.l??FBl?l A. EJ11th Hf @112 ?npz?ur (Emu! RETIRED ?hate. PARK LANE PLACE Leas ANGELES. 90045 1310] 472-6131 PM Octaber 23, 1997 umnmwew; Barry I. Goldman ROSE, KLEIN MARIAS 801 South Grand Avenue 18th Floar Los Angeles, CA 90017-4645 Dear Barry: Enclused please find the original Settlement and Release Agteement signed by me as President at Brandeis-Hardin Institute. I certainly hays this matter will be concluded soon. I know fhar you are dcing averthiug in your power toward that and far which I sincerely thank you. Sincerely, Joseph A. Wagner jm Enclosure u?cc: Dr. Alvin Mars EETTLEMENT RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is made and entered into by and between The Brandeis-Bardin Institute on the one hand, and Boeing North American, Inc. formerly known as Rockwell International Corporation, on the other hand, as of the date of the execution of the Agreement by all parties hereto and in accordance with the terms and conditions set forth below. I. Def 5.4. mi: 1.4. as - i The following definitions shall apply to this Agreement: 1. The term means The Brandeis?Esrdin institute, including, without limitation, its affiliates, predecessors, successors, assigns, principals, agents, representatives, employees, officers, directors, attorneys, consultants and all persons acting by, through, under or in concert with any of them and each of them, past and present. 2. The term means Boeing North American, Inc. including, without Iimitstiou, its parent, Subsidiaries, ?ivisions, affiliates, predeoessors, successors, assigns, principals, agents, representatives, shareholders, employees, officers, directors, partners, joint venturers, attorneys, consultants and all perSOns acting by, through, under or in concert with any of them and each of them, past and present. 3. The term ?regulatory agencies" means those federal, State of California ahd'local governmental agencies With authority to take action with to hazardous substances, including, without limitation, the U.S. Environmental Protection I ?4.3925214 Agency, the California Environmental Protection Agency, the California Department of Toxic Substances Control, and the California Regional Water Quality Control Board. a. The terms ?hazardous substance" and "haeardoue substances" mean and include any substances in any form, gaseous, liquid, or solid, which are, may be, or have been alleged to be harmful in any way to humans, animals or plants, or damaging in any way to real or personal property or the environment, inclu?ing, but not limited to, any radionuclide, {ii} petroleum product, or chemical, compound, material, mixture or substance that is now or hereafter defined or listed in, or otherwise classified pursuant to, any law as a "hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic substance," ?toxic pollutant" or any other formulation intended to define, list, or claeeify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity or reproductive toxicity. 5. The term ?the Action? means the civil actien filed in the United States District Court for the Central District of California entitled gogketdgge, gnc,, et al., Case No. CV 95-8316 6. The terms "claim" and "claims" mean any losses, claims, ri?hts ot action, causes of action, debts, liabilities, demands, charges, obligations, promises, acts, agreements, actions, suits, damages, judgments, costs and expenses including, but not limited to, attorneys? court coate and other costs of administrative proceedings or litigation. 2 '7 I The term "351 Site" means that real property in excess of 3,800 acres and the imprevements thereon owned by BBI in Brandeis, California 93064. 8. The terms "Santa Sueana Field Lab" and "Field Lab" mean that real promerty and the imprevemcnte thereuu of 2,800 acxes in Sa?ta Susana, Cali?ernie which is adjacent to the RBI Site. 9. The term "the Parcels? means that certain real preperty more particularly described on Exhibit A attached hereto and incorporated herein by reference. 10. The term "Original Value of the Parcels" means the fair market value of the Parcels in their Current cenditien WithDUt C?nt?min?rinn Or the threat ef euuteminetian from hazardeue substances. II. This Agreement is entered into with reference to the fellewing: 1. In December 1995, BB: filed its initial Cemplaint in the Action against Rockwell International Corporation and ether entities alleging damages, including diminution in market value of tho EDI cite, ee result or nezareeue embetencee allegedly emanatinq from the Field Lab_ 2. In December 1996, Roekwell Internatienal CorporatiOH changed its name to Seeing Earth American, Inc. 3. RBI the Actien against RNA under various legal theories includingf?but not limited tu, the cempreheneive Environmental Response, Cempeneetion and Liability mas-9262.1.) 3 Act, nuisance. negligence, n?gligcuuo ogr and ultrahazardouo activity. 4. RNA haa disputed and continues to dispute the allegations made by BBI in the Action. 5. BB: has conducted an investigation with regard to its claims against BNA in the Action and has had access to public records concerning investigations and administrativa proceedings undertaken by regulatory agencies. Based upon this investigation, BE: has elected to settle its claims againsu BNA rather than proSecuco th?m further. 6. BBI and BNA desire to settle any and all disputes relating in any way to the Action without the necesgity of II- further tigation as set forth heroin. 7. The Original Value of the Parcels is $199,870.03 [181.7 acres 23MB AND Therefore, in considEIation of and in reliance upon the definitions, recitals, promises, understandings and obligations as Set ?orth in thio Agreement, ii is agreed as follows: 1, ?glgase. BB: hereby releases and forever discharges ENA of and From any ?nd all claims of wliachur. kind. or; nature, under any theory, whether legal, equitable or other, under the law, either common, Constitutional, statutory, regulatory or other, oi any juriadiction, foreign or domestic, whether such claims are knoWn or unknown, susyeoted or unouspooted, including olaima that BBI has brought or could have brought, which now exist or in the future may oxist, arioing out oi or in any way related to events '4 or matters reierred ta or which ceuld have been referred to f? airectly or indirectly in the Action, including, but not limited FA to, aima relating to hazardous eub?tanrea at or emanating fium the 831 Site and the Field Lab. 2. Waiver Under California Civil Cede lsez. It i3 understood that 1542 of the Civil Cede of Califernia provides as follows: GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM HAVE MATERIALLY AFFECTED HIS SETTLEMEHT WITH THE BB: expressly waives and releases any right or benefit whiCh it has or may have under 1542 of the Civil Cede of the State ef California, to the full extent that it may waive all each rights and benefits pertaining to the matters released herein. In cannection with such waiver and relinquishment, BE: acknowledges that it is aware that it may hereafter diSCOVer claims presently unknewn or unsuspected, er facts in additien to er different from these which it new has or believee to be true, with respect to the matters released herein. NeVer helese, it is the intention of RBI, threugh this Agreement, and with the advice of counsel, fully, filally and ferever to settle and release all such matters, and all claims relative thereto, which do new exist, may exist or heretofere have existed between BB: and RNA. in furtherance of such intention, the release herein given shall be and remain in efiect aa a full and complete release at such matters notwithstanding the discovery or existence of any such additional different claims or facts relative thereto. a. BB: Sale and Transfer of The Parcels Lo BNA. a. In consideration of the mutual promises, covenants, agreements and conditions set forth in this Agreement, BB: ehall sell and transfer marketable ?ee simple title to the Parcels to BNA free of any and all leases, liens and encumbrances, for their Original Value, and shall deliver to ENA a grant deed and such other documents as ENa'e counsel may reasonably request. Real estate taxes Shall be pro?rated in a mutually agreeable manner, and the documentary transfer tax ehall be paid by RNA. b. RNA and RBI will seek approval ?rom Ventura County of a Lot Line Adjustment to accommodate the sale and transfer of the Parcels. BNA will pay the costs of obtaining the County?s approval of the Lot Line Adjustment. If either 331 or BNA decides reasonably and in good faith that a reetriotion' imposed by the County imposes a substantial hardship, such a hardshiy will be cause to rescind this Agreement, this Agreement shall he null and void, and no party hereto shall have any obligation whatsoever under this Agreement. Any proyosed zoning change that affects any portion of existing property, not including the Paroele, will be deemed to impose a substantial hardship. [1.-339262.il "5 4; Censideratian. In cuneideration of the mutual promises, covenants, statements and conditions set forth in this Agreement, ENA will gay the sum of Three Millicn Hundred Thousand dollars to BBI, with $199,870.00 of the $3,200,000.00 representing the Original value of the Parcels which is being paid by EMA to BB: ts purchase all rights, title and interests in the Parcels, and with $3,000,130.00 being paid by BNA to BB: in full Settlement sf claims fer damages against RNA in the Action. BNA shall make this payment within five (5) calendar days of conveyance at the Parcels to BNA. S. alsmissel 0f the Attion With Preiudiee. concurrently with the executien of this agreement, 231 shall deliver to Counsel a fully~exetuted Stipulation fer Dismissal with grejudice of the Actien in the form attached as Exhibit E, which shall not be filed by RNA until conveyance of the Parcels by BBI ts BNA pursuant ts Paragraph and payment of the $3,200,000.00 in consideration :0 BB: pursuant to Paragraph rs. BBI shall csoperate with RNA in good faith in_obtaining a prompt dismissal with prejudice of the Act i011 . 6. Cehn?s Bills. 381 and RNA shall share equally the cost sf bills submitted by BBI environmental consultant Jeel Cehn for his work pursuant to the access agreements betWeen RBI and Rockwell which have not yet been paid by Rockwell. share at these bills will not exceed $13,500.00. BNA shall pay share of these bills to BEE at the same time EMA pays EBI the censideration Specified in Emu-1262.1! Paragraph lil.4., supra, so long as BB: has provided BNA with copies of the bills and all supporting documentation Sufficient for BNA to determine the nature and scope of the work represented by those bills and RNA has had at least fifteen (15) days to review these bills and dDCUmentation. BNA shall not be reeponsible for any portion of these hills which represent Mr. Cehn's consulting in connection with the Action or work outside the scope of the two access agreements between BB: and Rockwell. 7. Further Remediation of Hazardous Substances. a. EMA shall continue to investigate and remediate under the direction of regulatory agencies the hazardous Substances emanating from the Field Lab. BB: shall cooperate fully with BEA, including giving RNA access to the 33: Site, in connection with investigation and remediation under the direction of regulatory agencies of hazardous substances on the RBI Site emanating from the Field Lab. The scope of BNA's inVeetigation and remediation of hazardous substances shall be determined by the regulatory agencies, and not by BBI. ERA shall be responsible for any remediation of the Parcels required by regulatory agencies. This Agreement supersedes the terms and conditions of the Second Access Agreement entered into by EB: and Rockwell International torporation in January 1994. b. Before selling, leasing, or otherwise conveying an interest in the BB1 Site or any part thereof, EBI shall provide a copy of this Agreement and make full dieclosure regarding obligation to CODperate tully with reams: '9 RNA, including giving RNA access to the EBI Site, in cennection with BNA's investigation and remediation under the direction of regulatory agencies of hazardous substances on the RBI Site emanating from the Field Lab. (ii) Shall Obtain the written canvenent from all persons acquiring an interest in the RBI Site er any part thereof in the form attached herete as Exhibit C, and shell forward such convenes: te EMA within five 8. RetreSentetiQns and Warranties. 331 and BNA, and each of them, represent and warrant, 5) days. and agree with each other, as follows: a. RBI and RNA have each received independent legal advice from attorneys of their choice with respect to the advisability 0f making the Settlement and Release provided herein, and with respect to the advisability cf eXeeuting this Agreement, and prior to the execution ef this Agreement by each party that party's attorney reviewed this Agreement at length and. made all desired changes. Ne provision of this Agreement is to be interpreted fer or against either party that party or its legal representative drafted such previsien. b; Except as expressly stated in this Agreement, neither BBI nor RNA has made any statement or repreSentatien to any other party regarding any fact relied upon by any other party in entering into this Agreement, and each party specifically does not rely upon any statement or representatien 0f premise of any other party in executing this Agreement, or in making the settlement grevided fer herein, except as expressly stated in 1 i Agreement. {12.335.262.11 c. There haVe been no other agreements or understandings between the partiee herete relating to the disputes referred :e in this Agreement. d. Each party and its Attorneys have made such inve tigatien of the facts pertaining te this eettlement and this Agreement and all of the matters pertaining thereto ee they deem a. The terms of this Agreement are contractual, net a mere recital, and are the result 5f negotiatiene between the parties. f. This Agreement has been carefully read by, the contents hereof are known and understand by, and it is signed freely by each person executing thie Agreement. g. Each person executing this Agreement in a representative capacity warrants that he, she or it is fully authorized and empowered to do so. h. BB: and RNA covenant and agree not to bring' any claim, action, suit or against any person or entity, directly or indirectly, regarding or related in any manner to the matters released hereby, and further cevenent and agree that this Agreement is a bar to any eueh Claim or action, suit er preceeding. 9. ?gn;ga?innment of Claims. BBI represents and warrants that it is the sale and lawful owner of all right, title and interest in and to every ?laim and ether matter which i: ?urperte to release or assign herein and that it has not heretofore assigned or transferred or purperted to assign or transfer to any pereen or entity any [7433932511] "1-0 claims or ether matters herein released or assigned. BB: shall indemnify, de?end and held BNA harmless frem and against,anv claims based upen or arising in connection with any such prior assignment or transfer or any such purperted assignment or transfer of any claims or other matters released or assigned herein. 10. S.tt ment. This Agreement effects the settlement of claims (present and future) which are denied and contested, and nothing centained herein shall he canetrued as an admission by BN3 of any liability at any kind am am, all such liability being expressly denied. 11. guceessers and Assigns. This Agreement shall inure to the benefit of and shall be binding upnn the ?wrrt??nr? ?SSian Of the Earties heret?; and each of them. 12. Diseute ResolutiOHiAnd SubseqUent Atternevs' Fees. a. If a dispute arises between BB: and BNA csncerning the parties' rights and obligations under this Agreementr the disPute shall be resolved by binding arbitratien the American Arbitration hesnr?intion. b. In the event that any party hereto shall bring any action, suit er other greasedings against any ether natty hexane QQntestinq the validity hereof, or attempting to rescind, negate, modi?y or reform this Agreement, any of the terms er provisions hereof, or any of the matters referred to herein, such party shall pay such other party all of the ether ?arty?s attorneye' fees incurred in each and every such action: Un39262.1f suit, or other proceeding, including any and all appeals er petitions herefrom. t. in tne event that any action, euit er other is instituted to remedy, ?rthuuL u; ebtain relief from a breath at this Agreement, or arising out of a breach of this Agreement, the prevailing party shall recover all eF enrh party?o attorneys' fees incurred in each and every such action, suit or other proceeding, including any or all appeals er petitions therefrom. a. As used herein, attorneys? fees shall be deemed to mean the full and actnal test of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fees charged by the attorneys performing such services and shall not be limited tn reasonable fees as defined in any statute, ease or rule of ceurt. 13. Attornevs? Fees. Except for the payment provided far in this Agreement,- all parties hereto agree to bear their own cents and attorneye? fees regarding this Agreement and the Action. Integration. This Agreement constitutes a single, integrated written centract expressing the entire agreement of the parties hereto relative te the subject matter heree?. Ne uuvsuduts, agreements, representations or warranties at any kind whatsoever have been made by any party hereto except as Specifically set Earth in this Agreement~ All Dri?? negotiations have been and are merged and are integrated into, and are superseded by, this Agreement. 1-3 {539262.11 ~12~ 15. ngsrabilitv. In the event that any provision of this Agreement should be held to be void, voidable or unenforceable, the remaining portions hereof shall remain in full force and effect. 15. Exacution In Counterparts. This Agreement may be executed and delivered in two or more counterparts, each of which, when executed and delivere?, shall be an original, but such counterparts together shall constitute but one and the same instrument and Agreementu sorvival of The warranties and representations of this Agreement are deemed to survive the closing hereof. 18. HonuDisclosure. The parties agree not to disclose in any way the terms or conditions of this Agreement to any person other than their counsel, auditors, insurance carriers, lenders, officers and directors, each of whom shall be informed of, and bound by, the confidentiality terms of the Agreement, except in response to a lawful subpoena or other lawful process or as may be required by an independent auditor, or as part of an effort to enforce the terms of this Agreement. In the event that a party believes that disclosure is otherwise required by law or is necessary to enforce this Agreement, it shall give prompt written notice via overnight delivery to the other parties to this Agreement orig; to disclosing such information. Written notice shall be provided to RBI as follows: iuznsii] ?13" Dr. Alvin Mere The Brandeie?Eerdin Institute Brandeis, California 93064; and and Barry I. Geldmen, Esq. Rhee, Klein 3 Marius 801 South Grand Avenue, 18th Floor Lee Angeles, California 90017. Written netiee shall be provided to EMA as follewe} Gary M. Black, Esq. Assistant General Ceunsel Boeing North American, Inc. 2201 Seal Beach Boulevard, 001?330 Seal Beech, California 90740 and Stephen M, Kristevieh, Esq. Munger, Tellee Olsen 355 South Grand AVenue, 35th Fleer Lee Angelee, California 90071 Said notice shall set forth all infermatien which the party to this Agreement to dieelQSe, the identity of each persen to whom the infermation is to be discloeed, the statute or other legal authority purportedly requiring diecleeure, and the circumstances pursuant to which disclosure ie to be made. If the party providing notice to the other party receives nu notice within ten (10) daye that the ether party intends to seek to prevent disclosure, it may produce the Agreement. This Agreement shall be subject ta any statute or rule of court which restric35 or prehibite the admission into evidence of any effer or agreement to Netwithetanding the foregeing sentence, this Agreement may be admitted into evidence in any action te enteree its terms er secure its benefits. gtxr'uszJj - 1.4 19. ghcice of Law. The validity, interpretation and performance of this Agreement shall be gcverned and construed in accordance with the laws cf the State ef California. 20. Eurther Cecperation. All parties hereto agree to perform whatever acts may be required to effectuate the terms of this Agreement. 21. .?mendment and Waiver. This Agreement may not be amended, changed or medified in any manner, except by an instrument in writing signed on behalf cf each of the parties affected thereby by their duly autherized representative. mhe failure of any party to at any time any of the provisions of this Agreement shall in no way be censtrued Lu be a waiver of any such provision, nor in any way :0 affect the validity er enforceability of this Agreement or any portion thereof. i 22. ?gptian Headinas. The section headings contained in this Agreem??t are far reference purposes only and shall n9: affec: in any way the m?aning or in:erpretation cf this Agreement. IN WITNESS WHEREDF, and intending to be legally bound, the parties hereto have apgroved and EXEcuted this.Agreemant on the date set forth oppoaite their respective aignatures. DATED: Iggjga?g?w #341?, 1997 THE BRANDEIS-BARDIN mam-rum DATED: 1997 BOEING NORTH AMERICAN, INC. BY Ita' [mummn