Exhibit 10.19
Environmental Side Letter
March 11, 1997
National Semiconductor Corporation
Re: Asset Purchase Agreement dated March 11, 1997,
by and between National Semiconductor Corporation
("National") and Fairchild Semiconductor
Corporation ("Fairchild") ("Asset Purchase
Agreement")
Gentlemen and Ladies:
This will confirm our agreement with respect to certain
environmental matters relating to the West Jordan, Utah facility
("West Jordan Facility"), the South Portland, Maine facility
("South Portland Facility") the Cebu, Philippines facility ("Cebu
Facility") and the Penang, Malaysia facility ("Penang Facility")
(collectively referred to as the "Facilities"). Any terms used
but not defined herein have the meaning ascribed to them in the
Asset Purchase Agreement.
Subject to and in addition to the terms of the Asset
Purchase Agreement, the Parties agree to the following:
National has been conducting Remediation at the South
Portland and West Jordan Facilities before and up to Closing.
After the Closing Fairchild will perform or arrange for the
performance of the Remediation which was being conducted by
National at the South Portland and West Jordan Facilities.
Fairchild will perform the investigation and
decommissioning of the Dynacraft DCIP1 (the "DCIP1
Decommissioning") area at the Penang Facility which has already
been commenced by National and an investigation and clean-up of
the oil release near the powerhouse at the Cebu Facility.
National and the Maine Department of Environmental
Protection ("MDEP") are in the process of restating the
Administrative Agreement relating to the South Portland Facility
to incorporate the amendments that have occurred since the
original Administrative Agreement was signed. In connection with
such amendment, the parties have agreed that National will remain
the ordered party and it has so informed MDEP by letter dated
January 30, 1997. If the MDEP or other Governmental Authority
determines that new, additional or modified permits or approvals,
the cost or impact of which would be significant, Fairchild
agrees that, if required by the MDEP or other Governmental
Authority to avoid such permit obligations, Fairchild may be
added as an additional ordered party.
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1. Administrative Agreement Regarding Groundwater Improvement by and between
Fairchild Camera and Instrument Corporation and the State of Maine Board
of Environmental Protection (hereinafter referred to as the "MDEP"),
effective June 8, 1983, as subsequently amended (the "Administrative
Agreement").
The parties agree that from and after the Closing Date
neither will deposit or stockpile additional soil, either
VOC-impacted or clean, at, on or about the other's portion of the
South Portland Facility. National agrees that if for any
commercially reasonable purpose related to the Business Fairchild
desires to excavate, move or alter the deposited and/or
stockpiled soil located on the Fairchild portion of the South
Portland Facility, National will, at National's sole cost and
expense, dispose of or arrange for the disposal of such soil in
full compliance with all applicable Environmental Laws, and will,
if permitted by Environmental Law, identify itself as the
generator of such soils.
National has agreed to prepay the presently anticipated
future costs of the Remediation projects at the Facilities.
Therefore, at Closing, National will pay Fairchild the present
value amount as set forth on Schedule I to pay the annual costs
of the Remediation projects at the National South Portland and
West Jordan Facilities and the costs specified on Schedule I for
the Cebu and Penang Facilities (the "Estimates" and each, an
"Estimate"). National will be responsible for any and all
losses, claims, demands, liabilities, obligations, causes of
action, damages, costs and expenses, fines or penalties
(including, without limitation, reasonable attorney fees and
other defense costs) asserted against or incurred by Fairchild
arising out of or relating to the Remediation projects
(including, without limitation, any resulting from amendments to
the Administrative Agreement), in excess of the applicable
Estimate on a pre-discounted basis whether or not the costs and
expenses were included in the Estimates. Fairchild will provide
National with annual updates of the costs incurred and an
accounting of the funds remaining for the Remediation projects
and will notify National reasonably promptly upon becoming aware
of any additional costs and expenses. Upon the completion of
each Remediation project, Fairchild will refund any amount of the
applicable Estimate not expended. Fairchild will not undertake
any new activity in connection with the aforementioned
Remediation projects which shall individually cost in excess of
$100,000 for which Fairchild intends to apply the prepaid amount
without the prior written consent of National, which consent
shall not be unreasonably withheld (taking into account
Fairchild's operations).
The parties agree to cooperate as necessary to
effectuate the agreements in this letter, including granting any
easements, if necessary. Fairchild will prepare and submit any
required submittals necessary in connection with the Remediation
projects; provided, however, that National shall execute any
documents for which its signature is required, and Fairchild will
provide National with copies of any final environmental reports
submitted to any Governmental Authority.
If a Governmental Authority determines that Fairchild
is not properly performing the Remediation at the South Portland
Facility or any other facility and if Fairchild fails to correct,
remedy, cure, appeal or contest such deficiency within such time
period as is reasonable under the circumstances (but in no event
in a time period in excess of the time provided by a Governmental
Authority) or demonstrate that the Governmental Authority's
concerns are unfounded, and a Governmental Authority determines
in writing that National is legally responsible for taking action
and the failure to do so will result in fines or penalties,
Fairchild will provide National access to such facility to
correct, remedy or cure such deficiency at National's sole cost
and expense. In connection with the foregoing, National agrees
to (1) provide Fairchild prior notice of its access requirements,
(2) inform Fairchild of any proposed activities prior to the
implementation thereof and provide Fairchild a reasonable
opportunity to review and comment on any such proposals prior to
their implementation, (3) perform activities so as not to
unreasonably interfere with Fairchild's operations, (4) keep
Fairchild reasonably informed about the progress of National's
activities, and (5) comply with all applicable Environmental Laws
and other laws and Fairchild's reasonable health and safety
requirements.
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To the extent either party is performing activities in
connection with the Remediation work it will: (i) perform such
work promptly, diligently and in a good and workmanlike manner
and in a manner consistent with industry standards relating to
such activities, (ii) comply with all laws, orders, rules and
regulations, including all Environmental Laws, and (iii) promptly
provide the other party with copies of (a) all agreements entered
into with any Governmental Authority and material correspondence
relating to such activities and (b) all contracts and agreements
with any third party in connection with such work (provided such
contract is for work in excess of $100,00), including (without
limitation) such contracts with contractors and consultants.
Fairchild will provide National reasonable access (upon prior
written notice) to Fairchild's facilities to inspect the progress
of such activities and to Fairchild's employees to discuss such
activities. National will provide Fairchild reasonable access to
monitoring wells on National's portion of the South Portland
Facility for monitoring pursuant to the Administrative Agreement.
National shall have the right to attend and participate in any
meetings with any Governmental Authority relating to the
Remediation project in connection with the South Portland
Facility or at any other facility because a Governmental
Authority determined that National is legally responsible for
performing Remediation as set forth above.
Each party will indemnify and hold harmless the other
(and all directors, officers, employees and agents thereof) from
all claims, liabilities, losses, expenses (including reasonable
attorney's fees) and costs arising out of or relating to its
negligence or willful misconduct or any of its agents,
contractors or employees in connection with the Remediation work
on the other party's property.
Please confirm your agreement to the above by signing
and returning a copy to the undersigned.
Very truly yours,
FAIRCHILD SEMICONDUCTOR CORPORATION
BY: KIRK P. POND
President and Chief
Executive Officer
The foregoing is hereby agreed to and accepted by:
NATIONAL SEMICONDUCTOR CORPORATION
BY: DONALD MACLEOD
Executive Vice President &
Chief Financial Officer
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