REINSTATED AND AMENDED SETTLEMENT AGREEMENT AND RELEASE

1.   Acquisition of the Property .  SSA and the County will purchase portions of the Property either in fee or by easements across the Property in phases as follows:

a.   The “Initial Closing” shall occur on or before August 1, 2008 (the “Initial Closing Date”).  At the Initial Closing:

i.   SSA will enter into a ground lease with SERA for that portion of the Property commonly referred to by the parties as the C Parcels and described in the legal description attached hereto as Exhibit C (“C Parcels”), subject to the C-Parcels Easement (defined below).  SERA shall ground lease such portions of the Property to SSA by entering into a Ground Lease Agreement with SSA and a Memorandum of Ground Lease is attached hereto as Exhibit Q .

ii.   the County will purchase from SERA an easement across a portion of the C Parcels along the entire waterfront as more fully described on Exhibit C-1 (the “C Parcels Easement”), subject to conditions set forth herein; and

b.   The “Second Closing” shall occur on the earlier of (i) that date which is six (6) months after the Initial Closing or (ii) fifteen (15) days after the date upon which the NJDEP provides written confirmation that all required remedial capping on that portion of the Property commonly referred to by the parties as Parcel A and described in the legal description attached hereto as Exhibit D   (“Parcel A”) has been completed (the “Second Closing Date”).

i.   At the Second Closing, SSA will purchase from SERA (A) an easement on Parcel A for the construction of an access road and turnaround (“Parcel A Easement”), as more fully described in Exhibit D hereto, and (B) the development rights to Parcel A, which development rights:  (i) are described on Exhibit E hereto (the “Development Rights”); and (ii) shall be transferred by SSA to Parcel C and/or Parcel B pursuant to the Redevelopment Agreement or shall otherwise be preserved so as to accrue to the benefit of SSA for use in the redevelopment of the C Parcels and/or Parcel B.  Also, at the Second Closing, the County will purchase from SERA Parcel A, and title to Parcel A shall be held by the County in its Open Space Inventory and shall be subject to the above-referenced easement as well as conservation easements to the other governmental entities that are assisting in the funding of the purchase of Parcel A hereunder as are required by those other government entities; and

ii.   Within thirty (30) days   of the Initial Closing Date, SSA will submit its application(s) for any and all permits necessary to allow SSA or SERA to cap Parcel A for remedial purposes.  SSA or SERA will thereafter use its best efforts to obtain any and all such permits at the earliest possible date.  SSA or SERA will use its best efforts to complete the capping of Parcel A to the satisfaction of the NJDEP at the earliest possible date, in no event later than that date which is six (6) months after the Initial Closing.

c.   The “Third Closing” shall occur on or before October 15, 2010 (the “Third Closing Date”).  At the Third Closing, SSA will enter into a ground lease with SERA for that portion of the Property commonly referred to by the parties as Parcel B and described in the legal description attached hereto as Exhibit F (“Parcel B”), subject to the easement referred to in Section 1.a.iii. above.  SERA shall ground lease such portions of the Property to SSA by entering into a Ground Lease Agreement and a Memorandum of Ground Lease is attached hereto as Exhibit Q .  

2.   Compensation of the NL Companies and Repayment of the County Loan .  The NL Companies hereby agree to accept Eighty-Two Million, Seven Hundred Fifty Thousand Dollars ($82,750,000) (the “Condemnation Price”) and SSA’s assumption of the Assumed Environmental Liabilities (as set forth in Section 5 of this Agreement) and SERA’s agreement to be the lead remediator under the Memorandum of Understanding (as set forth in Section 9.a.v.(A) of this Agreement) in compensation for the Property.  The Condemnation Price shall be paid to the NL Companies in installments as set forth below.  Further, as set forth below, the County hereby agrees to accept Forty-Two Million, Three Hundred Thousand Dollars ($42,300,000), plus administrative fees and costs, plus interest accruing on or after January 1, 2008, in full repayment of the County Loan, and such amount shall be paid to the County in installments as set forth below.  Notwithstanding the foregoing, to the extent that the administrative fees and costs and interest accruing on or after January 1, 2008 (collectively, the “SERA Payments”) are not paid through the First Closing, Second Closing and/or Third Closing, SERA agrees that it shall remain solely liable to the County for the SERA Payments unless otherwise agreed in writing by the County.  SERA agrees further that if any SERA Payments are due and owing by SERA to the County as of the Third Closing, SERA shall on or prior to the Third Closing either (i) pay such SERA Payments to the County in full or (ii) provide the County with substitute security reasonably satisfactory to the County to fully secure SERA’s obligation to pay such SERA Payments to the County (the “Substitute Security”).

The NL Companies, SERA and the County agree that immediately upon the parties’ execution of this Agreement, the NL Companies and SERA shall execute a consent order in the form attached hereto as Exhibit G (the “Consent Order”) and shall file the Consent Order with the Hon. Travis L. Francis, A.J.S.C. in the New Jersey Superior Court, Law Division, Middlesex County to petition the Court for immediate release of the Escrow Funds, together with all accrued interest thereon, to the Attorney Trust Account (the “Trust Account”) maintained by Archer & Greiner, PC (the “Trustee”).  The parties shall use their best efforts to expedite the release of the Escrow Funds to the Trust Account.  At the Initial Closing or as soon thereafter as the Escrow Funds, together with all accrued interest thereon, are in the Trust Account, the Trustee shall disburse:  (A) Twenty-Nine Million Dollars ($29,000,000) on behalf of SERA to the County, and the County agrees to accept such funds in partial repayment of the County Loan; (B) Four Million Five Hundred Fifty Thousand Dollars ($4,550,000) on behalf of SERA to the NL Companies as partial payment of the Condemnation Price; and (C) all of the accrued interest on the Escrow Funds to the NL Companies, and the parties expressly acknowledge and agree that such interest shall not be considered to be a payment by SERA toward the Condemnation Price and that the NL Companies are the only parties entitled to make a claim to such accrued interest.  The NL Companies and the County agree and acknowledge that their receipt of funds under this paragraph is not a condition precedent to the Initial Closing.

a.   Compensation Due at Initial Closing .  At the Initial Closing:

i.   SSA shall pay, on behalf of SERA, to the NL Companies the sum of Fifty Million Dollars ($50,000,000) in immediately-available, same-day funds via wire transfer as partial payment of the Condemnation Price (the “Initial Payment”); and

ii.   Subject only to the County’s receipt of the Easement Appraisal (as defined in Section 9.a.vii. below), at the Initial Closing, SERA shall receive from the County the sum of $3,000,000 representing consideration for the C Parcels Easement and the Parcel B Easement, and SERA shall cause said payment to be used for the purpose of a partial repayment of the County Loan by SERA.

b.   Compensation Due at Second Closing .  At the Second Closing:

i.   SSA shall pay, on behalf of SERA, to the NL Companies the sum of Eight Million Dollars ($8,000,000) in immediately-available, same-day funds via wire transfer as partial payment of the Condemnation Price.  In so doing, SSA will simultaneously acquire from SERA the Development Rights to Parcel A and the Parcel A Easement;

ii.   Subject only to the County’s receipt of the Parcel A Appraisal, SSA’s delivery of written confirmation from the NJDEP that all required remedial capping on Parcel A has been completed in accordance with applicable NJDEP rules and regulations and receipt of a No Further Action Letter or an equivalent document from the NJDEP with respect to Parcel A, at the Second Closing, SERA shall receive from the County the sum of $8,000,000 representing consideration for Parcel A, and SERA shall cause said payment to be used for the purpose of a partial repayment of the County Loan by SERA;

iii.   SERA agrees that immediately upon the parties’ execution of this Agreement, SERA shall:  (A) file an application(s) with the NJDEP for a grant(s) in the amount of Five Million Dollars ($5,000,000) to fund the purchase of Parcel A; and (B) request from the Borough’s Open Space Fund a grant in the amount of Eight Hundred Thousand Dollars ($800,000) to fund the purchase and preservation of Parcel A as open space.  To the best of SERA’s knowledge, the conditions required for the grant(s) from the NJDEP are the receipt of the Parcel A Appraisal (revised or updated to meet the NJDEP requirements), environmental clearance, and compliance with applicable NJDEP rules and regulations.  To the best of SERA’s knowledge, the conditions required for SERA to obtain a grant from the Borough’s Open Space Fund are the receipt of the Parcel A Appraisal and Borough governing body approval.  At the Second Closing, if the aforesaid grants are received, SERA shall pay to the NL Companies the sum of Five Million Eight Hundred Thousand Dollars ($5,800,000) in immediately-available, same-day funds via wire transfer as a partial payment of the Condemnation Price.  A failure by SERA for any reason to pay the NL Companies the sum of Five Million Eight Hundred Thousand Dollars ($5,800,000) at the Second Closing shall be considered a Default pursuant to Section 12 of this Agreement, and shall be subject to the arbitration provisions set forth in Section 13 of this Agreement; and

iv.   The NL Companies shall pay to SSA the sum of Two Million Dollars ($2,000,000), provided that:  (A) SSA has delivered to the NL Companies, the County and SERA a No Further Action Letter or an equivalent document from the NJDEP with respect to Parcel A that all required remedial capping on Parcel A has been completed and (B) the NL Companies have received all payments due under this Agreement pursuant to Section 2.a above and this Section 2.b .; and (C) there has been no  material breach or Default by any of the other parties hereunder which has not been cured within any applicable notice and cure period.

c.   Compensation Due at Third Closing .

i.  

ii.   SSA shall pay, on behalf of SERA, to the County the sum of Two Million, Three Hundred Thousand Dollars ($2,300,000) as the final payment by SSA of the County Loan; and

iii.   SERA shall pay to the County the SERA Payments and, if applicable, provide the Substitute Security to the County and so long as SSA has complied with all payment obligations in this Section 2.c., the County shall nevertheless release the County Mortgage on Parcel B as more particularly set forth under Section 4.c . of this Agreement below.

3.   Dismissal of Condemnation Action; Release of the NL Companies’ Equitable Lien .  The NL Companies agree to dismiss the Condemnation Action and to release their claimed equitable lien on the Property, in accordance with the following schedule:

a.   Upon the NL Companies’ receipt of the Consent Order executed and entered by the Court and the Initial Payment at the Initial Closing:

i.   The NL Companies and SERA shall jointly act to dismiss the Condemnation Action by executing, and seeking judicial entry of, the Stipulation of Dismissal with Prejudice attached as Exhibit H to this Agreement;

ii.   The NL Companies shall release their claimed equitable lien with respect to the C Parcels of the Property and the Parcel B Easement granted to the County by executing and delivering to SSA for recording the Release of Equitable Lien attached as Exhibit I to this Agreement;

iii.   The NL Companies’ remaining claimed equitable lien on Parcels A and B shall be in an amount not less than the aggregate amount the NL Companies are then owed under this Agreement, which amount the parties agree shall be considered unpaid compensation that the NL Companies are owed as a result of SERA’s taking of the Property by eminent domain.  The NL Companies will retain any and all rights and claims they may have as to Parcels A and B of the Property, and the parties expressly acknowledge and agree that, except as expressly set forth herein, the NL Companies do not waive, release or otherwise compromise any such rights, interests and/or liens in or to Parcels A and B of the Property, except for the Parcel B Easement granted to the County; and

iv.   The NL Companies may deliver to the County Clerk of Middlesex County for recording, immediately following the Initial Closing, a notice in a form acceptable to the NL Companies that places any subsequent purchaser of Parcels A and B on notice of the NL Companies’ claimed equitable lien on Parcels A and B.  Notwithstanding the foregoing, the County and SERA do not acknowledge the validity of the NL Companies’ claimed equitable lien.

b.   Upon the NL Companies’ receipt of all payments due the NL Companies at the Second Closing and the satisfaction or waiver of each condition to the Second Closing and provided that there has been no material breach or Default by any other party to this Agreement which has not been cured within any applicable notice and cure period:

i.   The NL Companies shall release their claimed equitable lien with respect to Parcel A of the Property by executing and delivering to the County for recording the Release of Equitable Lien attached as Exhibit J to this Agreement; and

ii.   The NL Companies’ remaining claimed equitable lien on Parcel B shall be in an amount not less than the aggregate amount the NL Companies is then owed under this Agreement, which amount the parties agree shall be considered unpaid compensation that the NL Companies are owed as a result of SERA’s taking of the Property by eminent domain.  The NL Companies will retain any and all rights and claims they may have as to Parcel B of the Property, and the parties expressly acknowledge and agree that, except as expressly set forth herein, the NL Companies do not waive, release or otherwise compromise any such rights, interests and/or liens in or to Parcel B of the Property, except as to the Parcel B Easement granted to the County; and

iii.   The NL Companies may deliver to the County Clerk of Middlesex County for recording, immediately following the Second Closing, a notice in a form acceptable to the NL Companies that places any subsequent purchaser of Parcel B on notice of the NL Companies’ claimed equitable lien on Parcel B.  Notwithstanding the foregoing, the County and SERA do not acknowledge the validity of the NL Companies’ claimed equitable lien.

c.   Upon the NL Companies’ receipt of all payments due the NL Companies at the Third Closing and the satisfaction or waiver of each condition to the Third Closing and provided that there has been no material breach or Default by any other party to this Agreement which has not been cured within any applicable notice and cure period, the NL Companies shall release their claimed equitable lien with respect to Parcel B of the Property by executing and delivering to SSA for recording the Release of Equitable Lien attached as Exhibit K to this Agreement, and, thereafter, the NL Companies shall no longer have any rights, interests, claims and/or liens in any part of the Property, except as otherwise provided in this Agreement.

4.   Release of the County’s Mortgage .  The County shall release the County’s Mortgage in accordance with the following schedule:

a.   At the Initial Closing:  (i) the Deed in Lieu of Foreclosure between SERA and the County shall be considered null and void and shall be destroyed, and (ii) the County shall release the County’s Mortgage on the C Parcels by executing and delivering to SSA for recording a Release of Mortgage in the form attached as Exhibit L to this Agreement.  Following the Initial Closing, the County’s Mortgage on Parcels A and B shall be reduced by the amount of the County Loan repaid at the Initial Closing;

b.   At the Second Closing, the County shall release the County’s Mortgage on Parcel A by executing and delivering to SERA for recording a Release of Mortgage in the form attached as Exhibit L to this Agreement.  Following the Second Closing, the County’s Mortgage on Parcel B shall be reduced by the amount of the County Loan repaid at the Initial Closing and the Second Closing; and

c.   At the Third Closing, the County shall release the County’s Mortgage on Parcel B by executing and delivering to SSA for recording a Release of Mortgage in the form attached as Exhibit L to this Agreement.  SERA shall continue to be liable for any SERA Payments owed by SERA to the County and, if applicable, SERA shall provide the County with the Substitute Security.

5.   Responsibility for Environmental Liabilities .

a.   Assumption by SSA of Certain Environmental Liabilities .  At the Initial Closing, except for those liabilities specifically excluded pursuant to Section 5.b below , SSA shall assume all responsibility for any and all environmental investigation and remediation obligations, now existing or hereafter arising, required to be conducted, whether by the United States Environmental Protection Agency (“EPA”), the NJDEP or any other regulatory agency, for the entire Property, as well as operation and maintenance of the closed landfill and any remedial measures now existing or hereafter to be investigated and/or implemented on or relating to the Property and any Hazardous Substances currently in, on, or under the Property (the “Assumed Environmental Liabilities”).  SSA shall conduct activities at the Property in furtherance of these obligations or as part of its redevelopment  (i) in accordance with the requirements of New Jersey law and, to the extent applicable, federal law and (ii) so as to not exacerbate contamination present at the Property as of the Initial Closing.  Subject to Section 5.b below , SSA expressly agrees that the term Assumed Environmental Liabilities shall mean and include but shall not be limited to:  (A) any and all requirements under ISRA and the Administrative Consent Order, dated November 14, 1997, between the NL Companies and the NJDEP; (B) any and all requirements under the Memorandum of Understanding to be entered into between SERA and the NJDEP pursuant to Section 9.a.iii. of this Agreement; (C) any and all operation and/or maintenance obligations associated with the items in (A) or (B) above and/or associated with the closed landfill on the Property; (D) post November 9, 2007 oversight or response costs incurred by the NJDEP, EPA or a third-party relating to the Property; and (E) any and all costs and expenses of any kind or nature incurred or expended by SSA relating in any way to the Property prior to the Initial Closing (the “SSA Pre-Closing Environmental Costs”).  SSA shall perform any and all environmental investigation and remediation required in connection with the Assumed Environmental Liabilities in accordance with NJDEP-approved workplans, the NJDEP’s Technical Regulations and all other applicable government requirements.  SSA shall retain its liability and responsibility, if any, for SSA Pre-Closing Environmental Costs, and SSA shall indemnify, defend, and hold the NL Companies and the County and their respective affiliates, partners, and lenders harmless from and against any and all expenses, fines, penalties claims, actions (administrative or otherwise), orders, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees and expenses, whether pursued by private third-parties or by an agency of any government, that arise out of, or in any way result from the SSA Pre-Closing Environmental Costs.  The parties expressly acknowledge and agree that nothing in this Agreement shall preclude SSA from challenging any determination by NJDEP or EPA as to the nature or extent of any Assumed Environmental Liabilities; provided that SSA shall not undertake any action that would result in the NL Companies becoming primarily responsible or primarily liable for any Assumed Environmental Liabilities.

b.   Non-Assumption of Certain Environmental Liabilities .  Notwithstanding the provisions of Section 5.a above , the term Assumed Environmental Liabilities shall not include, and SSA shall not assume any responsibility or liability for:

i.   any claims or potential claims for natural resource damages (“NRDs”) arising from or in any way relating to any past or current environmental harm to or Hazardous Substances currently or previously in, on, under, at, or that have migrated from the Property, including but not limited to NRDs relating to groundwater contamination in, at, under, or that has migrated from the Property (the “NRD Liabilities”).  The parties expressly acknowledge and agree that nothing in this Agreement shall be deemed an admission by the NL Companies, or either of them, of any liability to EPA, NJDEP or any other regulatory agency for any NRD Liabilities, and no party hereto shall attempt to use this Agreement to establish such liability; and

ii.   any environmental investigation and remediation required by EPA, NJDEP or any third-party relating to sediment contained in the Raritan River and/or the Tidal Wetlands on the Property, together with any NJDEP or EPA oversight costs relating thereto, and including any liability for NRDs associated therewith (the “Raritan River Liabilities”).  For purposes of this Section 5.b., the term “Tidal Wetlands” shall mean and include only those areas which are depicted as such on the map attached hereto as Exhibit M .  The NL Companies shall retain their liability and responsibility, if any, for any Raritan River Liabilities, and the NL Companies shall jointly and severally indemnify, defend and hold SSA, the County and SERA and their respective affiliates, partners, and lenders harmless from and against any and all expenses, fines, penalties claims, actions (administrative or otherwise), orders, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees and expenses, whether pursued by private third-parties or by an agency of any government, that arise out of, or in any way result from any Raritan River Liabilities.  If at any time, any remedial action is required for the Raritan River Liabilities, the NL Companies shall be the lead party for performance of such obligations.  The parties expressly acknowledge and agree that nothing in this Agreement shall be deemed an admission by the NL Companies, or either of them, of any liability to EPA, NJDEP, any other regulatory agency or any private third-parties for any Raritan River Liabilities, and no party hereto shall attempt to use this Agreement to establish such liability.  Notwithstanding the foregoing, if and to the extent that SSA, SERA or the County conduct any activities whatsoever, whether remedial, developmental or otherwise in any area of the Raritan River adjacent to or nearby the Property and/or the Tidal Wetlands, SSA, SERA or the County, as the case may be, shall be liable for, and the foregoing indemnity of the NL Companies shall not apply with respect to the party that actually performs the activities, to the extent of any costs and expenses:  (A) incurred in performing such activities, including without limitation any costs or expenses associated with the dredging and disposal of contaminated sediments required in connection with such activities; and (B) related to any exacerbation of any hazardous condition in any area of the Raritan River and/or the Tidal Wetlands as a result of SSA’s,  SERA’s or the County’s performance of such activities (liabilities pursuant to Subsections (A) and (B) referred to herein collectively as “Exacerbation River Liabilities”).  The parties hereby agree that SSA’s, SERA’s  or the County’s performance of any and all activities at the Property in compliance with all applicable laws (including, without limitation, the terms and conditions of any and all permits issued by the NJDEP) shall not constitute exacerbation of any hazardous condition in any area of the Property including the Raritan River and/or Tidal Wetlands; and

iii.   any and all oversight or response costs incurred by NJDEP, EPA or a third-party relating to the Property prior to November 9, 2007, and any and all costs and expenses of any kind or nature incurred or expended by the NL Companies relating in any way to the Property prior to the Initial Closing (collectively, the “NL Pre-Closing Environmental Costs”).  The NL Companies shall retain their liability and responsibility, if any, for NL Pre-Closing Environmental Costs, and the NL Companies shall jointly and severally indemnify, defend, and hold SSA, the County and SERA and their respective affiliates, partners, and lenders harmless from and against any and all expenses, fines, penalties claims, actions (administrative or otherwise), orders, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees and expenses, whether pursued by private third-parties or by an agency of any government, that arise out of, or in any way result from the NL Pre-Closing Environmental Costs.  The parties expressly acknowledge and agree that nothing in this Agreement shall be deemed an admission by the NL Companies, or either of them, of any claimed liability to EPA, NJDEP, any other regulatory agency or any private third-parties for any NL Pre-Closing Environmental Costs, and no party hereto shall attempt to use this Agreement to establish such liability.

c.   Indemnification by SSA .  SSA agrees to indemnify, defend and hold harmless the NL Companies, SERA and the County from any and all claims, actions (administrative or otherwise), orders, penalties, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees and expenses, whether pursued by private third-parties or by an agency of any government, that arise out of or in any way result from the Assumed Environmental Liabilities, including those that are alleged to have occurred because of the condition of the Property resulting from SSA’s performance of or failure to perform the Assumed Environmental Liabilities or activities undertaken on the Property by SSA or its contractors, subcontractors, invitees or agents (including any exacerbation of existing contamination) (“Indemnified Claims”).  Without limiting the generality of the foregoing, the term “Indemnified Claims” includes any claims, actions, orders, penalties, damages, liabilities, costs and expenses arising out of or resulting from SSA’s actions or inactions with respect to: (i) after the Initial Closing, completing the investigation and remediation of the Assumed Environmental Liabilities; (ii) after the Initial Closing, operating and maintaining any remedial measure heretofore or hereafter implemented on the Property; or (iii) after the Initial Closing, operating and maintaining the closed landfill located on the Property.  Without limiting the generality of the foregoing, SSA acknowledges and agrees that the indemnity set forth in this Section 5.c shall extend to any and all penalties, fines, fees, interest or other charges assessed by the NJDEP or any other federal, state or local government agency relating to the Assumed Environmental Liabilities, excluding NL Pre-Closing Environmental Costs.  The parties expressly acknowledge and agree, however, that the term “Indemnified Claims” does not mean or include any liability associated with (i) NRD Liabilities; (ii) Raritan River Liabilities; (iii) NL Pre-Closing Environmental Costs; (iv) any and all claims for personal injury and/or property damage (including diminution in value with respect to property damage) resulting from Hazardous Substances on, migrating from or that have migrated from the Property and any and all consequential or indirect damages of any kind or nature related thereto.  This indemnification also does not cover any claims or liabilities to the extent resulting from any negligence or willful misconduct (either through acts or omissions) of any of the Indemnified Parties occurring on or after the date of execution of this Agreement.

d.   Default as to Assumed Environmental Liabilities .

i.   In the event SSA defaults on its obligations to remediate at the Property those conditions that are Assumed Environmental Liabilities and, as a result, SERA removes SSA as the party performing the remediation at the Property, SERA shall select a certified contractor mutually acceptable to SERA and the NL Companies to complete any and all remaining environmental investigation and/or remediation obligations required in connection with the Assumed Environmental Liabilities.  In that event, SERA shall have reasonable access to the Property to complete any and all investigation or remedial activities, and shall have the full benefit of and access to all remaining funds previously established by or on behalf of SSA as Financial Assurance (as defined in Section 9.a.iii. below  for use in completing any and all of the environmental investigation and/or remediation obligations associated with the Assumed Environmental Liabilities (including, but not limited to, use of such funds as security for repayment of any EIT loan(s) or use of such funds to pay for investigation or remediation costs).

ii.   In the event that SERA defaults on its obligations under its Memorandum of Understanding with the NJDEP and, as a result, the NJDEP removes SERA as the lead remediator at the Property, the parties agree that, as among the parties, the parties shall fully cooperate with the NL Companies in its efforts to be designated by NJDEP as the lead remediator of the Property.  In the event NJDEP designates the NL Companies as the lead remediator of the Property, the NL Companies immediately shall regain sole control over any and all environmental investigation or remedial activities at the Property, shall be the lead remediator at the Property, shall have reasonable access to the Property to complete any and all investigation or remedial activities, and shall have the full benefit of and access to all remaining funds previously established by or on behalf of SSA as Financial Assurance (as defined in Section 9.a.iii. below  for use in completing any and all of the environmental investigation and/or remediation obligations associated with the Assumed Environmental Liabilities (including, but not limited to, use of such funds as security for repayment of any EIT loan(s) or use of such funds to pay for investigation or remediation costs).  NL’s rights in the event of a default under this Section shall be in addition to any and all remedies that NL may have at law or in equity against SSA and SERA.

e.   Reliance .  The parties expressly acknowledge and agree that the NL Companies’ willingness to enter into this Agreement and all other agreements and documents contemplated hereby to which the NL Companies are parties is expressly in reliance upon and is conditioned upon the promises made by SSA and SERA in this Section 5 and the promises made by the County in Section 5.d. above, that the NL Companies would not have entered into this Agreement but for these promises, and that such promises are part of the compensation that the NL Companies are receiving in exchange for the NL Companies’ agreement to dismiss the Condemnation Action and release their equitable lien.

f.   Assignment of Environmental Permits .  At or after the Initial Closing, the NL Companies will assign, to the extent assignable by law and to the extent requested by SSA, any and all permits currently held by the NL Companies that are necessary for SSA’s performance of the Assumed Environmental Liabilities (the “Environmental Permits”), a list of which is attached hereto as Exhibit N .  SSA shall assume all responsibility under the Environmental Permits.  SSA shall, to the extent assignable by law, if requested by SERA, assign any Environmental Permit to SERA in the event that SSA is removed by SERA as the lead remediator pursuant to Section 5.d.i. above.  SERA shall, to the extent assignable by law, if requested by the NL Companies, assign any Environmental Permit to the NL Companies in the event that SERA is removed by the NJDEP as the lead remediator pursuant to Section 5.d.ii. above and the NL Companies is designated by NJDEP as the lead remediator of the Property.

6.   Availability of Funds .  SSA represents and warrants to each of parties that it has obtained firm loan commitments in the amount of $110,000,000, which commitments together with SSA’s capital contribution are sufficient to fund the acquisition and pre-development of the C Parcels, the acquisition of the Parcel A Development Rights and Parcel A Easement and the completion of the Assumed Environmental Liabilities up to Twenty Million Dollars ($20,000,000).  SSA shall promptly provide notice to the parties to this Agreement if SSA receives any default notice from its lender(s) and shall further advise the parties of the remedial actions taken by SSA to cure any such default.

7.   Releases and Covenants Not to Sue .

a.   Release and Covenant Not to Sue by SSA .

i.   Except for the Raritan River Liabilities, which release shall not be effective until such time as the NL Companies have satisfied any obligations that they may have with respect thereto, the following release shall be effective for each Parcel when both of the following conditions have been satisfied for such Parcel: (1) completion of the applicable closing, and (2) written confirmation from the NJDEP in one or more letters, that no further action is required with respect to  all Assumed Environmental Liabilities relating to such parcel (the “SSA Release”): except for any claims relating to a party’s failure to satisfy any of its obligations set forth in this Agreement or an Exhibit hereto, including but not limited to the Raritan River Liabilities and the NL Pre-Closing Environmental Costs, SSA, for itself and its heirs, assigns, executors, administrators and successors, hereby acknowledges full and complete satisfaction of and releases and forever discharges the NL Companies, SERA and the County, their respective successors in interest and successors in title (excluding SSA and its successors in interest and successors in title), their respective past, present and future assigns, and all of their respective employees, officers, tenants, predecessors, directors, agents, shareholders, fiduciaries, representatives, attorneys, engineers, insurers’ divisions, subsidiaries and affiliates, of and from any and all claims, demands, actions, rights, losses, expenses, fees, costs, liabilities and causes of action, of every kind and character, whether asserted or unasserted, whether known or unknown, suspected or unsuspected, in law or in equity, for or by reason of any matter, cause or thing whatsoever, that SSA may have in the past, now has, or may in the future have arising in relation the Property.  Without limiting the generality of the foregoing and subject to the exceptions provided above, SSA releases any and all claims and causes of action that it has or may in the future have (including, but not limited to, claims for cost recovery, contribution or unjust enrichment) related to any costs or expenses incurred by SSA: (A) to investigate or remediate environmental contamination on or emanating from the Property, (B) to perform operation and maintenance of any remedial measure heretofore or hereafter implemented on the Property, (C) to perform operation and maintenance of the closed landfill on the Property, or (D) to evaluate, dispute or resolve claims or potential claims for injury to natural resources alleged to have been caused by Hazardous Substances on the Property or emanating from the Property.

ii.   Prior to the effective date of the SSA Release in accordance with subsection 7.a.i. above, and except for any claims relating to a party’s failure to satisfy any of its obligations set forth in this Agreement or an Exhibit hereto, including but not limited to the Raritan River Liabilities and the NL Pre-Closing Environmental Costs, SSA, for itself and its heirs, assigns, executors, administrators and successors, hereby covenants not, and not to cause or encourage any third party, to sue or take any judicial or administrative action of any kind or nature against the NL Companies, SERA a