EXHIBIT A MEMORANDUM OF REDEVELOPMENT AGREEMENT Attached. EXHIBIT A MEMORANDUM OF REDEVELOPMENT AGREEMENT
EXHIBIT
A
Attached.
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EXHIBIT
A
This is a
Memorandum of Redevelopment Agreement being made as of March, 2008 between
SAYREVILLE ECONOMIC AND REDEVELOPMENT AGENCY ("SERA"), a
public body corporate and politic, organized and existing under the laws of the
State of New Jersey, acting in the capacity of redevelopment entity pursuant to
the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. (the "LRHL")
having an address 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and SAYREVILLE SEAPORT
ASSOCIATES, L.P., a Delaware limited partnership ("SSA"), having offices
at 0000 Xxxxxxxxxxx Xxxxxxxxx, 0xx
Xxxxx, Xxxx xx Xxxxxxx, XX 00000.
NOW, THEREFORE, for
good and valuable consideration, it is agreed as of the date set forth above by
and between SERA and SSA, as follows:
1. Property. SERA is the
fee simple owner of certain parcels of real property, commonly known as the NL
Industries, Inc. site and designated as Parcel A [as described on Exhibit A
attached to this Memorandum] ("Parcel A"), Parcel B [as described on Exhibit B
attached to this Memorandum] ("Parcel B"), and X0, X0-0, X0-0, X0-0, X0-0, X0-0,
X0-0, X0-0, X0-0 and C3-2 [as described on Exhibit C attached to this
Memorandum) [and Parcels C2, X-0, XX-0, X0-0, X0-0, X0-0, X0-0, X0-0, X0-0 and
C3- 2 are sometimes hereafter referred to as "Parcel C"] situated within the
Sayreville Waterfront Redevelopment Area (the "SWRA"), consisting of
approximately 425 +/acres of land located in the Borough of Sayreville
("Borough"), Middlesex County, New Jersey, as shown on Borough tax map
(collectively, the "Property).
2. Redevelopment
Agreement. SERA and SSA have entered into a certain Redevelopment
Agreement of even date herewith for the redevelopment of the Property (the
"Redevelopment Agreement"), which Redevelopment Agreement sets forth all of the
terms, covenants, conditions, representations and agreements of the
parties.
3. Proposed Redevelopment
Project. The proposed redevelopment project for the Property is a mixed
use development consisting of residential, retail and commercial
office uses, along with associated public amenities more particularly set forth
in the Redevelopment Agreement.
4. Phasing of Redevelopment
Project. Pursuant to the Redevelopment Agreement,
the redevelopment of the Property is contemplated to be performed in phases as
follows:
(a) After the
initial closing scheduled for May 1, 2008, the redevelopment of the C
Parcels is contemplated to be performed in phases and may consist of any
combination of the uses set forth in Paragraph 3 above; and
(b) After the
second closing scheduled for December 1, 2008, Parcel A will be preserved
for open space and recreational purposes; and
(c) After
third and final closing scheduled for October 15, 2010, the redevelopment
of Parcel B is contemplated to be performed in phases and may consist of any
combination of the uses set forth in Paragraph 3 above.
5. Compliance with LRHL.
The Redevelopment Agreement contains covenants which SSA is obligated to comply
with, including, but not limited to, each of the covenants set forth in N.J.S.A.
40A:12A-9.
6. Purpose. This
Memorandum is executed for the purpose of giving notice of the existence of the
Redevelopment Agreement and the terms thereof. Reference is made to the
Redevelopment Agreement for the full description of the rights and duties of
SERA and SSA, and this Memorandum shall in no way affect or modify any of the
terms and conditions of the Redevelopment Agreement, all of which remain in full
force and effect, or the interpretation of rights and duties of the SERA and
SSA. A complete copy of the Redevelopment Agreement will be kept on file with
the Secretary of the Sayreville Economic and Redevelopment Agency located at
Borough Hall, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
{00035555;}
IN
WITNESS WHEREOF, each party has caused this Memorandum to he duly executed on
its respective behalf as of the day and year first above written.
WITNESS:
SAYREVILLE
ECONOMIC AND
REDEVELOPMENT AGENCY
By:
Xxxxxxx
Xxxxxxxxx, Chairman
SAYREVILLE
SEAPORT ASSOCIATES, L.P
By:
Sayreville Seaport Associates Acquisition Company, LLC, its General
Partner
By:
Xxxxxxx
Xxxxx, President
{00035555;}
ACKNOWLEDGMENTS
STATE OF
NEW JERSEY, COUNTY OF SS:
I CERTIFY
that on March , 2008, Xxxxxxx Xxxxx, President of Sayreville Seaport
Associates, L.P., personally came before me and stated to my satisfaction that
this person (or if more than one, each person):
(a) Was the
maker of the annexed instrument; and,
(b) Executed
this instrument as his/her own act duly authorized by the represented
entity.
STATE OF
NEW JERSEY, COUNTY OF MIDDLESEX SS:
I CERTIFY
that on March , 2008, Xxxxxxx Xxxxxxxxx, Chairman of the
Sayreville
Economic and Redevelopment Agency, personally came before me and stated to my
satisfaction that this person (or if more than one, each person):
(a) Was the
maker of the annexed instrument; and,
(b) Executed
this instrument as his/her own act duly authorized by the represented
entity.
{00035555;}
EXHIBIT
A
[Attach
Parcel A Legal Description]
Includes
professional description of property performed by CME Associates for the
periods October 2004 revised April 2008 for Parcel A.
{00035555;}
EXHIBIT
B
[Attach
Parcel B Legal Description]
Includes
professional description of property performed by CME Associates for the
periods October 2004 revised April 2008 for Parcel B.
EXHIBIT
C
[Attach C
Parcels Legal Description]
Includes
professional description of property performed by CME Associates for the
period December 2007 for Parcel C.
EXHIBIT
B
MEMORANDUM OF PURCHASE AND SALE
AGREEMENT
Attached.
EXHIBIT
B
MEMORANDUM OF PURCHASE AND SALE
AGREEMENT
This is a
Memorandum of Purchase and Sale Agreement being made as of March 2008
between SAYREVILLE ECONOMIC AND
REDEVELOPMENT AGENCY ("Seller"), a public body corporate and politic,
organized and existing under the laws of the State of New Jersey, acting in the
capacity of redevelopment entity pursuant to the Local Redevelopment and Housing
Law, N.J.S.A.
40A:12A-1 et seq.
(the "LRHL")
having an address 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and SAYREVILLE SEAPORT ASSOCIATES, L.P., a Delaware
limited partnership ("Purchaser"),
having offices at 0000 Xxxxxxxxxxx Xxxxxxxxx, 0xx
Xxxxx, Xxxx xx Xxxxxxx, XX 00000.
I. Property.Seller
is the fee simple owner of certain parcels of real property,
commonly known as the NL Industries,
Inc. site and designated as Parcels A ("Parcel A"), Parcels B ("Parcel B"), and X0, X0-0,
X0-0, X0-0, X0-0, XX-0, X0-0, X0-0, X0-0 and C3-2 (and Parcels C2, X-0, X0-0, X0-0, X0-0,
X0-0, X0-0, XX-0, X0-0 and C3-2 are sometimes hereafter referred to as the "C Parcels") situated within the Sayreville
Waterfront Redevelopment Area (the "SWRA"), consisting of approximately 425 +1-
acres of land located in the Borough of Sayreville ("Borough"), Middlesex County, New Jersey, as shown
on Borough tax map (collectively, the "Property).
2. Agreement.
Seller and Purchaser will enter into an Agreement of Sale ("Agreement") for the
purchase the Property.
3. Settlement.Pursuant
to the Agreement, title to the Property is contemplated to close
("Settlement")
based on the following schedule:
a. The
"Initial Closing" shall occur on or before May 1, 2008 (the "Initial Closing
Date"). At the Initial Closing, Purchase will purchase from Seller that portion
of the Property commonly referred to by the parties as the C Parcels, which C
Parcels are more particularly described on Exhibit A attached hereto, subject to
conditions set forth in the Settlement Agreement and Release.
b. The
"Second Closing" shall occur on or before December 1, 2008 (the "Second Closing
Date"). At the Second Closing, Purchaser will purchase from Seller the
development rights to that portion of the Property commonly referred to by the
parties as Parcel A, which Parcel A is more particularly described on Exhibit B
attached hereto and which, subject to the conditions set forth in the Settlement
Agreement and Release, shall be transferred by Purchaser to Parcel C and/or
Parcel B or shall otherwise be preserved so as to accrue to the benefit of
Purchaser for use in the redevelopment of the C Parcels and Parcel
B.
c. The
"Third Closing" shall occur on or before October 15, 2010 (the "Third Closing
Date"). At the Third Closing, Purchaser will purchase from Seller that portion
of the Property commonly referred to by the parties as Parcel B, which Parcel B
is more particularly described
on Exhibit C attached hereto, subject to conditions set forth in the Settlement
Agreement and Release.
4. Public Notice: Further
Information - This Memorandum gives public notice of the
impending
purchase under the Agreement. This Memorandum inures to the benefit of and binds
the respective successors and assigns of Seller and Purchaser. Parties seeking
further information as to status or otherwise are directed to communicate with:
Xxxxxxx X. Xxxxx, Esq., Hoagland, Longo, Xxxxx, Xxxxx & Xxxxxx, LLP,
Attorneys for Seller, 00 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxx Xxxxxx
00000.
IN
WITNESS WHEREOF, each party has caused this Memorandum to be duly executed on
its respective behalf as of the day and year first above written.
WITNESS: SELLER:
SAYREVILLE
ECONOMIC AND REDEVELOPMENT AGENCY
By:
Xxxxxxx
Xxxxxxxxx, Chairman
PURCHASER:
SAYREVILLE
SEAPORT ASSOCIATES, L.P
By:
Xxxxxxx
Xxxxx, President
ACKNOWLEDGMENTS
STATE OF
NEW JERSEY, COUNTY OF SS:
I CERTIFY
that on March _____, 2008, Xxxxxxx Xxxxx, President of Sayreville Seaport
Associates, L.P., personally came before me and stated to my satisfaction that
this person (or if more than one, each person):
(a) Was the
maker of the annexed instrument; and,
(b) Executed
this instrument as his/her own act duly authorized by the represented
entity.
STATE OF
NEW JERSEY, COUNTY OF MIDDLESEX SS:
I CERTIFY
that on March _____, 2008, Xxxxxxx Xxxxxxxxx, Chairman of the
Sayreville
Economic
and Redevelopment Agency, personally came before me and stated to my
satisfaction that this person (or if more than one, each person):
(a) Was the
maker of the annexed instrument; and,
(b) Executed
this instrument as his/her own act duly authorized by the represented
entity.
EXHIBIT A
EXHIBIT C
[Attach
Parcel C Legal Description]
Includes
professional description of property performed by CME Associates for the
period December 2007 for Parcel C.
{00035555;}
EXHIBIT
B
[Attach
Parcel A Legal Description]
Includes
professional description of property performed by CME Associates for the
period October 18, 2004 revised April 2, 2008 for Parcel A.
EXHIBIT
C
[Attach B
Parcels Legal Description]
Includes
professional description of property performed by CME Associates for the
period October 2004 revised April 2008 for Parcel B.
EXHIBIT C-1,
C-2
DESCRIPTION OF B AND C PARCELS
EASEMENT
Attached.
Includes
professional description of proposed 50-foot wide public access easement along
with an aerial photograph of entire waterfront.
C PARCELS LEGAL
DESCRIPTION
Attached.
Includes
professional description of property performed by CME Associates for the
period December 2007 for Parcel C.
EXHIBIT
D
PARCEL
A LEGAL DESCRIPTION
Attached
Includes
professional description of property performed by CME Associates for the
period October 18, 2004 revised April 2, 2008 for Parcel A.
EXHIBIT
E
DESCRIPTION
OF PARCEL A DEVELOPMENT RIGHTS
Attached
EXHIBIT
E
DESCRIPTION
OF PARCEL A DEVELOPMENT RIGHTS
The
Sayreville Waterfront Redevelopment Plan, adopted by ordinance of the Borough
Sayreville on or about January 1999, as same may have been or may be amended
from time to time, sets forth the permitted uses for the development of Parcel
A. Those development rights may he transferred to Parcel B and/or Parcel C, or
may be otherwise preserved so as to accrue to the benefit of the Redeveloper for
use in the redevelopment of Parcel B and/or Parcel C, (a) provided that the
Second Closing occurs, and (b) subject to any applicable conditions set forth in
the Settlement Agreement and Release, and Purchase and Sale
Agreement.
EXHIBIT
F
PARCEL
B LEGAL DESCRIPTION
Attached.
Includes
professional description of property performed by CME Associates for the
period October 2004 revised April 2008 for Parcel B.
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NL
INDUSTRIES, INC.,
Plaintiff,
vs.
Defendant.
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SUPERIOR
COURT OF NEW JERSEY
LAW
DIVISION
DOCKET
NO. L-6018-02
Civil Action
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SAYREVILLE
ECONOMIC AND REDEVELOPMENT AGENCY,
Plaintiff,
vs.
NL
INDUSTRIES, INC., et al.,
Defendants.
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DOCKET
NO. L-6130-02
(Consolidated
Actions)
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CONSENT ORDER FOR WITHDRAWAL
OF DEPOSIT
THIS MATTER having been opened
to the Court upon the joint application of the condemnees NL Industries, Inc.
and NL Environmental Management Services, Inc. (collectively “NL”) by their
attorneys, Xxxxxx & Xxxxxxx, P.C., and the condemnor Sayreville Economic and
Redevelopment Agency (“SERA”) by its attorneys, Hoagland, Longo, Xxxxx, Dunst
& Xxxxxx, LLP, for an Order directing payment of $33,550,000 (Thirty-Three
Million Five Hundred Fifty Thousand Dollars), together with all interest accrued
thereon, currently held on deposit with the Clerk of the Superior Court, to
Xxxxxx & Xxxxxxx, P.C., to be held in trust for NL; and the aforesaid
parties having executed an agreement for the settlement of the above-captioned
actions that provides for the release of the above-described funds; and the
Court having considered the joint request for entry of this Consent Order; and
all other parties whose interests SERA originally alleged in its Verified
Complaint to be taking having previously been voluntarily dismissed from these
consolidated actions; and good cause having been shown;
IT IS, on this _________ day
of _________________, 2008, AGREED AND ORDERED as
follows:
1. Pursuant
to N.J.S.A.
20:3-23, the Clerk of the Superior Court of New Jersey is hereby authorized and
directed to pay the sum of $33,550,000.00, together with all interest accrued
thereon, out of the money deposited by SERA with the Clerk of the Superior Court
in connection with these consolidated actions to Xxxxxx & Xxxxxxx, P.C. to
be held in trust for NL and distributed in accordance with the terms of the
parties’ settlement agreement.
2. In the
event that the parties’ settlement agreement is terminated prior to distribution
of the funds paid to Xxxxxx & Xxxxxxx, P.C. pursuant to Paragraph 1 of this
Consent Order, NL shall within fifteen (15) days of termination of the parties’
settlement agreement redeposit with the Clerk of the Superior Court of New
Jersey the sum of $33,550,000.00, which SERA previously deposited into Court as
estimated just compensation in connection with these consolidated actions
pursuant to N.J.S.A. 20:3-18 and
this Court’s Order for Payment Into Court and for Possession entered on March
23, 2005.
3. Counsel
for NL shall serve a copy of this Consent Order upon counsel for SERA within
_______ days of its entry.
, J.S.C.
Verified
as to amount on deposit
with the
Clerk of the Superior Court
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The
undersigned hereby consent
to
the form and entry of this Order.
Xxxxxxxxxxx
X. Xxxxxx, Esquire
Xxxxxx
& Xxxxxxx, P.C.
Attorneys
for NL Industries, Inc. and NL Environmental Management Services,
Inc.
Dated:
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Xxxxxxx
X. Xxxxx, Esquire
Hoagland,
Longo, Xxxxx, Xxxxx & Xxxxxx, LLP
Attorneys
for Sayreville Economic and Redevelopment Agency
Dated:
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3202946v1
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NL
INDUSTRIES, INC.,
Plaintiff,
vs.
Defendant.
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SUPERIOR
COURT OF NEW JERSEY
LAW
DIVISION
DOCKET
NO. L-6018-02
Civil Action
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SAYREVILLE
ECONOMIC AND REDEVELOPMENT AGENCY,
Plaintiff,
vs.
NL
INDUSTRIES, INC., et al.,
Defendants.
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DOCKET
NO. L-6130-02
(Consolidated
Actions)
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STIPULATION OF DISMISSAL
WITH PREJUDICE
IT IS HEREBY STIPULATED AND
AGREED by and between the undersigned that all claims asserted by or
against Sayreville Economic and Redevelopment Agency, NL Industries, Inc., and
NL Environmental Management Services, Inc. in the above-captioned consolidated
actions are dismissed with prejudice. Each side agrees to bear its
own attorney fees and costs associated with this matter.
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Xxxxxxxxxxx
X. Xxxxxx, Esquire
Xxxxxx
& Xxxxxxx, P.C.
Attorneys
for NL Industries, Inc. and NL Environmental Management Services,
Inc.
Dated:
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Xxxxxxx
X. Xxxxx, Esquire
Hoagland,
Longo, Xxxxx, Xxxxx & Xxxxxx, LLP
Attorneys
for Sayreville Economic and Redevelopment Agency
Dated:
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3020627v1
DISCHARGE OF EQUITABLE
LIEN
An
Equitable Lien arose by operation of law, and in accordance with the Eminent
Domain Act of 1971 (“Eminent Domain Act”), N.J.S.A. 20:3-1, et
seq., by virtue of the taking through eminent domain of certain real property in
the Borough of Sayreville, Middlesex County, New Jersey designated on Exhibit A
attached hereto (the “Property”). The Property was owned by NL
Industries, Inc. and/or NL Environmental Management Services, Inc. (collectively
“NL”) until its taking through eminent domain by the Sayreville Economic and
Redevelopment Agency pursuant to an action filed in July 2002 in the Superior
Court of New Jersey, Law Division, Middlesex County under docket number
L-6130-02.
The
Equitable Lien arose and attached to the Property to secure payment to NL of
just compensation owed to NL pursuant to the Eminent Domain Act, the Fifth
Amendment of the United States Constitution, and Article I, Paragraph 20 of the
New Jersey Constitution as a result of the taking of the
Property. Notices of Lis Pendens relating to the Equitable Lien were
recorded by the Middlesex County Clerk on August 8, 2002 in Book # 31 at Page
47, on April 26, 2007 in Book #35 at Page 112, and on December 19, 2007 in Book
#35 at Page 604.
The
Equitable Lien with respect to the Property has been PAID IN FULL or otherwise
SATISFIED and DISCHARGED. It may now be discharged of
record. This means that the Equitable Lien with respect to the
Property is now canceled and void.
The
undersigned each sign and CERTIFY to this Discharge of Equitable Lien on
__________________, 2009.
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Witnessed
or Attested by:
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NL
INDUSTRIES, INC.
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__________________________
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By:
____________________________(Seal)
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Name:
_________________________
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Title:
__________________________
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NL
ENVIRONMENTAL MANAGEMENT SERVICES, INC.
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__________________________
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By:
____________________________(Seal)
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Name:
_________________________
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Title:
__________________________
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STATE OF
TEXAS, COUNTY OF DALLAS :s.s.
I CERTIFY
that
on ,
2009, before me the undersigned witnessing authority, personally appeared
___________________________, who is the ____________________ of NL INDUSTRIES,
INC., who I am satisfied is the person who signed the within instrument, and
he/she acknowledged that he/she signed, sealed and delivered the same as such
officer aforesaid, and that the within instrument is the voluntary act and deed
of such corporation.
________________________________
Print
Name:_____________________
Title:__________________________
Commission
Expires:_____________
STATE OF
TEXAS, COUNTY OF DALLAS :s.s.
I CERTIFY
that
on ,
2009, before me the undersigned witnessing authority, personally appeared
___________________________, who is the ____________________ of NL ENVIRONMENTAL
MANAGEMENT SERVICES, INC., who I am satisfied is the person who signed the
within instrument, and he/she acknowledged that he/she signed, sealed and
delivered the same as such officer aforesaid, and that the within instrument is
the voluntary act and deed of such corporation.
________________________________
Print
Name:_____________________
Title:__________________________
Commission
Expires:_____________
3562920v1
Exhibit
A
EXHIBIT
L
FORM
OF RELEASE OF MORTGAGE
Attached.
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RELEASE OF PART
OF MORTGAGED PROPERTY
This
Release is made on 200
BY the
Lender(s)
COUNTY OF
MIDDLESEX
whose
address is c/o County Counsel's Office, County of Middlesex, Administration
Building, 00 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 referred
to as "I,"
To the
Borrower(s)
SAYREVILLE
ECONOMIC AND REDEVELOPMENT
whose
address is 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000 referred
to as "You."
If more
than one person signs this Release, the word "1" shall mean "We."
I.
Release. I hold a mortgage on a property owned by you. I also hold the note
and/or other agreement for the loan repayment obligations that is secured by the
mortgage. I agree to change the mortgage by removing some of the property
covered by the mortgage. This property is released or freed from the mortgage.
The rest of the property (not released) remains subject to the mortgage. I have
been paid $for making this Release.
2. Mortgage.
The mortgage I hold is dated March 1, 2005 , and was made by and between COUNTY
OF MIDDLESEX
to
SAYREVILLE
ECONOMIC AND REDEVELOPMENT
The
mortgage was recorded on April I , 2005, in the office of the Middlesex County
Clerk, in Book 10506 of Mortgages on Page 317-339. The original amount of the
mortgage was $39,000,000.00.
3. Release
of Property. The property which is released from and no longer subject to the
mortgage is known as Parcel located at in the Borough of Sayreville
in the County of Middlesex and State of New Jersey. The property includes: (a)
the land; (b) all buildings that are located on the land; (c) all fixtures that
are attached to the land or building(s) for example: furnaces, bathroom fixtures
and kitchen cabinets; and (d) all other rights that I now have relating to the
property. The legal description for Parcelis attached hereto as
Schedule "A".
4. Who is
bound. This Release is binding upon me and all who succeed to my rights
as holder of the mortgage.
5. Signatures.
I agree to this Release. If this Release is made by a corporation its
proper corporate officers sign and its corporate seal is affixed.
ATTEST: COUNTY
OF MIDDLESEX
Xxxxx X.
Xxxxxxx
STATE OF
NEW JERSEY
SS
COUNTY OF
MIDDLESEX
I certify
that on , 0000, Xxxxxxxx X. Xxxxxxxxx, personally came before
me
and
acknowledged under oath, to my satisfaction, that:
(a) She is
the Clerk of the Middlesex County Board of Chosen Freeholders, the Grantee named
in this document;
(b) She is
the attesting witness to the signing of this document by the proper authorized
representative, Xxxxx X. Xxxxxxx, the Director of the Middlesex County Board of
Chosen Freeholders;
(c) This
document was signed and delivered by the County as its voluntary act duly
authorized by a proper resolution of the Board of Chosen
Freeholders;
(d) She knows
the proper seal of the County which was attached to this document;
and
(e) She
signed this proof to attest to the truth of these facts.
Xxxxxxxx
X. Xxxxxxxxx, Clerk Middlesex County Board of Chosen
Freeholders
Signed
and sworn to before me
on , 2008
Name:
Attorney
at Law of the State of New Jersey
Notary
Public of the State of New Jersey
Record
and Return to:
EXHIBIT
M
TIDAL
WETLANDS MAP
Attached.
Includes three topographic surveys prepared by Xxxxxxx Xxxxx.
EXHIBIT N
SCHEDULE OF ENVIRONMENTAL PERMITS
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1.
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NJPDES
Stormwater Discharge Permit
(NJ0000931)
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2.
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NJPDES
Groundwater Discharge Permit (ID#
NJ0051764)
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3.
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Sanitary
Xxxxxxxx Xxx Xxxxxx (XXX XX Xx. 00000; Activity ID Number
PCP040001)
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4.
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Waterfront
Development Permit 1219-98-0004.2 (for mitigation for wetland disturbance
caused by the Dike Repair project)
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5.
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Waterfront
Development Permit 1219-04-005.1WFD040001(IP Upland) (for Landfill
Closure)
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6.
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Freshwater
Wetlands Permit 1219-04-0005.1FWW040001(FWGP5),
1219-04-0005.1FWW040002(FWGP7) (for Landfill
Closure)
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7.
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Waterfront
Development Permit for NJPDES Outfall Repair - application
pending
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EXHIBIT
O
FINANCIAL
ASSURANCE AGREEMENT
THIS FINANCIAL
ASSURANCE AGREEMENT (the
"Agreement"), made as of this 1,
day
of , 2008,
by and among the Sayreville
Economic and Redevelopment
Agency,
a municipal redevelopment agency ("SERA"), Sayreville
Seaport Associates, L.P., a Delaware limited partnership with an office
at 0000 Xxxxxxxxxxx Xxxxxxxxx, 0xx
Xxxxx, Xxxx xx Xxxxxxx, XX 00000, (hereinafter referred to as "SSA"), NL
Industries, Inc., a New Jersey Corporation ("NL"), NL
Environmental Management Services, Inc., a New Jersey Corporation ("NL
EMS" and together with NL, the "NL Companies"), and Bank
of America, N.A.,
a national banking association with an office at 0 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxxxx, XX 1903 (the "Bank"), as Agent for all of the financial
institutions now or hereafter a party to that certain Loan Agreement (the "Loan
Agreement") dated of even date herewith between SSA and the
Bank.
WITNESSETH:
WHEREAS,
SERA is the legal owner of certain tracts or parcels of land known as the
fruitier NL Industries site, as further described on Exhibit A attached to this
Agreement (collectively, the "Site");
WHEREAS,
SERA has entered into a Ground Lease Agreement with SSA dated as of even date
herewith (the "Ground Lease") for the Site;
WHEREAS,
SERA, SSA, the NL Companies and the County of Middlesex, New Jersey (the
"County") have entered into a Reinstated and Amended Settlement Agreement and
Release dated as of June 26, 2008 and that certain Amendment to Reinstated and
Amended Settlement Agreement and Release dated of even date herewith (as
amended, the "Four Party Agreement"), pursuant to which, inter
alia, SERA has agreed to enter into a Memorandum of Understanding ("MOU") with
the New Jersey Department of Environmental Protection Agency ("NJDEP"), pursuant
to which SERA shall be the party performing the investigation and remediation at
the Site to satisfy the "Assumed Environmental Liabilities," as that term is
defined in the Four Party Agreement;
WHEREAS,
pursuant to the Four Party Agreement, SSA has agreed to assume all
responsibility for the Assumed Environmental Liabilities, and to satisfy all of
SERA's obligations pursuant to the MOU;
WHEREAS,
the Bank has agreed to set aside funds, in accordance with the terms of this
Agreement and in accordance with the budget for the Loan (as defined below), for
use by SSA, SERA and/or the NL Companies as set forth in this Agreement: (a) to
fund a portion of the investigation, oversight and remediation required to
satisfy the Assumed Environmental Liabilities, including the costs associated
with the remediation of contaminated wetlands at the Site (the "Rernediation")
and/or (b) to serve as collateral for one or more Economic Infrastructure Trust
loans from the New Jersey Environmental Infrastructure Trust to SERA ("EIT
Loans"), the proceeds of such EIT Loans to be used to fund a portion of the
Remediation (collectively, the "Eligible Uses").
NOW,
THEREFORE, in consideration of the mutual promises contained herein, and
intending to be legally bound, the parties hereby agree as follows:
I.The
Bank acknowledges that the sum of Twenty Million Dollars
($20,000,000)
(the "Set
Aside Fund") of the proceeds of the loan (the "Loan") being made by the Bank and
other lenders to SSA pursuant to the terms of the Loan Agreement have been
designated and reserved for the purpose of funding and serving as financial
assurance for the Eligible Uses. Proceeds of the Set-Aside Fund will be made
available to be advanced by the Bank in accordance with the terms and conditions
of this Agreement. Subject to the terms and except as provided in Paragraph 4(d)
of this Agreement, the Bank specifically agrees that at no time will the
obligation to fund the proceeds of the Set Aside Fund be terminated, revoked,
released, or withdrawn, in whole or in part, regardless of whether SSA is in
default of any of its obligations under the
Loan, unless and until the Bank first receives written approval from SSA, SERA
and the NL Companies to do so.
2. This
Agreement is not to be construed as a guarantee by the Bank that the Remediation
will actually be performed, or that Twenty Million Dollars ($20,000,000) is
sufficient to pay for any or all of the Eligible Uses, including, without
limitation, the Remediation in its entirety. The Bank shall have no obligation
nor duty of inquiry to confirm that any notices have been delivered to any party
to this Agreement, other than the Bank, or as to the validity or authenticity of
any such notice. Except as otherwise provided in Section 7 of this Agreement,
Bank shall be entitled to rely on any and all such notices and shall be released
from any and all claims by the parties hereto in connection with its reliance on
any such notice given pursuant to this Agreement and shall be indemnified, held
harmless and defended by the parties involved in any claims brought against the
Bank for or in connection with Bank having relied upon or acted in accordance
with any notice given to it pursuant to this Agreement.
3. SSA's
Use of
the
Set Aside Fund.
(a)The
Set Aside Fund may only be used by SSA for the Eligible Uses.
Without
any consent of the Bank, SERA and the NL Companies, but with prior written
notice being given to all by SSA, SSA may use or designate all or any portion of
the Set Aside Fund as collateral for FAT Loans actually awarded to SERA. Any
amount of the Set Aside Fund used or designated as collateral for any EIT Loan
shall reduce the amount and availability of the remaining funds allocated to the
Set Aside Fund for other Eligible Uses ("Available Funds"). SSA may draw upon
Available Funds in the Set Aside Fund for the purpose of paying for the
Remediation solely in accordance with Paragraph 3(b) below. SSA may request that
SERA and the NI, Companies agree to a reduction of the Set Aside Fund to an
amount equal to the remaining
estimated costs (as defined pursuant to the Four Party Agreement) in accordance
with Paragraph 3(c) below.
(b)(i) In
order to draw upon the Available Funds in the Set Aside Fund, to pay for
Remediation, SSA and SERA shall jointly submit to the NL Companies a written
request to authorize the disbursement of a specified amount of Available Funds,
which request shall not be unreasonably withheld, conditioned or delayed. Upon
the NL Companies' written approval of such written request, SSA shall then
deliver to the Bank the joint written approval of SSA, SERA and the NL Companies
to Bank's disbursement to, or for the account of SSA under the Loan Agreement of
the specified amount of the Available Funds (a "Written Approval"). At the time
SSA submits such Written Approval to the Bank, SSA shall simultaneously send to
SERA and the NL Companies copies of such Written Approval and request for funds
pursuant thereto. In no event and under no circumstance shall Bank have any
obligation to monitor, verify, insure or otherwise see to it that any and all
such amounts disbursed from the Set Aside Fund pursuant to a Written Approval
are in fact used or utilized by SSA, or any other person or party, for, to or
with respect to the Remediation.
(ii)
Under the Four Party Agreement, SSA is required to first utilize any state grant
funds, EIT Loans or other public grants which have been received by SERA to
perform the Remediation before using any proceeds from the Set Aside Funds for
such Remediation. The Four Party Agreement also provides that if the amount of
state grant funds, EIT Loans and other public grants received by SERA and
available to SSA is insufficient to perform any portion of the Remediation or if
SERA has not yet received such public funds or if the costs and expenses to be
paid are not reimbursable through such public funds, SSA may submit a Written
Approval in accordance with the terms of this Agreement to draw upon the
Available Funds in the Set Aside Fund to pay for such portion of the
Remediation.
(c) If at any
time SSA determines that the estimated cost of the remaining not investigatory
and remedial activities to perform the Remediation (the "Remaining Remediation")
are less than the funds remaining in the Set Aside Fund which have not been used
or allocated as collateral for FIT Loans, SSA may submit a written request to
the Bank for a release of funds allocated to the Set Aside Fund so that the
remaining funds allocated as the Set Aside Funds pursuant to this Agreement will
equal the sum of (X) the Remaining Remediation (the "Reduction Request") and (Y)
such amounts as have been used or allocated as collateral for EIT Loans. The
Reduction Request shall be accompanied with a certification and supporting
documentation from SSA's environmental consultant, along with written approval
from SERA and the NL Companies (or an affidavit from SSA that such approval has
been deemed approved pursuant to the Four Party Agreement). In the event an
affidavit is delivered to the Bank under the immediately preceding sentence, the
Bank shall be irrevocably permitted to act and rely on such affidavit and SERA
and the NL Companies release the Bank from any and all claims in connection with
such affidavit and the applicable party or parties disputing the Bank's action
shall indemnify, defend and hold harmless the Bank from any and all claims
arising in connection with such affidavit.
(d) Upon the
receipt from SSA of either a Written Approval or a Reduction
Request
along with the written approval from SER.A and the NL Companies (or an affidavit
from SSA that such approval has been deemed approved pursuant to the Four Party
Agreement), the Bank shall promptly disburse to SSA the amount requested in the
Written Approval, or subject to the terms of the Loan Agreement regarding
disbursements, the Reduction Request, along with a written statement to SSA,
with a copy to SERA and the NL Companies, setting forth both the amount released
and the unrestricted amount available for disbursement of the Set Aside Fund
following such release.
4.SERA's
and the NL Companies' Use of Set. Aside Fund.
(a) If SSA is
in default of its obligations under the Four Party Agreement, after any and all
notices and expiration of applicable cure periods as provided for in the Four
Party Agreement, and SERA has delivered written notice to SSA and the NL
Companies exercising its rights under the Four Party Agreement to remove SSA as
the party performing remediation in connection with the Assumed Environmental
Liabilities (an "SSA Removal Notice"), SERA may deliver the SSA Removal Notice
to the Bank. In the event an SSA Removal Notice is sent to SSA, no Written
Approvals, request for use of the Set Aside Fund as collateral for an EIT Loan
or a Reduction Request shall be submitted to the Bank by SERA until the
expiration of the Objection Period (as defined in Paragraph 4(c) below) without
the Bank having actually received a Removal Objection prior to such expiration.
If the Bank has not received a Removal Objection (as defined in Paragraph 4(c)
below) prior to the expiration of the Objection Period, SERA shall be authorized
to draw upon the Set Aside Fund, for the benefit of SSA, provided that SERA
submits Written Approval or Reduction Requests to the Bank in accordance with
the requirements of Paragraph 3(b) or 3(c) above as if SERA were SSA for
purposes of these sections of the Agreement; provided, however, only the NL
Companies' approval of the same shall be required. Any Reduction Request
pursuant to this Paragraph 4(a) shall not result in a disbursement of funds to
SERA, but only a reduction in the amount of Available Funds.
(b) In the
event pursuant to the Four Party Agreement, SSA is removed by SERA as the party
performing the remediation in connection with the Assumed Environmental
Liabilities and, in connection therewith or subsequent thereto, NJDEP removes
SERA as the party performing the remediation at the Site due to a default by
SERA under the MOU, and NJDEP designates the NL Companies as the lead remediator
at the Site (the "SERA Removal Events"),
the NL Companies shall be entitled to draw Available Funds in the Set Aside
Agreement pursuant to Section 4(b) provided that NL Companies first sends
written notice to the Bank, with a copy to SSA and SERA, certifying to Bank that
the SERA Removal Events have occurred ("SERA Removal Notice") and provided the
Bank does not receive a Removal Objection pursuant to Paragraph 4(c) below, the
NL Companies shall be authorized to draw upon the Available Funds in the Set
Aside Fund for Remediation, on behalf of SSA, pursuant hereto, provided that the
NL Companies submits Written Approvals or Reduction Requests to the Bank in
accordance with the requirements of Paragraph 3(b) or 3(c) above as if the NL
Companies were SSA for purposes of these sections of the Agreement; provided,
however, no approval by SSA or SERA shall be required. Any Reduction Request
pursuant to this Paragraph 4(b) shall not result in a disbursement of funds to
the NL Companies, but only a reduction in the amount of Available
Funds.
(c) Removal
Objection.
(i)If SSA
or the NL Companies objects to a SSA Removal Notice, or
if SERA
objects to a SERA Removal Notice, the objecting party shall provide the Bank,
with simultaneous copies to the other parties, with a written notice of
objection to the SSA Removal Notice or SERA Removal Notice, specifying the
reasons for such objection (a "Removal Objection"), within five (5) days of the
Bank's receipt of the SSA Removal Notice or SERA Removal Notice (the "Objection
Period"). As among SSA, SERA and the NL Companies, the only valid basis for SSA
or the NL Companies to make a Removal Objection objecting to the SSA Removal
Notice shall be that SSA was not, in fact, removed by SERA as the party
performing the remediation in connection with the Assumed Environmental
Liabilities pursuant to the Four Party Agreement. As among SSA, SERA and the NL
Companies, the only valid bases for SERA to make a Removal Objection objecting
to the SERA Removal Notice shall be the
following: (1) SERA was not, in fact, removed by NJDEP as the party performing
the remediation of the Site pursuant to the MOU and/or (2) the NL Companies were
not designated by NJDEP as the lead remediator of the Site. Upon the Bank's
receipt of a Removal Objection, the Bank shall not disburse to SERA or the NL
Companies, as the case may be, the amount requested in the Written Approval or
Reduction Request (or such other amount as directed by the parties subject to
the dispute) until directed to do so by either (a) a joint written letter signed
by SSA, SERA and the NL
Companies with respect to a SSA Removal Notice or by SERA and the NL Companies with respect to a
SERA Removal Notice or (b) as directed by an arbitrator pursuant to an
arbitration conducted in accordance with the requirements of Paragraph 4(c)(ii)
below.
(ii) If any
party sends a Removal Objection prior to the expiration of the Objection Period,
then within three (3) days of such Removal Objection, the parties subject to the
dispute (which shall not include the Bank) shall meet (either in person or via
teleconference) in a good faith effort to resolve any dispute among such parties
relating to the SSA Removal Notice or SERA Removal Notice, as the case may be.
In the event such parties are able to resolve such dispute at the meeting, such
parties that are the subject of the dispute shall, within two (2) business days
of the meeting, send a joint written letter to the Bank; instructing the Bank on
an ongoing basis which party shall be authorized to submit to the Bank a
Reduction Request or a Written Approval. If the parties that are the subject of
such dispute cannot resolve any dispute at the meeting, the parties that are the
subject of such dispute agree to participate in a binding arbitration before a
neutral arbitrator to settle the dispute in accordance with the arbitration
provisions contained in Paragraph 4(c)(iii) below.
(iii) Arbitration.
In the event arbitration is triggered pursuant to Paragraph 4(c)(ii) above, the
parties (other than the Bank) agree as follows: the disputed issue
shall be
submitted by the parties that are the subject of the dispute within ten (10)
days of completion of the meeting described in Paragraph 4(c)(ii) above to the
American Arbitration Association in New Jersey, and shall be determined in
accordance with the rules of said Association. The decision of the arbitrator
shall be binding upon the parties and no appeal shall be taken by either to any
Court, and the decision of the arbitrator shall be enforceable in any Court of
law or equity. Each party shall pay its own attorneys' fees and costs in
connection with the arbitration and the each party to the dispute shall pay a
proportionate share of the cost of the arbitration.
(d)Notwithstanding
anything to the contrary in this Agreement, upon a default
by SSA under of any of its obligations under the Loan beyond any applicable
notice and cure period or at Maturity of the Loan, whether by scheduled maturity
or acceleration due to default or otherwise, the Bank may elect in its sole
discretion to fund, on behalf of SSA, and deposit the then remaining funds in
the Set Aside Fund (as the same may have been reduced) into a remediation trust
fund having a trustee mutually agreed to by SERA and the NL Companies. In the
event SERA and the NL Companies have not agreed upon a trustee within
three (3)
business days of written notice from the Bank, the Bank may deposit the then
remaining funds in the Set Aside Fund into a remediation trust fund having a
trustee selected by the Bank. Upon the Bank's deposit of such remaining funds
into a remediation trust fund selected by the Bank, the Bank shall have no
further obligations or liabilities under this Agreement and this Agreement shall
automatically become null and void and of no further force or effect as to any
obligation of the Bank.
5.The
parties hereto covenant and agree that, during such time that any portion of
the Set
Aside Fund has been pledged as collateral for an EIT Loan, no party shall submit
a
Written
Approval or Reduction Request to the Bank for such funds that have been so
pledged as collateral.
6. In the
event that: (i) SSA has been removed by SERA as the party perfouning the
remediation in connection with the Assumed Environmental Liabilities; (ii) NJDEP
has removed SERA as the party performing the remediation at the Site due to a
default by SERA under the MOU and (iii) NJDEP does not designate the NL
Companies as the lead remediator at the Site, the Bank shall deposit the then
remaining funds in the Set Aside Fund into a remediation trust fund selected by
the Bank, and, following such deposit, the Bank shall have no further
obligations or liabilities under this Agreement and this Agreement shall
automatically become null and void and of no further force or effect as to any
obligation of the Bank. The NJDEP may use such deposited funds to perform the
Remediation.
7. It is
further understood and agreed that the Bank shall, at no time and in no manner,
bear any responsibility by reason of this Agreement other than to allocate from
the Loan the Set Aside Fund pursuant hereto for the benefit and use of SSA or
such other party as authorized pursuant to this Agreement, subject to paying or
releasing there from such sum, or sums, as from time to time may hereinafter be
authorized pursuant to the terms of this Agreement. Bank shall have no liability
and the parties hereto release Bank from any and all claims, causes of action
and liabilities in connection with Bank acting upon any purported Written
Approval, Reduction Request, SSA Removal Notice, SERA. Removal Notice, a Removal
Objection or any other notice or writing as provided for or pursuant to this
Agreement or any action taken hereunder by Bank except for Bank's own gross
negligence or willful misconduct.
8. The laws
of the State of New Jersey shall govern this Agreement. All parties to this
Agreement agree to submit to the jurisdiction of the State of New Jersey for all
matters pertaining to this Agreement.
9.This
Agreement extends to and binds the successors, heirs, administrators and
assigns
of the parties hereto.
10. By
executing this Agreement, the individuals signing this Agreement represent and
warrant that they have the authority to execute this Agreement on behalf of the
person for whom they are signing and to bind that person to the terms of this
Agreement.
11. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original as against any party whose signature appears thereon,
and all of such counterparts shall together constitute one and the same
instrument. This Agreement may he signed by facsimile and a facsimile signature
shall constitute an original signature. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the
signatories.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOLLOWS
EXHIBIT
P
Exhibit P
is the form of environmental insurance policy required under the agreement to be
issued by AIG for PLL Select premium insurance for the Sayreville site. The
insured entity is Sayreville Seaport Associates, L.P.
The
"Additional Insureds" are: Bank of America, N.A; Citizens Bank of PA; and US
Bank, N.A.
The
"Named Insureds" are: Sayreville Economic and Redevelopment Authority; Middlesex
County; Sayreville Seaport Associates Acquisition Company, LLC; J. Xxxxx
X'Xxxxx; Prudential Insurance Company of America; NL Industries, Inc.; and
X'Xxxxx Properties Group.
EXHIBIT
Q
FINANCIAL
ASSURANCE AGREEMENT
MEMORANDUM
OF LEASE
PREPARED
BY AND :
Xxxx X.
Xxxxxxxx, Esquire
Xxxxxxxxx,
Xxxxxxxx & Xxxxxxxx, LLC 0000 Xxxxxxxxxxx Xxxx., 0xx
Xxxxx Xxxx xx Xxxxxxx, XX 00000
MEMORANDUM
OF GROUND LEASE AGREEMENT
This
MEMORANDUM OF GROUND LEASE AGREEMENT (“Memorandum”) is dated as of, 2008 by
and between SAYREVILLE ECONOMIC AND
REDEVELOPMENT
AGENCY, a public body corporate and politic organized and existing under the
Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. (“Lessor”), and
SAYREVILLE SEAPORT ASSOCIATES, L.P. (“SSA”), a Delaware limited
partnership.
BACKGROUND
Lessor
and Lessee have entered into a certain Ground Lease Agreement dated as
of, 2008
(the “Ground Lease”) with respect to certain real property located
in
Borough
of Sayreville, County of Middlesex, State of New Jersey, together with all
easements, rights-ofway and other rights, privileges and appurtenances
thereto (the “Leased Premises”). Lessor and Lessee are entering into this
Memorandum to state of record certain terms of the Ground Lease.
AGREEMENT
NOW,
THEREFORE, for and in consideration of the mutual undertakings set forth in the
Ground Lease, incorporating by this reference in this Memorandum the foregoing
Background in its entirety, and intending to be legally bound hereby, Lessor and
Lessee agree as follows:
The name
and address of Lessor is:Sayreville Economic and Redevelopment
Agency
000 Xxxx
Xxxxxx, Xxxxxxxxxx, XX 00000
The name
and address of Lessee is:Sayreville Seaport Associates, L.P.
0000
Xxxxxxxxxxx Xxxx., 0xx Xxxxx, Xxxx xx Xxxxxxx, XX
00000
The date
of the Ground Lease is as of ,
2008.
The
demised premises under the Ground Lease consists of the Leased Premises and is
described on Exhibit A attached hereto.
The
“Commencement Date” of the Ground Lease is , 2008. The term of the
Ground Lease begins on the Commencement Date and shall expire
on ,
20____.
The
Ground Rent is One Dollar ($1.00) for the entire Term of the Lease.
This
Memorandum is executed for the purpose of recordation in Middlesex County
Recorder of Deeds in order to give notice of certain terms of the Ground Lease,
and is not intended, and shall not be construed, to define, limit or modify the
Ground Lease. The terms, provisions and conditions of the Ground Lease are
incorporated by this reference in this Memorandum as if fully set forth in this
Memorandum.
IN
WITNESS WHEREOF, the undersigned have each caused this Memorandum of Ground
Lease to be duly executed and delivered under seal as of ,
2008.
LESSOR:
WITNESS/ATTEST:SAYREVILLE
SEAPORT ASSOCIATES, L.P.
By:Sayreville
Seaport Associates
Acquisition
Company, LLC, its General Partner
By:
Xxxxxxx
Xxxxx, President
LESSEE:
WITNESS/ATTEST: SAYREVILLE
ECONOMIC
AND
REDEVELOPMENT AGENCY
By:
Name:
Title:
COMMONWEALTH
OF
PENNSYLVANIA :
:ss.
COUNTY
OF :
On this
____ day of , 2008, before me, a Notary Public in
and for
the Commonwealth of Pennsylvania, the undersigned officer, personally
appeared, who
acknowledged him/herself to be the of SAYREVILLE
SEAPORT ASSOCIATES ACQUISITION COMPANY, LLC, the general partner of Sayreville
Seaport Associates, L.P., and that he/she as such officer, being authorized to
do so, executed the foregoing instrument for the purposes therein contained by
signing the name of such corporation by him/herself as such
officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Public
STATE OF
NEW JERSEY :
:ss.
COUNTY
OF :
On this
____ day of , 2008, before me, a Notary Public in and for
the Commonwealth of Pennsylvania, the undersigned officer, personally
appeared, who
acknowledged him/herself to be the of SAYREVILLE
ECONOMIC AND REDEVELOPMENT AUTHORITY, and that he/she as such officer, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of such corporation by him/herself as such
officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
_______________________________Notary
Public
{00037378;1}
EXHIBIT
A
LEGAL
DESCRIPTION OF THE LEASED PREMISES
Includes the meets and bounds legal description of real estate leased under
the memorandum of lease.
{00037378;1}
