exhibit102.htm


    
      
         


      

       

      
         


        
          EXHIBIT
10.2

        

      

    


    AMENDMENT TO RESTATED AND
AMENDED SETTLEMENT AGREEMENT AND RELEASE

    


    THIS AMENDMENT TO RESTATED AND
AMENDED SETTLEMENT AGREEMENT AND RELEASE (this “Amendment”) is made
this 25th day of September, 2008 by and among 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”); the
Sayreville Economic and Redevelopment Agency, a municipal redevelopment agency
(“SERA”); Sayreville Seaport Associates, L.P., a Delaware limited partnership
authorized to transact business in New Jersey (“SSA”); and the County of
Middlesex, a county organized under the laws of New Jersey (the
“County”).  Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Settlement Agreement (defined
below).

    


    WHEREAS, the parties entered
into that certain Reinstated and Amended Settlement Agreement and Release dated
June 26, 2008 (the “Settlement Agreement”); and

    


    WHEREAS, the parties wish to
amend the Settlement Agreement as more particularly set forth in this Amendment
below.

    


    NOW THEREFORE, in
consideration of good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, intending to be legally bound hereby, the parties
agree as follows:

    


    1. Amendment
to Section 1.a. of Settlement Agreement.  Section 1.a. of the
Settlement Agreement is hereby deleted in its entirety and the following new
Section 1.a. is hereby substituted in lieu thereof:

    


    “a.           The
“Initial Closing” shall occur on or before September 25, 2008 (the “Initial
Closing Date”).  At the Initial Closing:”

    


    The
foregoing amendment to Section 1.a. of the Settlement Agreement shall have no
effect on subsections 1.a.i., ii. and iii., which subsections shall remain as
originally drafted in the Settlement Agreement.

    


    2.           Amendment
to Section 9.a.iii.(A) of Settlement Agreement. The final sentence of
Section 9.a.iii.(A) of the Settlement Agreement is hereby deleted in its
entirety and the following new sentences are hereby substituted in lieu
thereof:

    


    “SSA
covenants and agrees that, prior to making a request for funds under the
Financial Assurance Agreement, SSA shall first utilize any state grant funds,
EIT loans, or other public grants which have already been received by SERA and
are available at the time such funds are necessary for SSA to undertake
remediation at the Property.  To the extent that there are
insufficient state grant funds, EIT loans and other public grants received by
SERA to perform the remediation at the Property or if costs related to the
remediation are not eligible for public funds, SSA shall have the right to draw
funds under and subject to the terms of the Financial Assurance Agreement to pay
for Eligible Uses.”

    


    3.           Amendment
to Section 9.a.v.(D) of Settlement Agreement.  Section
9.a.v.(D) of the Settlement Agreement is hereby deleted in its entirety and the
following new Section 9.a.v.(D) is hereby substituted in lieu
thereof:

     

    
      	
              “(D)

            	
              HDSRF
      Release.  On or by the Initial Closing, the NJDEP shall
      have entered into (i) a settlement agreement with the NL Companies in a
      form reasonably acceptable to the NL Companies, pursuant to which the
      NJDEP shall release the NL Companies from any claims or liabilities
      relating to any HDSRF grant funds provided to SERA in connection with the
      Property and (ii) a settlement agreement with SSA in a form reasonably
      acceptable to SSA, pursuant to which the NJDEP shall release SSA from any
      claims or liabilities relating to any HDSRF grant funds provided to SERA
      in connection with the Property.”

            


    

     

    4.           Amendment
to Section 10.a. of Settlement Agreement.  The words “August 1,
2008” at the end of the final sentence of Section 10.a. of the Settlement
Agreement are hereby deleted and the words “September 25, 2008” are hereby
substituted in lieu thereof.

     

    5.           New
Section 29 to Settlement Agreement.  The following new Section
29 is hereby added to the Settlement Agreement:

     

    
      	
              “29.

            	
              Additional NJDEP
      Security for Cost Overruns.  SSA hereby agrees that it
      shall deposit the first Ten Million Dollars ($10,000,000.00) of sales tax
      reimbursement payments received by SSA from the Brownfield Site
      Reimbursement Fund (the “Sales Tax Reimbursement Funds”) into an escrow
      account to provide additional security to fund any cost overruns in
      connection with the Assumed Environmental Liabilities (the “Assumed
      Environmental Liabilities Cost Overruns”).  The Sales Tax
      Reimbursement Funds shall be held by an escrow agent acceptable to the
      Parties as well as the New Jersey Department of Environmental Protection
      (“NJDEP”) and the New Jersey Economic Development Agency (“NJEDA”), in an
      interest bearing escrow account (the “Sales Tax Escrow Account”) and,
      thereafter, distributed to fund any Assumed Environmental Liabilities Cost
      Overruns in accordance with an Escrow Agreement (the “Sales Tax Escrow
      Agreement”) acceptable to the Parties as well as NJDEP and
      NJEDA.  The Sales Tax Escrow Agreement shall provide that SSA,
      SERA and the NL Companies shall have the right to draw Sales Tax
      Reimbursement Funds held under the Sales Tax Escrow Agreement to fund the
      Assumed Environmental Liabilities Cost Overruns in the same manner as each
      such party has the right to access the Financial Assurance under this
      Agreement and the Financial Assurance Agreement.   The
      Sales Tax Escrow Agreement shall also provide that upon NJDEP’s issuance
      of a No Further Action letter for the Property (excluding Raritan River
      Liabilities and Tidal Wetlands on the Property), any and all amounts
      remaining in the Sales Tax Escrow Account, including all accrued interest
      thereon, shall be distributed as follows: (i) to the extent NJEDA has not
      been reimbursed Twenty Million Dollars ($20,000,000.00) in accordance with
      the terms of Paragraph 30 below, to the NJEDA until such Twenty Million
      Dollar ($20,000,000.00) payment has been made and then (ii) any remaining
      funds shall be distributed to SSA.”

            


    

     

    6.           New
Section 30 to Settlement Agreement.  The following new Section
30 is hereby added to the Settlement Agreement:

     

    
      	
              “30.

            	
              Reimbursement of
      $20,000,000.00 of HDSRF Grants.  In consideration of the
      grant of HDSRF funds to SERA for the project, SSA hereby agrees that
      following the funding of the Sales Tax Escrow Account in accordance with
      the terms of Section 29 of this Agreement, SSA shall pay to NJEDA the next
      Twenty Million Dollars ($20,000,000.00) of Sales Tax Redevelopment Funds
      received by SSA from the Brownfield Site Reimbursement Fund for deposit to
      the HDSRF.  Following such Twenty Million Dollar
      ($20,000,000.00) payment, SSA shall have the exclusive right to all
      additional Sales Tax Reimbursement Funds received by SSA from the
      Brownfield Site Remediation Fund.”

            


    

     

    7.           New
Section 31 to Settlement Agreement.  The following new Section
31 is hereby added to the Settlement Agreement:

     

    
      	
              “31.

            	
              Security
      Interest in Sales Tax Reimbursement Funds.  As further
      consideration for the grant of the HDSRF funds to SERA, prior to or
      concurrent with the execution of the HDSRF grant agreement between NJEDA
      and SERA for all or a portion of the Twenty Million Dollars
      ($20,000,000.00) of HDSRF grants, SSA agrees to assign its right to
      receive Ten Million Dollars ($10,000,000.00) plus an amount of Sales Tax
      Reimbursement Funds equal to the actual amount of HDSRF grants received of
      Sales Tax Reimbursement Funds to the NJEDA in accordance with the terms of
      an assignment (the “Assignment”) in form acceptable to the NJEDA, together
      with an opinion from SSA’s legal counsel confirming said assignment as a
      perfected security interest, in form and content acceptable to the
      NJEDA.  SSA and SERA further agree that all appropriate
      documentation will be executed to ensure that the requirements of this
      Paragraph 31 shall be imposed upon any successor to
      SSA.  Notwithstanding anything to the contrary above, any
      assignment of Sales Tax Reimbursement Funds in connection with the first
      Ten Million Dollars ($10,000,000.00) shall be administered in accordance
      with the terms of Section 29 above.  The Assignment shall
      provide that following the repayment of the actual amount of HDSRF grants
      received from Sales Tax Reimbursement Funds assigned by SSA to the NJEDA,
      the NJEDA shall reassign the right to receive Sales Tax Reimbursement
      Funds to SSA.”

            


    

     

    8.           Ratification.  Except
as modified and amended by the terms of this Amendment, all of the terms,
covenants, representations, warranties, waivers and agreements set forth in the
Settlement  Agreement remain in full force and effect and are
incorporated herein by reference.

    


    9.           Binding
Effect.  This Amendment and the Settlement Agreement, as
amended hereby, shall be binding upon and inure to the benefit of the parties
hereto and to their respective successors and assigns.

    


    10.           Counterparts.  This
Amendment may be executed by facsimile and in two (2) or more counterpart
copies, each of which when so executed shall be deemed an original and all of
which when taken together shall constitute one and the same
instrument.

    


    11.           Entire
Agreement.  This Amendment contains, and is intended as, a
complete statement of all of the terms between the parties pertaining to the
matters hereof, supersedes any previous agreements and understandings between
the parties with respect to those matters, and cannot be changed or terminated
orally.

    


    12.           Governing
Law.  This Amendment shall be governed by and construed in
accordance with the substantive laws of the State of New Jersey.

    


    REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK

    SIGNATURE
PAGE FOLLOWS

    


    


    IN WITNESS WHEREOF, the
parties, intending to be legally bound thereby, have executed this Amendment as
of the date set forth above.

    


    NL
INDUSTRIES, INC.

    


    By:                                                                

    Name:                                                                           

    Title:                                                                           

    


    


    NL
ENVIRONMENTAL MANAGEMENT SERVICES, INC.

    


    By:                                                                

    Name:                                                                           

    Title:                                                                           

    


    


    SAYREVILLE
ECONOMIC AND REDEVELOPMENT AGENCY

    


    By:                                                                

    Name:                                                                           

    Title:                                                                           

    


    


    SAYREVILLE
SEAPORT ASSOCIATES, L.P.

    


    By: Sayreville Seaport Associates
Acquisition

    Company, LLC, its general
partner

    


    By:                                                                

    Name:
Richard Heany

    Title:
President

    


    


    COUNTY
OF MIDDLESEX

    


    By:                                                                

    Name:                                                                           

    Title:                                                                           

    


    



    
      
        
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