prompt
notice of such action to the other Party).
ARTICLE 5. ALLOWABLE SITE RESTORATION COST ALLOCATION.
(a) ADVANCE AGREEMENT. As a condition to Closing, Seller and
Purchaser will enter into appropriate advance agreements between themselves and
the United States Government regarding the allocation of certain Allowable Site
Restoration Costs, which are subject to the terms of the ASBCA Settlement
Agreement, expended by Seller after the Closing Date, so that Seller will
obtain, through Purchaser, as Seller's collection agent, Full Reimbursement of
such Allowable Site Restoration Costs as provided for in Section 11.5 of the
ASBCA Settlement Agreement. To effect Seller's receipt of Full Reimbursement,
Purchaser shall account for allowable Transferred Site Restoration Costs by
allocation to Purchaser's contracts and subcontracts, consistent with Section
11.5 of the ASBCA Settlement Agreement. Seller and Purchaser will obtain
mutually acceptable terms in their advance agreements including the following
key provisions:
(i) A limitation on the amount of annual Allowable Site
Restoration Costs that will be allocated to Purchaser for its
collection and payment on to Seller in the amount of fifty percent
(50%) of the Allowable Site Restoration Costs incurred by Seller after
the Closing Date during each fiscal year;
(ii) Provision for Carry Forward Amounts (as defined below);
and
(iii) Recognition by the United States Government that this
Agreement and the implementing advance agreements provide for Full
Reimbursement of the Allowable Site Restoration Costs allocable to the
Business transferred to Purchaser pursuant to the Asset Purchase
Agreement; and
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(iv) Acceptance by the United States Government of the methods
stated in this Article 5 by which Seller shall estimate, allocate and
adjust the transferred Allowable Site Restoration Costs that it is to
incur and Purchaser is to collect as its agent.
(b) ANNUAL DOLLAR LIMITS. In addition to the fifty percent
(50%) limitation on allocation set forth in Section 5(a)(i) above, the Allowable
Site Restoration Costs transferred to Purchaser for reimbursement on Seller's
behalf in a single year shall be limited as follows:
(i) One Million, Six Hundred and Sixty six Thousand, Six
Hundred and Sixty six Dollars ($1,666,666) for that portion of the
Seller fiscal year 2001 that commences with the Closing Date and
concludes on November 30, 2001; and
(ii) Ten Million Dollars ($10,000,000) for each Seller fiscal
year beginning in FY2002 and ending in FY2005; and,
(iii) Eight Million Dollars ($8,000,000) for each Seller
fiscal year beginning in FY2006 and ending in FY2010; and
(iv) Six Million dollars ($6,000,000) for each Seller fiscal
year beginning in FY2011 and ending in FY2028.
(c) CARRY FORWARD AMOUNT. If the allocable portion of Seller's
Allowable Site Restoration Costs transferred to Purchaser exceeds the Annual
Dollar Limits set forth in Section 5(b) above, then Purchaser shall collect and
remit such excess as follows: Seller will defer, on an interest free basis,
Allowable Site Restoration Costs that exceed the applicable Annual Dollar
Limits. Any amount so deferred shall be a "CARRY FORWARD AMOUNT." Carry Forward
Amounts shall be deferred until such year or years that they can be absorbed
within the Annual Dollar Limits; provided, however, that no Carry Forward Amount
shall be carried forward after Seller's FY 2028.
(d) BUDGETING AND FORWARD PRICING.
(i) With respect to Seller's fiscal year beginning December 1,
2001, Seller will provide Purchaser with revised estimated Allowable
Site Restoration Costs covering the Seller's fiscal years 2002 through
2004, not later than 30 days after the Closing Date.
(ii) No later than September 30 of each calendar year,
beginning with calendar year 2002 with respect to Seller's fiscal years
2003 and thereafter for the duration of this Agreement, Seller will
provide Purchaser with estimated Allowable Site Restoration Costs for
each of the next three (3) Seller fiscal years. In addition, Seller
will promptly notify Purchaser of any material change in the estimates
as soon as practical after Seller learns that a change is probable and
quantifiable.
(e) PAYMENT. As Seller's agent, Purchaser will collect and
remit to Seller transferred Allowable Site Restoration Costs in accord with the
procedure below.
(i) At Closing, Seller will provide Purchaser with an
estimated allocation of FY 2001 Allowable Site Restoration Costs, to be
incurred by the Seller between the
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Closing Date and the end of Seller's FY 2001, that are allocable to the
Business. Within Thirty (30) days after the Closing Date, but in no
event later than ten (10) days prior to the close of Seller's FY 2001,
Purchaser will remit to Seller by wire transfer the lesser of (x) one
hundred percent (100%) of such estimated allocation of Seller's FY 2001
Allowable Site Restoration Costs allocable to the Business, or (y) the
FY 2001 annual limit as set forth in Section (b)(i), above.
(ii) On the twenty-fifth (25th) day of the months of March,
June, September, and December (or, if the 25th day is not a business
day, the first business day thereafter), Purchaser will remit to Seller
by wire transfer twenty-five percent (25%) of the current annual
estimated allocation of Allowable Site Restoration Costs allocable to
the Business, up to the applicable annual limit as set forth in Section
(b) (ii), (iii), or (iv), above, as applicable.
(iii) No later than the twentieth (20th) day of each December
(or, if the 20th day is not a business day, the first business day
thereafter), Seller will submit to Purchaser the final amount of
Seller's actual Allowable Site Restoration Costs for Seller's preceding
fiscal year. The amount will be certified by an officer of Seller.
(iv) No later than the fifteenth (15th) day of each January
(or, if the 15th day is not a business day, the first business day
thereafter), Purchaser will remit to Seller by wire transfer the excess
of actual Allowable Site Restoration Costs allocable to the Business
for Seller's preceding fiscal year over the aggregate amount of
payments made by Purchaser pursuant to Section 5(e)(i) or (ii), as
applicable, for such preceding fiscal year, if any, if the amount of
such excess is less than the Annual Dollar Limit. Purchaser shall
increase the transferred Allowable Site Restoration Costs it includes
in allocations to its contracts and subcontracts by the amount of such
remittance, if any, and if necessary shall adjust its overhead rates
accordingly.
(v) No later than the fifteenth (15th) day of each January
(or, if the 15th day is not a business day, the first business day
thereafter), Seller shall notify Purchaser of the aggregate amount of
payments made by Purchaser pursuant to Section 5(e)(i) or (ii), as
applicable, for the preceding fiscal year that exceed the actual
Allowable Site Restoration Costs allocable to the Business for such
preceding fiscal year, if any. Seller shall decrease the allocation of
transferred Allowable Site Restoration Costs for the next fiscal year
by such excess amount, if any, and Purchaser shall adjust, if
necessary, its overhead rates accordingly.
(vi) No later than fifteen (15) working days following the
execution of final overhead settlement agreements between Seller and
the United States for each of the Seller's fiscal years covered by this
Agreement, Seller will notify Purchaser of differences, if any, between
Allowable Site Restoration Costs included in the final overhead
settlement agreement and the amount submitted to Purchaser as required
by Section 5(e)(iii).
(1) If Allowable Site Restoration Costs included in
final overhead settlement agreements are greater than the
amount submitted to
Page 11 of 24
Purchaser as required by Section 5(e)(iii), but less than the
applicable Annual Dollar Limit, Purchaser will remit the
difference, up to the applicable Annual Dollar Limit, to
Seller by wire transfer within thirty (30) days of having
received notification of the difference. If and to the extent
of such difference, Purchaser shall increase its allocation to
its contracts and subcontracts for the next open fiscal year,
i.e., one for which it has not
concluded a final overhead settlement with the United States, and, if necessary,
shall adjust its overhead rates accordingly.
(2) If Allowable Site Restoration Costs included in
final overhead settlement agreements are less than the amount
submitted to Purchaser as required by Section 5(e)(iii), and
less than the applicable Annual Dollar Limit, Seller shall
decrease the transferred Allowable Site Restoration Costs for
the next fiscal year by such difference and notify Purchaser
of such adjustment, in order that Purchaser shall effect
appropriate reductions in
allocations to its contracts and subcontracts and, if necessary, adjust affected
overhead rates.
(vii) Subject to the foregoing, for each full fiscal year
covered by this Agreement, Purchaser will remit to Seller an amount
equal to the lesser of the Allowable Site Restoration Costs allocated
to Purchaser, , or the applicable Annual Dollar Limit.
(viii) Notwithstanding any other provision of this Article 5,
Purchaser's obligations to remit Allowable Site Restoration Costs to
Seller are limited to the amount of such Costs that Seller is permitted
to transfer to Purchaser, for Purchaser to allocate to its contracts
and subcontracts, in accordance with the ASBCA Settlement Agreement and
any related advance agreements with the United States Government, and
applicable laws and regulations for reimbursement through allocation to
United States Government Contracts, commercial contracts, and other
cost objectives.
(f) AZUSA SITE OPTION: SELLER'S INDEMNIFICATION OF PURCHASER.
In addition to the foregoing, and if and only if the United States Government
exercises the option reserved to it in Section 6(b) of the ASBCA Settlement
Agreement to terminate the application of the ASBCA Settlement Agreement to Site
Restoration Costs incurred at Seller's Azusa Site, Purchaser shall have no
obligation to continue to collect and remit Allowable Site Restoration Costs
except to the extent and in the amount(s) approved in advance by the United
States Government. In the event that the consequence of such termination is to
increase the percentage of allowable Site Restoration Costs recognized by the
United States Government pursuant to section 3.2 of the ASBCA Settlement
Agreement, then Seller will indemnify and hold harmless Purchaser from and
against any directly resulting losses as may occur if such increased costs are
not recoverable to Purchaser.
(g) GOVERNMENT DISPUTES. Seller shall indemnify Purchaser and
hold it harmless in the event of any dispute between Seller and the United
States Government regarding the amount of Allowable Site Restoration Costs or
the recovery by Seller of such costs through the instrumentality of Purchaser's
collection as provided herein, or in respect to any claims made
Page 12 of 24
by the Government against Seller in respect to such costs. In such event,
Purchaser shall ensure that Seller receives prompt written notice of any such
dispute or claim and Seller shall have such right and opportunity as is
permitted under law to respond, oppose, dispute or take an appeal to the
underlying United States Government action, in the name of Purchaser, provided
that Seller shall be solely responsible for the fees, costs and expenses of such
action. In regard to such matters, Seller may not compromise or settle a United
States Government claim, or enter a consent to judgment, where such would affect
the rights, obligations or entitlements of Purchaser in a material fashion,
without the consent of Purchaser, which consent shall not be unreasonably
withheld or delayed, it being understood that it is not unreasonable to withhold
consent where a release in favor of Purchaser is not obtained.
ARTICLE 6. SELLER'S ACCESS AFTER CLOSING. For purposes of this
Agreement, Seller's access to the Active Facilities after the Closing Date shall
be subject to the following terms and conditions.
(a) LIMITED EASEMENT. Upon the terms and subject to conditions
of this Agreement and United States Government security requirements, Purchaser
hereby grants Seller a non-exclusive limited easement to enter onto the Active
Facilities for the sole purpose of allowing Seller and its respective agents,
employees, contractors, consultants and invitees (collectively,
"REPRESENTATIVES") to conduct Remedial Action Work, including (i) access to such
Active Facilities for visual inspection and for the purpose of taking soil
samples and water samples from existing and/or future xxxxx; and (ii) at
Seller's request, access for Governmental Authorities to review Seller's
Remedial Action Work. Subject to the terms and conditions of this Agreement and
Purchaser's approval, which approval shall not be unreasonably withheld or
delayed, Seller shall have the right: (i) to conduct sampling and to install,
operate and maintain remediation and monitoring devices at, on, or under the
Active Facilities, including soil removal equipment, monitoring xxxxx, and
groundwater recovery and treatment systems and to store or stage equipment or
materials at such Active Facilities; (ii) to use storage facilities, loading
facilities, docks, rail sidings and other plant facilities; and (iii) to use
wastewater treatment plants and similar waste treatment and disposal systems on
the Active Facilities, for the purposes of disposal of well development water
and/or treated groundwater; provided that (w) such facilities or property are
intended for and capable, at the time use thereof is sought by Seller, of being
used for the purposes desired by Seller without alteration or improvement; (x)
Seller shall reimburse Purchaser on a monthly basis for all incremental
out-of-pocket costs incurred by Purchaser as a result of Seller's use of such
facilities and property; (y) Seller's use of such facilities or property shall
not violate any Environmental Laws or contribute to or cause a violation of
Environmental Laws by Purchaser. Except as provided in this Section, Seller
shall not be obligated to pay Purchaser any rent or fee for the right to use the
facilities as described above.
(b) COOPERATION. Purchaser shall use reasonable efforts not to
interfere with any Remedial Action Work performed by Seller. Purchaser shall not
impair Seller's eligibility and/or ability to recover funds from any Third
Party, including without limitation, the United States Government nor impair
Seller's ability to comply with Environmental Laws. Purchaser shall cooperate
with and reasonably assist Seller in obtaining any required permits and
approvals for Remedial Action Work and in Seller's cost-recovery efforts. To the
extent Purchaser incurs more than five thousand dollars ($5,000.00) for such
cooperation, Seller shall reimburse Purchaser for such costs. Seller shall use
reasonable efforts to perform Remedial Action Work in
Page 13 of 24
a manner which minimizes disruption to Purchaser's business activities and to
the Active Facilities. During the course of Seller's performance of Remedial
Action Work at any Active Facility pursuant to this Agreement, Seller shall take
all steps which are reasonably necessary to prevent injury to persons or damage
to such Active Facilities resulting from such Remedial Action Work.
(c) RESTORATION. Upon Seller's completion of any drilling or
installation of any equipment to perform Remedial Action Work at any Active
Facility, Seller shall restore the surrounding surface of such Active Facility
affected by such drilling or installation to substantially the same condition
which existed prior to such drilling or installation. Promptly upon Seller's
completion of Remedial Action Work at any Active Facility, and to the extent
permitted by Environmental Law, Seller shall decommission all monitoring xxxxx
and remove all equipment installed by Seller to perform such Remedial Action
Work, and restore the surface of the Active Facility to substantially the same
condition which existed immediately prior to such removal.
(d) REPORTING. Seller and Purchaser shall consult on a regular
basis so that Seller may advise Purchaser on the progress of Remedial Action
Work and inform Purchaser of the anticipated sampling schedule, scope and any
applicable work plan. Promptly upon submittal or receipt by Seller, and subject
to any attorney-client or other privileges, Seller shall provide to Purchaser in
a timely manner copies of all final reports (including sampling data), proposed
or final work plans, proposed or final health and safety plans, and notices
received from or submitted to any Governmental Authority pertaining to Remedial
Action Work. On Purchaser's reasonable request, and subject to any
attorney-client or other privileges, Seller shall provide Purchaser or
Purchaser's representatives with summary information, including, but not limited
to, all available analytical data and reports, relevant to the status of the
Remedial Action Work at any Active or Former Facility or Disposal Site. On
Purchaser's reasonable request, Seller shall assist Purchaser in explaining such
information to any lender or insurer of Purchaser or to any prospective
purchaser of an Active Facility.
(e) EQUIPMENT DAMAGE. Purchaser agrees to be responsible and
reimburse Seller for any Loss caused by Purchaser, its employees, agents,
invitees, lessees, occupants of any Active Facilities, contractors, successors
or assigns to any vehicle, property or equipment installed or otherwise used by
Seller or its contractors in the performance of any Remedial Action Work.
ARTICLE 7. PROSPECTIVE PURCHASER AGREEMENT
(a) AGREEMENT. Subject to the terms of the Asset Purchase
Agreement, Purchaser shall use its best efforts to obtain, at its sole cost and
expense, a PPA from U.S. EPA with respect to liability under the Comprehensive
Environmental Response, Compensation and Liability Act, 40 U.S.C. ss. 9601 ET
SEQ., for Pre-Closing Contamination on, in or under the Azusa Facility and the
obtaining of such a PPA is a condition to Closing. The PPA shall be
substantially in the form set forth in EXHIBIT C to this Agreement.
(b) COOPERATION. Seller shall, at its own expense, reasonably
assist Purchaser in its efforts to obtain the PPA. Such cooperation shall
include providing any relevant non-
Page 14 of 24
privileged documentation requested by Purchaser or U.S. EPA and attending
meetings with U.S. EPA as reasonably requested by Purchaser.
ARTICLE 8. GENERAL OBLIGATIONS.
(a) MUTUAL COOPERATION. Purchaser and Seller shall cooperate
with respect to the undertaking of their mutual obligations pursuant to this
Agreement, including providing each other reasonable access to relevant records
and officers and employees with knowledge concerning the matters at issue. The
Parties shall seek to perform all Remedial Action Work in a manner that
minimizes the overall cost of such Remedial Action Work, to the extent
practicable and consistent with applicable Environmental Laws and Exposure
Restrictions.
(b) CONFIDENTIALITY. The terms of this Agreement and any
information regarding Pre-Closing Exposures or Pre-Closing Contamination shall
at all times be kept confidential, except as needed in the course of Remedial
Action Work, as provided herein or as the law may otherwise require. Purchaser
may disclose or distribute the terms of this Agreement and any information
regarding Pre-Closing Exposures or Pre-Closing Contamination or copies thereof
to any Third Party with a need to know and who agrees to be bound by this
confidentiality provision. Purchaser shall immediately forward to Seller a copy
of any notices or correspondence Purchaser receives from any Person relating to
Pre-Closing Exposures or Pre-Closing Contamination. Where Purchaser believes it
is required by Environmental Laws to submit a report to a Governmental
Authority, Purchaser shall provide Seller reasonable advance written notice
thereof.
(c) FURTHER ASSURANCES. Each Party agrees to execute
additional instruments and documents and do all such further things as may
reasonably be required to be performed by a Party in order to carry out the
intent of this Agreement.
ARTICLE 9. DISPUTE RESOLUTION.
(a) NEGOTIATION. The Parties shall attempt in good faith to
resolve any disputes arising out of or relating to this Agreement. In the event
of a dispute, the Parties shall exchange relevant information and attempt to
resolve the dispute prior to any Party instituting any mediation or dispute
resolution proceedings, if the matter cannot be resolved, either Party may
request mediation of the dispute.
(b) ARBITRATION.
(i) Except in respect to "GOVERNMENTAL DISPUTES" as are
addressed in Article 5(g) hereof, if a dispute arises between the
Parties hereto regarding the implementation of the Allowable Site
Restoration Cost Allocation and that dispute cannot be resolved within
a reasonable period of time, either Party hereto may notify the other
Party that the dispute is to be submitted to arbitration. In the event
that notice of submission of the dispute to arbitration is provided by
either Party, the Parties shall each select an arbitrator reasonably
qualified to arbitrate such dispute who shall then select a third
arbitrator agreeable to each (the "INDEPENDENT ARBITRATORS"). The
Independent Arbitrators shall have the right to obtain the assistance
of legal counsel mutually acceptable to both Parties in arbitrating the
dispute, if the Independent Arbitrators
Page 15 of 24
determine that such assistance is necessary. Notwithstanding any other
provision hereof, the Parties shall each bear one-half of the cost of
the Independent Arbitrators and their legal counsel, if any. If the
Independent Arbitrators selected by the Parties cannot agree on a third
Independent Arbitrator, they shall apply to the American Arbitration
Association for the appointment of a third Independent Arbitrator. The
Independent Arbitrators shall establish an expedited procedure for
hearing and resolving the dispute. Unless the Parties agree otherwise,
the Independent Arbitrators shall be required to render a decision
resolving the dispute by a majority decision, with a written opinion
stating the reasons therefor, no more than sixty (60) days after the
third Independent Arbitrator is retained. The Independent Arbitrators
shall be required to adopt either the position advocated by Seller
Entities, or the position advocated by Purchaser Entities, and shall
not order any other remedy. The decision of the Independent Arbitrators
shall be final and binding and a court of competent jurisdiction may
enter judgment thereon.
(ii) If a dispute arises between the Parties hereto regarding
the implementation of the Remedial Action Work and that dispute cannot
be resolved within a reasonable period of time, either Party hereto may
notify the other Party that the dispute is to be submitted to
arbitration. In the event that notice of submission of the dispute to
arbitration is provided by either Party, the Parties shall each select
an environmental consultant or engineer reasonably qualified to
arbitrate such dispute who shall then select a third consultant or
engineer agreeable to each (the "INDEPENDENT CONSULTANTS"). The
Independent Consultants shall have the right to obtain the assistance
of legal counsel mutually acceptable to both Parties in arbitrating the
dispute, if the Independent Consultants determine that such assistance
is necessary. Notwithstanding any other provision hereof, the Parties
shall each bear one-half of the cost of the Independent Consultants and
their legal counsel, if any. If the Independent Consultants selected by
the Parties cannot agree on a third Independent Consultant, they shall
apply to the American Arbitration Association for the appointment of a
third Independent Consultant. The Independent Consultants shall
establish an expedited procedure for hearing and resolving the dispute.
Unless the Parties agree otherwise, the Independent Consultants shall
be required to render a decision resolving the dispute by a majority
decision, with a written opinion stating the reasons therefor, no more
than sixty (60) days after the third Independent Consultant is
retained. The Independent Consultants shall be required to adopt either
the position advocated by Seller Entities, or the position advocated by
Purchaser Entities, and shall not order any other remedy. The decision
of the Independent Consultants shall be final and binding and a court
of competent jurisdiction may enter judgment thereon.
(c) EXCLUSIVE REMEDY. Any claim or cause of action based on,
relating to or arising out of any of the matters contemplated under
this Agreement must be brought by either Party in accordance with the
provisions of this Agreement, whether such claim arises under any law,
contract, tort or otherwise; PROVIDED HOWEVER, that if the Independent
Arbitrators determine that an appropriate remedy for a dispute
regarding the implementation of the Allowable Site Restoration Cost
Allocation should be addressed pursuant to the disputes procedures of
the ASBCA Settlement, then the Parties shall cooperate as required and
in accordance with Article 5(g) (for example, through sponsorship of an
appropriate appeal before the ASBCA) to implement those disputes
procedures and applicable remedies. In consideration of Seller's
Page 16 of 24
covenants and agreements hereunder, Purchaser hereby waives, releases,
remises and forever discharges any right or cause of action against
Seller with respect to any and all Losses arising out of or relating to
the presence or Release of any Hazardous Substances in connection with
the Business, including Pre-Closing Contamination, Pre-Closing
Exposures and/or Seller's performance of any Remedial Action Work
therefor.
ARTICLE 10. TEN-YEAR REOPENER.
(a) The agency established by Article 5(e) hereof, by which
Purchaser is responsible for collection and payment of Allowable Site
Restoration Costs, shall be discontinued upon the occurrence of all of the
following conditions:
(i) This Agreement shall have been in effect for ten full
fiscal years following the Closing;
(ii) Except as to non-material completion of existing
contracts, Purchaser, its parent or affiliates, shall have discontinued
all operations at the Azusa Site and shall no longer be conducting any
material amount of the purchased Business at any other site, or
Purchaser, its parent or affiliates, shall no longer be performing any
material contract or subcontract for the United States at the Azusa
Site and shall no longer be conducting any material contract of the
purchased Business at any other site; and
(iii) Seller, its parent, affiliates or successor in interest,
shall remain in business as a viable and going concern and Seller shall
at such time be a contractor for the United States.
(b) Upon satisfaction of the conditions set forth in Article
10(a), Purchaser shall give Seller notice within sixty (60) days after the end
of the tenth (10th) full fiscal year during which this Agreement has been in
effect. Thereafter, Seller shall resume full and direct responsibility for the
continued collection of Allowable Site Restoration Costs from the United States
Government. The Parties will cooperate to effect a transition of such
responsibilities and shall provide timely notice of the transition to the
cognizant oversight authorities of the United States Department of Defense.
Notwithstanding any provision of this Article 10 to the contrary, no transfer of
such responsibilities shall occur until and unless approved by the United
States, acting through an authorized Defense Contracting Executive (or
equivalent).
ARTICLE 11. TRANSFER.
(a) If, after the Closing Date and prior to the relevant
Sign-Off Date for an Active Facility, there is a Transfer of that Active
Facility to any Person, then Seller's obligations and liabilities as set forth
in this Agreement for that Active Facility shall not be assigned by Purchaser
and shall not extend to such Person unless and until the following occur: (i)
Purchaser has given Seller at least thirty (30) days advance written notice of
its intent to Transfer that Active Facility; and (ii) the transferee has
executed a written agreement in a form reasonably acceptable to Seller agreeing
to be bound by the obligations, duties, restrictions and liabilities of
Purchaser as set forth herein pertaining to that Active Facility. Purchaser
shall in no event be released of its obligations to Seller hereunder by virtue
of any Transfer. This Agreement is not
Page 17 of 24
intended to, nor shall it, be construed as providing or conferring any rights in
or benefits to any Person not party to this Agreement.
(b) If, after the Closing Date and prior to the relevant
Sign-Off Date for an Active Facility, there is a Transfer of the Active Facility
and the accompanying Business as it exists at that time to any Person, then
Seller's obligations and liabilities as set forth in this Agreement for that
Active Facility shall not be assigned by Purchaser and shall not extend to such
Person unless and until the following occur: (i) Purchaser has given Seller at
least thirty (30) days advance written notice of its intent to Transfer that
Active Facility; (ii) the transferee has executed a written agreement in a form
reasonably acceptable to Seller agreeing to be bound by the obligations, duties,
restrictions and liabilities of Purchaser as set forth herein pertaining to that
Active Facility; and (iii) Seller, in its reasonable discretion, has consented
to the Transfer and the transferee. If (i), (ii) and (iii) occur and the
Transfer takes place, Purchaser shall be released of its obligations to Seller
hereunder. This Agreement is not intended to, nor shall it, be construed as
providing or conferring any rights in or benefits to any Person not a party to
this Agreement.
ARTICLE 12. NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given: (a) if personally
delivered, when so delivered; (b) if mailed, two business days after having been
sent by registered or certified mail, return receipt requested, postage prepaid
and addressed to the intended recipient as set forth below; (c) if given by
telecopier, once such notice or other communication is transmitted to the
telecopier number specified below and the appropriate answer back or telephonic
confirmation is received, provided that such notice or other communication is
promptly thereafter mailed in accordance with the provisions of clause (b)
above; or (d) if sent through a reputable overnight delivery service in
circumstances in which such service guarantees delivery the following day.
If to Purchaser:
Office of the General Counsel
Northrop Grumman Systems Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attention: W. Xxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Seller:
Aerojet - General Corporation
Page 18 of 24
Legal Department, 0106
If by mail: If by courier:
X.X. Xxx 00000 Xxxxxxx 00 and Aerojet Rd.
Sacramento, CA 95813-6000 Xxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Any Party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any Party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving notice in the manner
herein set forth.
ARTICLE 13. WAIVERS AND AMENDMENTS.
(a) AMENDMENTS. Any provision of this Agreement may be amended
or waived if, and only if, such amendment or waiver is (i) in writing, (ii)
expressly references this Section of the Agreement and (iii) is signed by
Purchaser and Seller.
(b) WAIVER. No waiver by either Party of any default,
misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or affect
in any way any rights existing by virtue of any prior or subsequent occurrence.
No single or partial exercise by either Party of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
ARTICLE 14. MISCELLANEOUS. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each Party shall have signed and received
a counterpart hereof signed by the others. This Agreement shall be binding upon
and inure to the benefit of the Parties and their respective Entities.
ARTICLE 15. SEVERABILITY. If any provision of this Agreement, or the
application thereof to any Active or Inactive Facility, Person, place or
circumstance, shall be held by a court of competent jurisdiction to be invalid,
unenforceable or void, the remainder of the Agreement and
Page 19 of 24
such provisions as applied to other Active or Former Facilities, Disposal Sites,
Persons, places and circumstances shall remain in full force and effect.
ARTICLE 16. GOVERNING LAW. This Agreement shall be governed, construed,
applied and enforced in accordance with the law of the State of New York.
Notwithstanding the foregoing, the Environmental Laws of the United States and
the State in which an Active or Inactive Facility or Disposal Site is located
shall apply for purposes of determining the extent of any required Remedial
Action Work for such site, and the common law of Federal procurement contracts
shall apply to this Agreement for purposes of determining the obligations of the
parties under Article 5 of this Agreement.
ARTICLE 17. CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the Parties to express their mutual intent,
and no rule of strict construction shall be applied against either Party.
Whenever required by the context, any gender shall include any other gender, the
singular shall include the plural and the plural shall include the singular. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the word "including" is used in this Agreement, it shall be deemed to mean
"including, without limitation, but not limited to" or other words of similar
import.
ARTICLE 18. SURVIVAL. The terms and provisions of this Agreement shall
survive the Closing of this transaction and the filing of record of the Deed for
any Active Facility.
Page 20 of 24
IN WITNESS WHEREOF, the parties hereto have caused this Environmental
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
NORTHROP GRUMMAN SYSTEMS AEROJET - GENERAL CORPORATION
CORPORATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------ -----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
------------------------------- ------------------------------
Title: Corporate Vice President Title: Treasurer
------------------------------ -----------------------------
& Secretary
Page 21 of 24
EXHIBIT A
ASBCA SETTLEMENT AGREEMENT
See attached.
Page 22 of 24
EXHIBIT B
ENVIRONMENTAL RESTRICTION
For any Active Facility at which an Exposure Restriction is to be imposed by
Purchaser and recorded after the Closing Date in a declaration and/or agreement
of restrictive covenant, said instrument shall include the following use
restrictions:
(i) the Property shall be used or occupied (if used or occupied at all) for
manufacturing or other industrial purposes consistent with existing zoning at
Closing; and
(ii) no water supply xxxxx of any kind (including without limitation water xxxxx
used for drinking, bathing or other human consumption purposes and water xxxxx
used for livestock, farming or irrigation) shall be installed or used on the
Property; provided, however, that the Exposure Restriction does not prohibit the
installation or use of any compliance, monitoring, recovery or extraction xxxxx
or similar devices used for or related to the performance of any Remedial Action
Work on the Property now or in the future;
or such other similar land use and/or exposure restrictions as may be reasonably
required by a Governmental Authority with jurisdiction over the Remedial Action
Work; PROVIDED, HOWEVER, that any engineering controls utilized as part of any
Exposure Restrictions shall not interfere, in any material manner, with
Purchaser's continued operation of the Active Facility as the Active Facility
has been operated as well as any development by Purchaser or Purchaser's
successors in interest for any future general manufacturing and general
industrial uses consistent with the existing zoning as of the Closing Date.
Page 23 of 24
EXHIBIT C
FORM OF PROSPECTIVE PURCHASER AGREEMENT
See attached.
Page 24 of 24
