exhibit103.htm


    
      
         


      

      
        
        

      

      
         


        
          EXHIBIT
10.3

        

      

    


    MORTGAGE
NOTE

    


    THIS
MORTGAGE NOTE IS NON-NEGOTIABLE

    


    $15,000,000.00                                                                                                October
15, 2008

    


    


    FOR VALUE RECEIVED, SAYREVILLE SEAPORT
ASSOCIATES, L.P., a Delaware limited partnership, ("Borrower") hereby
promises to pay to the order of NL Industries, Inc., a New Jersey corporation
("NL
Industries") and NL Environmental Management Services, Inc., a New Jersey
corporation ("NL
Environmental" together with NL Industries and any and all of their
successors and assigns and/or any other holder of this Note, collectively, the
"Lender"),
without offset, in immediately available funds in lawful money of the United
States of America, at its offices 5430 LBJ Freeway, Suite 1700, Dallas,
TX  75240, or at such other place or places as may hereafter be
designated by Lender, the principal sum of FIFTEEN MILLION DOLLARS and No/100 Dollars
($15,000,000.00) (or the unpaid balance of all principal advanced against this
Note, if that amount is less), together with interest on the unpaid principal
balance of this Note from day to day outstanding as hereinafter provided (the
"Loan").

    


    1.       Payment Schedule and
Maturity Date.  Principal and interest shall be due and payable
during the term of this Note as follows:

    


    (a)       Interest
only on the outstanding principal balance of this Note shall be due and payable
on the first day of November, 2008 and on the first day of each and every month
thereafter to maturity, as the same may be extended as hereinafter more
particularly set forth; and

    


    (b)       Unless
the maturity of this Note shall be extended as hereinafter more particularly set
forth in Section 2 hereof or unless sooner paid, this Note shall mature and the
entire principal balance of this Note, together with all accrued and unpaid
interest thereon, shall be due and payable on October 10, 2010 (the "Maturity
Date").

    


    2.           Extension or Modification of
the Note.

    


    (a)           Upon
the granting of the twelve (12) month extension option (the "Extension Option")
under and pursuant to the terms of Section 2 of those certain Mortgage Notes
(collectively, the "Bank Notes") in the
aggregate amount of $70,000,000.00, each of even date herewith, given by
Borrower to each of Bank of America, N.A. ("Administrative
Agent"), the Northern Trust Company ("Northern Trust") and
The Provident Bank ("Provident" and
Northern Trust together with the Administrative Agent, each individually a
"Bank" and
collectively, the "Banks"), the Maturity
Date of this Note shall be automatically extended (without the necessity of any
further documentation) for the same twelve (12) month period, expiring on
October 10, 2011.  Except as set forth in this Section 2(a), Lender
shall have no obligation to otherwise extend the Maturity Date of this
Note.

    


    (b)           Whether
or not the extension becomes effective, Borrower shall pay all out-of-pocket
costs and expenses incurred by Lender in connection with the proposed extension
(pre- and post-closing), including, without limitation, reasonable legal fees,
which shall be due and payable promptly upon written demand by Lender, and any
failure to pay such amounts shall constitute a Default hereunder.

    


    3.             Security; Loan
Documents.  This Note is secured by, among other things, a
Leasehold Mortgage, Assignment, Security Agreement and Fixture Filing, dated of
even date herewith, executed by Borrower in favor of  Lender covering
Borrower's leasehold interest in certain property in the Borough of Sayreville,
Middlesex County, New Jersey as more particularly described therein (the "Property"), (such
mortgage, as it may have been or may be amended, restated, modified or
supplemented from time to time, is herein referred to as the "Mortgage").  This
Note and all other documents now or hereafter evidencing, securing, guaranteeing
or executed in connection with the Loan, as the same have been or may be
amended, restated, modified or supplemented from time to time, are herein
sometimes called individually a "Loan Document" and
together the "Loan
Documents."  This Note is subject to the terms of that certain
Intercreditor, Subordination and Standstill Agreement, of even date herewith, by
and among Administrative Agent, on behalf of itself and the other Banks,
Borrower and Lender (the "Intercreditor
Agreement").

    


    4.           Interest
Rate.                                (a)           The
unpaid principal balance of this Note from day to day outstanding which is not
past due, shall bear interest at a fluctuating rate of interest per annum equal
to the interest rate set forth in and as determined pursuant to the Bank Notes,
as the same may be modified from time to time.  Any and all
modification of the Bank Notes regarding the determination of the interest rate
shall be binding on Lender and Borrower with respect to this Note without the
need for any further documentation.

    


    (b)           Any
principal of, and to the extent permitted by applicable law, any interest on
this Note, and any other sum payable hereunder, which is not paid when due
(after the expiration of any applicable grace and/or cure period provided
therefor) shall bear interest, from the date due and payable until paid, payable
on demand, at a rate per annum (the "Past Due Rate") equal
to four percent (4%) per annum in excess of the interest rate otherwise payable
under this Note, including the period following entry of any judgment on or
relating to this Note or the other Loan Documents.  Interest on any
such judgment shall accrue and be payable at the Past Due Rate, and not at the
statutory rate of interest, after judgment, any execution thereon, and until
actual receipt by Lender of payment in full of this Note and said
judgment.  Interest at the Past Due Rate shall be collectible as part
of any judgment hereunder and shall be secured by the Mortgage and the other
Loan Documents.  The Past Due Rate shall apply to all sums outstanding
under the Loan after a Default and also after entry of a judgment or judgments
against Borrower (whether in a mortgage foreclosure action or
otherwise).  Said judgment(s) shall bear interest at the Past Due Rate
until satisfied in full.  Notwithstanding anything to the contrary in
this Note, Borrower shall only be obligated to pay interest at the Past Due Rate
if, as and when the Past Due Rate is charged by the Banks under the Bank
Notes.

    


    5.           Prepayment.  Except
for interest payments as and when due under the Note, there shall be no
prepayments of this Note.  Notwithstanding the foregoing, if the Bank
Notes are prepaid in whole, the Note shall be prepaid in whole as
well.

    


    6.           Late
Charges.  If Borrower shall fail to make any payment under the
terms of this Note within ten (10) days after the date such payment is due,
Borrower shall pay to Lender on demand a late charge equal to four percent (4%)
of such payment.  Such ten (10) day period shall not be construed as
in any way extending the due date of any payment.  The "late charge"
is imposed for the purpose of defraying the expenses incident to handling such
delinquent payment.  This charge shall be in addition to, and not in
lieu of, any other remedy Lender may have and is in addition to any fees and
charges of any agents or attorneys which Lender may employ upon the occurrence
of a default hereunder, whether authorized herein or by law.

    


    7.           Certain Provisions Regarding
Payments.  All payments made as scheduled on this Note shall be
applied, to the extent thereof, to late charges, to accrued but unpaid interest,
unpaid principal, and any other sums due and unpaid to Lender under the Loan
Documents, in such manner and order as Lender may elect in its sole
discretion.  All prepayments on this Note shall be applied, to the
extent thereof, to accrued but unpaid interest on the amount prepaid, to the
remaining principal installments, and any other sums due and unpaid to Lender
under the Loan Documents, in such manner and order as Lender may elect in its
sole discretion, including but not limited to application to principal
installments in inverse order of maturity.  Except to the extent that
specific provisions are set forth in this Note or another Loan Document with
respect to application of payments, all payments received by Lender with respect
to the Loan shall be applied, to the extent thereof, to the indebtedness secured
by the Mortgage in such manner and order as Lender may elect in its sole
discretion, any instructions from Borrower or anyone else to the contrary
notwithstanding.  Remittances in payment of any part of the
indebtedness other than in the required amount in immediately available U.S.
funds shall not, regardless of any receipt or credit issued therefor, constitute
payment until the required amount is actually received by Lender in immediately
available U.S. funds and shall be made without offset, demand, counterclaim,
deduction, or recoupment (each of which is hereby waived) and accepted subject
to the condition that any check or draft may be handled for collection in
accordance with the practice of the collecting bank or
banks.  Acceptance by the holder hereof of any payment in an amount
less than the amount then due on any indebtedness shall be deemed an acceptance
on account only, notwithstanding any notation on or accompanying such partial
payment to the contrary, and shall not in any way excuse the existence of a
Default.

    


    8.           Defaults.                      (a)           It
shall be a default ("Default") under this
Note if (i) any principal, interest or other amount of money due under this Note
is not paid in full within ten (10) days after the date as and when due,
regardless of how such amount may have become due; (ii) any covenant, agreement
or condition herein (other than one involving the payment of money) is not fully
and timely performed, observed or kept and such failure remains uncured for more
than thirty (30) days after written notice thereof shall have been sent by
Lender to Borrower, unless the nature of the failure is such that (X) it cannot
be cured within the thirty (30) day period, (Y) Borrower institutes corrective
action within the thirty (30) day period, and (Z) Borrower diligently pursues
such action until the failure is remedied and completes the cure thereof within
a period of an additional thirty (30) days; (iii) there shall occur any default
or event of default under the Mortgage (or any of the NL Loan Documents as
defined in the Mortgage) which default or event of default remains uncured
beyond any applicable grace and/or cure period provided therefor; (iv) there
shall occur any "Default" under and as defined in any of the Bank Loan Documents
(as such term is defined in the Intercreditor Agreement) which Default remains
uncured beyond any applicable notice, grace and/or cure period provided for
thereunder and Administrative Agent has exercised on behalf of itself and the
other Banks any remedies provided for as a result thereof; (v) if Borrower or
any partner of borrower (including without limitation J. Brian O’Neill) is
declared bankrupt or files for bankruptcy protection or (vi) the death of J.
Brian O’Neill.  Upon the occurrence of a Default, which remains
uncured, except as otherwise set forth herein or in the Intercreditor Agreement,
Lender shall have the right to declare the unpaid principal balance and accrued
but unpaid interest on this Note, and all other amounts due hereunder and under
the other Loan Documents, at once due and payable (and upon such declaration,
the same shall be at once due and payable), to foreclose any liens and security
interests securing payment hereof and to exercise any of its or their other
rights, powers and remedies under this Note, under any other Loan Document, or
at law or in equity.  Notwithstanding anything to the contrary
contained herein, so long as any of the Bank Notes remain outstanding and until
such time as all Indebtedness (as such term is defined under that certain Loan
Agreement, dated as of even date herewith, by and among the Banks and Borrower)
has been paid in full and satisfied, Lender shall not exercise any rights,
remedies or powers hereunder and shall act only in accordance with the terms of
the Intercreditor Agreement.

    


    (b)           All
of the rights, remedies, powers and privileges (together, "Rights") of Lender
provided for in this Note and in any other Loan Document are cumulative of each
other and of any and all other Rights at law or in equity.  The resort
to any Right shall not prevent the concurrent or subsequent employment of any
other appropriate Right.  No single or partial exercise of any Right
shall exhaust it, or preclude any other or further exercise thereof, and every
Right may be exercised at any time and from time to time.  No failure
by Lender to exercise, nor delay in exercising any Right, including but not
limited to the right to accelerate the maturity of this Note, shall be construed
as a waiver of any Default or as a waiver of any Right.  Without
limiting the generality of the foregoing provisions, the acceptance by Lender
from time to time of any payment under this Note which is past due or which is
less than the payment in full of all amounts due and payable at the time of such
payment, shall not (i) constitute a waiver of or impair or extinguish the right
of Lender to accelerate the maturity of this Note or to exercise any other Right
at the time or at any subsequent time, or nullify any prior exercise of any such
Right, or (ii) constitute a waiver of the requirement of punctual payment and
performance or a novation in any respect.

    


    (c)           If
any holder of this Note retains an attorney in connection with any Default or at
maturity or to collect, enforce or defend this Note or any other Loan Document
in any lawsuit or in any probate, reorganization, bankruptcy, arbitration or
other proceeding, or if Borrower sues any holder of this Note in connection with
this Note or any other Loan Document and does not prevail, then Borrower agrees
to pay to such holder, in addition to principal, interest and any other sums
owing to Lender hereunder and under the other Loan Documents, all reasonable costs and
expenses incurred by such holder in trying to collect this Note or in any such
suit or proceeding, including, without limitation, reasonable attorneys' fees
and expenses, investigation costs and all court costs, whether or not suit is
filed hereon, whether before or after the maturity date of this Note, or whether
in connection with bankruptcy, insolvency or appeal, or whether collection is
made against Borrower or any guarantor or endorser or any other person primarily
or secondarily liable hereunder.

    


    9.           Commercial
Purpose.  Borrower warrants that the Loan is being made solely
to acquire or carry on a business or commercial enterprise, and/or Borrower is a
business or commercial organization.  Borrower further warrants that
all of the proceeds of this Note shall be used for commercial purposes and
stipulates that the Loan shall be construed for all purposes as a commercial
loan, and is made for other than personal, family, household or agricultural
purposes.

    


    10.           WAIVER OF JURY
TRIAL.  BORROWER AND LENDER HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO WHICH BORROWER AND LENDER MAY BE PARTIES, ARISING OUT
OF, IN CONNECTION WITH OR IN ANY WAY PERTAINING TO, THIS NOTE, THE MORTGAGE OR
ANY OF THE OTHER LOAN DOCUMENTS.  IT IS AGREED AND UNDERSTOOD THAT
THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL
PARTIES TO SUCH ACTION OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE
NOT PARTIES TO THIS NOTE.  THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY BORROWER, AND BORROWER HEREBY REPRESENTS THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS
EFFECT.  BORROWER FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN
REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY
INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.

    


    11.           Intentionally
Omitted.

    


    12.           Intentionally
Omitted.

    


               13.           Successors and
Assigns.  The terms of this Note and of the other Loan
Documents shall bind and inure to the benefit of the heirs, devisees,
representatives, successors and assigns of the parties.  The foregoing
sentence shall not be construed to permit (a) Borrower to assign the Loan or (b)
Lender, except as provided for under the Intercreditor Agreement, to assign,
transfer, endorse, pledge or encumber this Note.

    


               14.           General
Provisions.  Time is of the essence with respect to Borrower's
obligations under this Note.  If more than one person or entity
executes this Note as Borrower, all of said parties shall be jointly and
severally liable for payment of the indebtedness evidenced
hereby.  Borrower and all sureties, endorsers, guarantors and any
other party now or hereafter liable for the payment of this Note in whole or in
part, hereby severally (a) waive demand, presentment for payment, notice of
dishonor and of nonpayment, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices (except any notices
which are specifically required by this Note or any other Loan
Document  or which are otherwise required by law and which are not
waivable), filing of suit and diligence in collecting this Note or enforcing any
of the security herefor; (b) agree to any substitution, subordination, exchange
or release of any such security or the release of any party primarily or
secondarily liable hereon; (c) agree that Lender shall not be required first to
institute suit or exhaust its remedies hereon against Borrower or others liable
or to become liable hereon or to perfect or enforce its rights against them or
any security herefor; (d) consent to any extensions or postponements of time of
payment of this Note for any period or periods of time and to any partial
payments, before or after maturity, and to any other indulgences with respect
hereto, without notice thereof to any of them; and (e) submit (and waive all
rights to object) to non-exclusive personal jurisdiction of any state or federal
court sitting in the State of New Jersey and venue in the city or county in
which payment is to be made as specified in Section 1 of this Note, for the
enforcement of any and all obligations under this Note and the Loan Documents;
(f) waive the benefit of all homestead and similar exemptions as to this Note;
(g) agree that their liability under this Note shall not be affected or impaired
by any determination that any security interest or lien taken by Lender to
secure this Note is invalid or unperfected; (h) waive all errors, defects and
imperfections whatsoever of a procedural nature in the entering of any judgment
on this Note or any process or proceedings relating thereto; and (i) hereby
subordinate any and all rights against Borrower and any of the security for the
payment of this Note, whether by subrogation, agreement or otherwise, until this
Note is paid in full.  A determination that any provision of this Note
is unenforceable or invalid shall not affect the enforceability or validity of
any other provision and the determination that the application of any provision
of this Note to any person or circumstance is illegal or unenforceable shall not
affect the enforceability or validity of such provision as it may apply to other
persons or circumstances.  Except as provided herein with respect to
the amendment, modification or extension of the Bank Notes, this Note may not be
amended except in a writing specifically intended for such purpose and executed
by the party against whom enforcement of the amendment is
sought.  Lender is hereby authorized to disseminate any information it
now has or hereafter obtain pertaining to the Loan, including, without
limitation, any security for this Note and credit or other information on
Borrower, any of its principals and any guarantor of this Note, to any actual or
prospective assignee or participant with respect to the Loan, to any of Lender's
affiliates and to any other parties as necessary or appropriate in Lender's
reasonable judgment.  Captions and headings in this Note are for
convenience only and shall be disregarded in construing it.  THIS
NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY NEW
JERSEY LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE
UNITED STATES FEDERAL LAW.

    


               15.           Notices.  Except
as otherwise provided herein, all notices, and other communications required or
which any party desires to give under this Note or any other Loan Document shall
be in writing.  Unless otherwise specifically provided in such other
Loan Document, all such notices and other communications shall be deemed
sufficiently given or furnished if delivered by personal delivery, by courier,
by registered or certified United States mail, postage prepaid, or by facsimile
(with a confirmatory duplicate copy sent by first class United States mail),
addressed to the party to whom directed, at the addresses set forth herein
(unless changed by similar notice in writing given by the particular party whose
address is to be changed).  Any such notice or communication shall be
deemed to have been given and received either at the time of personal delivery
or, in the case of courier or mail, as of the date of first attempted delivery
at the address and in the manner provided herein, or, in the case of facsimile,
upon receipt; provided, however, that service of a notice required by any
applicable statute shall be considered complete when the requirements of that
statute are met.  Notwithstanding the foregoing, no notice of change
of address shall be effective except upon actual receipt.  This
Section shall not be construed in any way to affect or impair any waiver of
notice or demand provided in any Loan Document or to require giving of notice or
demand to or upon any person in any situation or for any reason.

    


    Notice
Address for Borrower:

    


    c/o
O'Neill Properties Group, L.P.

    2701
Renaissance Boulevard, 4th Floor

    King of
Prussia, Pennsylvania  19406

    Attn:

    Fax
No.:

    


    with copy
to:

    


    c/o
Macartney, Mitchell & Campbell, LLC

    2701
Renaissance Boulevard, 4th Floor

    King of
Prussia, Pennsylvania 19406

    Attn:  Sean
E. Mitchell, Esq.

    Fax
No.  215-754-4217

    


    Notice
Address for Lender:

    NL
Industries, Inc.

    5430 LBJ
Freeway

    Suite
1700

    Dallas,
TX  75240

    Attention:  General
Counsel

    


    with a
copy to:

    


    Christopher
R. Gibson, Esq.

    Archer
& Greiner, P.C.

    One
Centennial Square

    Haddonfield,
NJ  08033

    


    16           No Usury. It is
expressly stipulated and agreed to be the intent of Borrower and Lender at all
times to comply with applicable state law or applicable United States federal
law (to the extent that it permits Lender to contract for, charge, take,
reserve, or receive a greater amount of interest than under state law) and that
this Section shall control every other covenant and agreement in this Note and
the other Loan Documents.  If applicable state or federal law should
at any time be judicially interpreted so as to render usurious any amount called
for under this Note or under any of the other Loan Documents, or contracted for,
charged, taken, reserved, or received with respect to the Loan, or if Lender's
exercise of the option to accelerate the Maturity Date, or if any prepayment by
Borrower results in Borrower having paid any interest in excess of that
permitted by applicable law, then it is Lender’s express intent that all excess
amounts theretofore collected by Lender shall be credited on the principal
balance of this Note and all other indebtedness and the provisions of this Note
and the other Loan Documents shall immediately be deemed reformed and the
amounts thereafter collectible hereunder and thereunder reduced, without the
necessity of the execution of any new documents, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise
called for hereunder or thereunder.  All sums paid or agreed to be
paid to Lender for the use, forbearance, or detention of the Loan shall, to the
extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of the Loan until payment in full so that
the rate or amount of interest on account of the Loan does not exceed the
maximum lawful rate from time to time in effect and applicable to the Loan for
so long as the Loan is outstanding.

    


    THE LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.

    


    THERE ARE NO ORAL AGREEMENTS BETWEEN
THE PARTIES.

    


    SIGNATURE
OF BORROWER ON FOLLOWING PAGE

    


    



    
      
        
           

           

        

         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, Borrower has duly
executed this Note under seal as of the date first above written.

    


    WITNESS/ATTEST:                                                                           BORROWER:

    


    SAYREVILLE
SEAPORT ASSOCIATES, L.P.,

    a
Delaware limited partnership

    


    
      	
               
      

            	
              By:

            	
              Sayreville
      Seaport Associates Acquisition Company,
LLC,

            


    

    
      	
               
      

            	
              a
      Delaware limited liability company, its general
  partner

            


    

    


    


    By:                                                                 (SEAL)

    Name:

    Title:


    
      
        
           

           

        

         


      

      
         


        
          

        

      

      
         


      

    


    COMMONWEALTH
OF PENNSYLVANIA, COUNTY OF ________________, TO WIT:

    


    I HEREBY
CERTIFY, that on this ______ day of _______________, 2008, before me, the
undersigned Notary Public of said State, personally appeared _____________, who
acknowledged himself to be the __________________ of Sayreville Seaport
Associates Acquisition Company, LLC, a Delaware limited liability company and
the general partner of Sayreville Seaport Associates, L.P., a Delaware limited
partnership, known to me (or satisfactorily proven) to be the person whose name
is subscribed to the within instrument, and acknowledged that he executed the
same for the purposes therein contained as the duly authorized Vice President of
said limited liability company by signing the name of the limited liability
company by himself as Vice President.

    


    WITNESS
my hand and Notary Seal.

    


    


    


    _____________________________

    Notary
Public

    


    My
Commission Expires: