SETTLEMENT AGREEMENT
WHEREAS, Plaintiffs and certain third-party defendants
(collectively "Settling Generators/Transporters") are members of
the 216 Paterson Plank Road Cooperating PRP Group (identified
individually on the list attached hereto as Exhibit A) which has
been addressing issues related to contamination at an NPL site in
Carlstadt, New Jersey, known as 216 Paterson Plank Road, and more
particularly described as Lots 1-5 of Block 124 on the Tax Map of
the Borough of Carlstadt (the "Carlstadt Site"); and
WHEREAS, Plaintiffs have commenced litigation against, inter
alia, defendants Transtech Industries, Inc. ("Transtech"), Inmar
Associates, Inc. ("Inmar") and Marvin H. Mahan ("Mahan")
(collectively "Settling Defendants") entitled AT&T Technologies
Inc., et al. v. Transtech Industries. Inc.. et al. (Civil Action
No. 88-4267 (HLS) (the "Litigation") in order to recover costs
incurred and to be incurred by Plaintiffs in connection with the
investigation, remediation and post-remediation monitoring of
environmental hazards associated with the Carlstadt Site (the
"Response Costs"), including but not limited to, on-site and off-
site soil contamination, groundwater contamination and
contamination in the sediments of Peach Island Creek, Berry's Creek
and the Hackensack River (the "Carlstadt Site Contamination") and
natural resource damages; and to declare and fix the liability of
Settling Defendants for conditions and damages at or arising from
the Carlstadt Site; and
WHEREAS, Transtech (formerly named Scientific, Inc. and
Scientific Chemical Treatment Company, Inc.) is alleged to have
been an operator, as defined in 42 U.S.C. Section 9607(a), at the
Carlstadt Site from approximately November 1965 until approximately
November 1970 and to have continued to use portions of the
Carlstadt Site thereafter until at least 1974, a period during
which various and discrete discharges and releases of hazardous
substances are alleged to have occurred at the Carlstadt Site; and
WHEREAS, Inmar, for itself and as successor to Inmar Realty,
Inc. and Sparrow Associates, Inc. (collectively hereinafter
denominated "Inmar"), is alleged to be, and since approximately
November 1965, to have been an owner, as defined in 42 U.S.C.
Section 9607(a), of the Carlstadt Site, during which period various
discharges and releases of hazardous substances are alleged to have
occurred; and
WHEREAS, Mahan was at all relevant times a principal of Inmar
and Transtech; and
WHEREAS, Settling Defendants have brought third-party claims
against certain primary and excess insurance carriers, namely,
Allstate Insurance Company ("Allstate"); Continental Insurance
Company ("Continental"); City Insurance Company ("City"); National
Union Fire Insurance Company ("National Union"); certain
underwriters at Lloyds London and companies subscribing to certain
excess insurance policies ("Lloyds/London Market"); First State
Insurance Company ("First State"); Hartford Insurance Company
("Hartford"); and Mount Vernon Insurance Company/U.S. Liability
Insurance, Company ("Mt. Vernon/U.S. Liability") seeking a
declaratory judgment that coverage for their liabilities in the
Litigation exists under various comprehensive general liability
insurance policies; and
WHEREAS, Settling Defendants have brought counterclaims and
third-party claims against various persons, including Settling
Generators/Transporters, and other entities alleged to have been
generators or transporters who arranged for disposal of waste at
the Carlstadt Site; and
WHEREAS, Settling Generators/Transporters and Settling
Defendants have reviewed documents and interrogatory responses
produced by all parties in discovery, as well as records produced
by the United States Environmental Protection Agency ("EPA") and
the U.S. Attorney's Office relating to a grand jury investigation
involving the Carlstadt Site, and testimony of witnesses with
knowledge of the events; and
WHEREAS, Settling Generators/Transporters have expended and
will expend substantial amounts in connection with the design and
implementation of a Remedial Investigation and Feasibility Study
pursuant to either an Administrative Order on Consent in Matter of
Scientific Chemical Processing Site, Carlstadt, Bergen County, New
Jersey, Index No. II CERCLA-50114, dated September 30, 1985 or a
unilateral Administrative Order in Matter of Alfa Ink & Chemc.
Corp., Index No. II CERCLA-60102, dated October 23, 1985; and
WHEREAS, Settling Generators/Transporters have expended and
will expend substantial amounts in connection with the design,
implementation and operation of an Interim Remedy pursuant to a
unilateral Administrative Order in Matter of Scientific Chemical
Processing Site, Carlstadt, Bergen County, New Jersey, Index No. II
CERCLA-0016, dated September 28, 1990, consisting of the
construction of a slurry wall, dewatering of the Carlstadt Site
down to the clay layer, off-site treatment of removed ground water
and placement of an interim cap over the Carlstadt Site
(hereinafter the "Interim Remedy"); and
WHEREAS, Inmar has expended substantial sums in connection
with removal of certain materials from the Carlstadt Site and
Transtech has expended substantial sums in connection with the
Interim Remedy at the Carlstadt Site; and
WHEREAS, EPA has not yet determined the nature or cost of a
permanent remedy at the Carlstadt Site and such a determination is
not expected to be made for several years; however, the cost of a
permanent remedy is expected to far exceed the cost of the Interim
Remedy; and
WHEREAS, in order to avoid the costs and inconveniences of
protracted litigation and further the goal of funding the
remediation of the Carlstadt Site, Settling Generators/Transporters
and Settling Defendants have agreed to resolve amicably and
compromise their differences and, except as hereinafter
specifically excluded, settle all claims they have against one
another for any and all Response Costs related to the Carlstadt
Site Contamination;
IT IS NOW, THEREFORE, AGREED AND STIPULATED by and among the
undersigned parties that:
SETTLEMENT PAYMENTS
In satisfaction of Settling Defendants' share of liability for
the Carlstadt Site Contamination, Settling Defendants agree as
follows:
1. Settling Defendants agree to pay to Settling
Generators/Transporters the sum of $4,220,000 to be paid as
follows:
A. Payments totalling $145,000 shall be made in two $72,500
cash payments from Settling Defendants, the first payment to be
made immediately upon execution of this Agreement; and the second
payment to be made by May 31, 1995.
B. Payment of the remaining $4,075,000 shall be made no
later than 10 days after execution of this Agreement by Settling
Defendants. Settling Defendants represent that this sum consists
of the entire cash proceeds previously paid by Settling Defendants'
primary insurance carriers, namely, Allstate, Continental, City and
National Union in settlement of the Settling Defendants' claims for
indemnification for liabilities related to the Carlstadt Site,
together with the entire proceeds of settlement of a claim asserted
by Inmar against Mount Vernon/U.S. Liability, an excess insurer of
Scientific Chemical Processing Co., Inc., Inmar's lessee. All of
these insurance carrier settlement proceeds have been and are
currently held in trust for Settling Generators/Transporters by
Schenck, Price, Smith & King, Esqs. Unless otherwise directed by
Settling Generators/Transporters in writing to Settling Defendants,
the payments described in subparagraphs A and B of this paragraph
shall be paid by direct electronic transfer and wired in accordance
with the following instructions:
PNC Bank
Philadelphia, PA ABA #031000053
Credit 3-5 Trust Funds A/C #110-262-1
For further credit to Carlstadt Committee Fund
Account 0160822
Attn: Tom Hatton, Ext. 8887
1700 Market Street, Suite 1412
Philadelphia, Pennsylvania 19103-3914
C. As further consideration for this settlement, each of the
Settling Defendants, for and as to itself alone, represents that it
has not now made a decision to file a petition in bankruptcy under
chapters 7, 11 or 13.
2. As additional consideration, Settling Defendants agree to
and hereby do assign to Settling Generators/Transporters,
individually and collectively, any and all claims and rights of
action against Lloyds/London Market issued to, or naming as
insureds, Transtech or its predecessor(s) in name, Scientific
Chemical Treatment Company, Inc. or Scientific, Inc., and/or Inmar
at any time during the period extending from November 1, 1966
through November 30, 1973. This includes all or part of the
following policies but does not include the assignment of any
rights or claims for any policy years prior to November 1, 1966:
Policy No. Policy Period
020784000 11/20/64 - 11/20/67
031127000 11/20/64 - 11/20/67
031126000 11/20/64 - 11/20/67
025065000 11/20/67 - 11/20/70
025067000 il/20/67 - 11/20/70
025066000 11/20/67 - 11/20/70
027068000 11/20/70 - 11/20/73
The claims and rights assigned hereunder include, without
limitation, all claims asserted by Settling Defendants under the
above policies in this action and all insurance coverage claims for
any and all losses related in any way to the Carlstadt Site, and
the right to proceeds under the above policies.
3. Settling Defendant Inmar also agrees to and hereby does
assign to Settling Generators/Transporters, individually and
collectively, any and all claims and rights of action, including
the right to insurance proceeds, it has now or may have against
Hartford under primary and excess insurance policies issued to
Scientific Chemical Processing Co., Inc. by Hartford during the
period September 27, 1971 through February 7, 1975 and accruing to
Inmar, whether as an additional insured property owner, as a named
or intended beneficiary or on any other basis, for any and all
losses related to the Carlstadt Site. This period includes the
following policies:
Policy No. Policy Period
18C828983 9/27/71 - 9/27/72
18C833730 9/27/72 - 9/27/73
18HU44059 2/5/72 - 2/5/73
18HU440123 2/7/73 - 2/7/74
18C841123 9/27/73 - 9/27/74
18HU44095 2/7/74 - 2/7/75
18C845715 9/27/74 - 9/27/75
4. The claims described in paragraphs 2 and 3 hereof are
referred to as the "Assigned Claims".
5. Each Settling Defendant, for and as to itself alone,
represents that it has not transferred, assigned or conveyed any of
the Assigned Claims in any manner to any party other than Settling
Generators/Transporters Settling Defendants will execute releases
or waivers of coverage as may be requested by Settling
Generators/Transporters, if and only as requested by them. In the
event the assignment or attempted assignment of the Assigned Claims
is for any reason ineffective or would constitute a breach of any
policy term or coverage obligation, Settling Defendants agree they
will, at the request of Settling Generators/Transporters,
participate as necessary as a named party plaintiff at Settling
Generators/Transporters' cost and expense (with the exception of
any cost or expense associated with employees of Transtech, Inmar
or their counsel in connection with the obligations set forth in
paragraph 7 hereof), in any litigation commenced by Settling
Generators/Transporters on the Assigned Claims and assign to the
Settling Generators/Transporters the proceeds of any judgment or
settlement of that litigation.
6. As additional consideration for this settlement, Inmar
shall grant to Settling Generators/Transporters a 15 year option to
purchase the Carlstadt Site for $1.00, subject to Inmar's right to
be reimbursed without interest for any real estate taxes paid on
the Site from 1990 onward. The option purchase shall be recorded by
the Bergen County Clerk and in the form attached as Exhibit B.
COOPERATION
7. Settling Defendants agree to cooperate with Settling
Generators/Transporters fully, in all ways without limitation and
without cost to Settling Generators/Transporters, except for the
costs specifically identified in paragraphs 5 and 7 (iv) hereof,
which shall be borne by Settling Generators/Transporters, and
whether or not specifically referred to in this Agreement, in
connection with Settling Generators/Transporters' prosecution of
the Assigned Claims. Such cooperation shall include but not be
limited to (i) producing documents and files for inspection and
review by Settling Generators/Transporters; (ii) making witnesses
or potential witnesses who may then be employed or controlled by
the Settling Defendants available to Settling
Generators/Transporters for purposes of investigation or discovery;
(iii) making Settling Defendants' counsel available from time to
time as needed to consult with or assist Settling
Generators/Transporters in prosecuting any of the Assigned Claims,
except that with respect to Transtech the procedure to be followed
to secure access to its present or former counsel shall be that
Settling Generators/Transporters will first ask Transtech, in
writing, for the information required from Transtech's counsel and
Transtech will promptly provide to Settling Generators/Transporters
the information requested or will provide the Settling
Generators/Transporters with access to Transtech's counsel; and
(iv) taking any actions that may be required to preserve, hold or
defend the Assigned Claims, including, if necessary, participating
as a named party at Settling Generators/Transporters' cost and
expense (with the exception of any cost or expense associated with
employees of Transtech, Inmar or their counsel in connection with
the obligations of this paragraph) in any action brought on the
Assigned Claims and agreeing to waive any conflict they may have
with respect to counsel retained to prosecute such actions. The
frequency and the extent of requests by the Settling
Generators/Transporters for information from or access to Settling
Defendants' counsel will be of a reasonable nature.
8. Settling Defendant Inmar, for itself and its transferees,
successors in interest and any person or entity which shall have or
take property rights in or with respect to all or any portion of
the Carlstadt Site, covenants and agrees to cooperate promptly and
fully with and to assist Settling Generators/Transporters without
charge at all times from the execution of the Agreement in
implementing any program developed by Settling
Generators/Transporters which they believe will enable them
expeditiously, efficiently and/or at the least possible cost to
comply with any directions, orders or instructions from any
governmental entity or to propose any remedial program to any
governmental entity with respect to the Carlstadt Site. Such
cooperation and assistance shall include but not be limited to:
(i) Providing Settling Generators/Transporters, their
employees, agents and contractors and any representatives or agents
of EPA, or NJDEP or any other governmental entity full and complete
access to the Carlstadt Site for the purpose of performing any
investigation, sampling, cleanup, monitoring, maintenance and
inspection of the Carlstadt Site;
(ii) Making available to Settling Generators/Transporters any
records or employees for the purpose of providing information which
may assist Settling Generators/Transporters in complying with any
directions, orders or instructions from EPA, NJDEP or any other
governmental entity;
(iii) Executing such documents as may assist Settling
Generators/Transporters in complying with any directions, orders or
instructions from EPA, NJDEP or any other governmental entity;
(iv) Prohibiting disturbance of impervious or other cover,
caps or sealants located at the Carlstadt Site as well as any
engineering or institutional controls located on the Carlstadt Site
as Settling Generators/Transporters may direct;
(v) Limiting development, improvement, alteration,
disturbance, excavation, access or use of the Carlstadt Site or any
portion thereof as directed by Settling Generators/Transporters;
(vi) Notifying Settling Generators/Transporters, EPA, NJDEP,
or any other governmental entity concerning development,
disposition, lease, sale, assignment, transfer or changes of use at
the Carlstadt Site or any portion thereof or any interest therein;
(vii) Agreeing to such cleanup levels for the Carlstadt Site
as Settling Generators/Transporters may deem necessary and
appropriate and, if requested by Settling Generators/Transporters,
executing and filing such documents restricting use of the
Carlstadt Site as may be deemed appropriate by Settling
Generators/Transporters;
(viii) Executing and filing at any time subsequent to the
execution of this Agreement one or more easements, notices or other
restrictions of record, as Settling Generators/Transporters may
direct, which shall provide notice of subparagraphs (i) through
(vii) above and, to the extent possible, run with the Carlstadt
Site and legally obligate any person or entity who shall
subsequently take any interest in the Carlstadt Site to comply with
these subparagraphs; and
(ix) Cause all lessees, grantees, transferees and holders of
any interest in all or any portion of the Carlstadt Site to take
the Site and/or their interest in the Carlstadt Site subject to the
limitations and obligations set out in subparagraphs (i) through
(viii) above.
b. Settling Defendant Inmar further agrees that the deed to
the Carlstadt Site and every document which conveys, transfers,
assigns or evidences any property right or interest in the
Carlstadt Site shall contain the following covenants, conditions
and restrictions:
THE 216 PATERSON PLANK ROAD COOPERATING PRP GROUP, THEIR
SUCCESSORS AND ASSIGNS, EMPLOYEES, AGENTS AND CONTRACTORS ARE
HEREBY GRANTED FULL AND COMPLETE ACCESS TO THE PROPERTY FOR THE
PURPOSE OF PERFORMING WORK RELATED TO ANY OBLIGATIONS THEY MAY HAVE
WITH RESPECT TO SAMPLING, CLEANUP, MONITORING AND INSPECTING. THIS
EASEMENT IS HEREBY DEEMED TO RUN WITH THE LAND.
COVENANT NOT TO SUE FROM SETTLING GENERATORS/TRANSPORTERS
AND RELEASE FROM SETTLING DEFENDANTS
9. Except as specifically reserved in this Agreement, Settling
Generators/Transporters agree that, by the execution of this
Agreement they hereby covenant and agree not to sue Settling
Defendants, their respective past, present and future parents,
subsidiaries and affiliates and their respective heirs, successors
and assigns, executors, administrators or personal representatives,
employees, officers, directors, shareholders and agents on any and
all claims, demands, damages, actions or suits at law or in equity,
of whatsoever kind or nature, for or because of any matter or thing
done, omitted or suffered to be done arising out of the Carlstadt
Site Contamination, including, but not limited to, the claims and
allegations made in the Litigation, or arising out of claims that
were or could have been asserted, whether presently known or
unknown, contingent or real, including, but not limited to, claims
for costs, expenses and attorneys' fees. This covenant shall not
apply to any future parent, subsidiary or affiliate of Transtech or
Inmar to the extent that Settling Generators/Transporters' claims
against such future parent, subsidiary or affiliate are based on
its actions independent of its relationship as a parent, subsidiary
or affiliate of Transtech or Inmar. Settling
Generators/Transporters further acknowledge that if they may
hereafter discover facts different from or in addition to those
which they now know or believe to be true with respect to the above
claims, each agrees that, in such event and absent any fraudulent
concealment of a material fact or material misrepresentation by
Settling Defendants, in either case which materially and adversely
affects the Settling Generators/Transporters, this Agreement shall
nevertheless be and remain effective in all respects,
notwithstanding such different or additional facts, or the
discovery thereof. The fraudulent concealment of a material fact or
material misrepresentation by one Settling Defendant shall not be
grounds to render this Agreement invalid or ineffective as to any
other Settling Defendant.
10. By this Agreement and the foregoing covenant not to sue,
Settling Defendants and Settling Generators/Transporters intend to
preserve, retain and continue all rights and claims under the
Hartford primary and excess insurance policies identified in
paragraph 3 and the Lloyd's/London Market excess insurance policies
identified in paragraph 2. No rights under those policies are
waived or released by any provision of this Agreement.
11. It is not the intent of this Agreement to release or
extinguish the claims against Settling Defendants for losses
arising from the Carlstadt Site, but only to limit recovery on such
claims to recovery under the insurance policies assigned to
Settling Generators/Transporters. The Settling
Generators/Transporters shall seek recovery for their claims as to
which they have covenanted not to sue the Settling Defendants
solely and exclusively from the Lloyds London Market excess
insurance policies identified in paragraph 2 and the Hartford
primary and excess insurance policies identified in paragraph 3,
and not from the Settling Defendants or any of them.
12. Settling Defendants agree that, by the execution of this
Agreement, they hereby release and forever discharge Settling
Generators/Transporters from all claims, demands, damages, actions
or suits at law or in equity, of whatsoever kind or nature for or
because of any matter or thing done, omitted or suffered to be done
arising out of the Carlstadt Site Contamination, including, but not
limited to, the claims and allegations made in the Litigation, or
arising out of claims that were or could have been asserted,
whether presently known or unknown, contingent or real, including,
but not limited to, claims for costs, expenses, and attorneys'
fees; except that Settling Defendants do not release but expressly
reserve against Settling Generators/Transporters any claims, rights
or causes of action that exist or may in the future exist relating
in any way to
(i) any liabilities Settling Generators/Transporters
may have at sites other than the Carlstadt Site,
including any liabilities that may relate in whole
or in part to any contamination resulting from any
delivery, transfer, shipment or transshipment of
hazardous materials, pollutants or waste from the
Carlstadt Site to any other location,
notwithstanding that such materials, waste or
pollutants may have been related to activities at
the Carlstadt Site; and
(ii) any bodily injury, property damage or personal
injuries suffered by any third parties relating to
or arising out of the Carlstadt Site Contamination;
and
(iii) natural resource damages relating to or arising out
of the Carlstadt Site Contamination.
The Settling Defendants further acknowledge that if they or any of
them may hereafter discover facts different from or in addition to
those which they now know or believe to be true with respect to the
released claims, each agrees that, in such event and absent any
fraudulent concealment of a material fact or material
misrepresentation by Settling Generators/Transporters which
materially and adversely affects Settling Defendants, this
Agreement shall nevertheless be and remain effective in all
respects, notwithstanding such different or additional facts, or
the discovery thereof. The fraudulent concealment of a material
fact or material misrepresentation by one Settling
Generator/Transporter shall not be grounds to render this Agreement
invalid or ineffective as to any other Settling
Generator/Transporter.
13. For as long as the Assigned Claims remain unresolved,
Settling Defendants shall not assert, in any manner, any and all
rights, claims or causes of action they have or may have concerning
the Carlstadt Site under excess insurance policies issued from
November 1964 through October 1966 and from December 1973 through
September 1981 (collectively the "Non-Assigned Lloyds Policies"),
and agree that they shall not make any claims for coverage for
liabilities at or arising from the Carlstadt Site under such
policies. Upon request by Settling Generators/Transporters,
Settling Defendants will provide a waiver and release of all rights
and claims for coverage under the Non-Assigned Lloyds Policies
arising from the Carlstadt Site but only so long as the insurers
under such policies acknowledge, or the Settling
Generators/Transporters provide other assurances satisfactory to
Settling Defendants, that the payment of insurance proceeds on the
Assigned Claims does not reduce the limits of coverage otherwise
available to Settling Defendants under the Non-Assigned Lloyds
Policies. Commencing on a date five (5) years from the date of
Settling Defendants' execution of this Agreement, but only in the
event the Settling Generators/Transporters have not previously
requested Settling Defendants to release, waive or discharge their
rights and claims for coverage under the Non-Assigned Lloyds
Policies, Settling Defendants may bring claims, actions or suits
relating to the Carlstadt Site under such policies, provided that
such claims, actions or suits shall be be limited to Settling
Defendants' liabilities with respect to claims by EPA to recover
oversight costs related to the Carlstadt Site.
14. Settling Generators/Transporters do not release but
expressly reserve against Settling Defendants any claims, rights or
causes of action that exist or may in the future exist relating in
any way to:
(i) any liabilities Settling Defendants may have at
sites other than the Carlstadt Site, including any
liabilities that may relate in whole or in part to
any contamination resulting from any delivery,
transfer, shipment or transshipment of hazardous
materials, pollutants or waste from the Carlstadt
Site to any other location, notwithstanding that
such materials, waste or pollutants may have been
related to activities at the Carlstadt Site; and
(ii) any bodily injury, property damage or personal
injuries suffered by any third parties relating to
or arising out of the Carlstadt Site Contamination;
and
(iii) natural resource damage relating to or arising out
of the Carlstadt Site Contamination; and
(iv) fraudulent concealment of a material fact or
material misrepresentation of any kind by any
Settling Defendant in connection with any insurance
policies issued to the Settling Defendants or any
of them which denies to the Settling Defendants (or
the Settling Generators/Transporters as a result of
the assignment set out in paragraphs 2 and 3 above)
recovery under excess insurance policies issued
between November 1966 and November 1973, provided
that the fraudulent concealment of a material fact
or a material misrepresentation by one Settling
Defendant shall not affect the rights of the other
Settling Defendants hereunder; and
(v) Settling Defendants' material breach of any
obligation on their part under this Agreement;
provided that a material breach by one Settling
Defendant shall not be considered a breach of any
obligation hereunder by any other Settling
Defendant.
EXPRESS RESERVATION OF CLAIMS SUBJECT TO
REPRESENTATION BY MAHAN
15. Settling Generators/Transporters' covenant not to sue on
their claims against Settling Defendant Mahan is subject to and
conditioned upon Settling Defendant Mahan's representation that, as
of the date of execution of this Agreement, he lacks the ability to
pay any substantial portion of the Response Costs thus far incurred
by Settling Generators/Transporters. If this representation should
prove to be false, Settling Generators/Transporters release shall
be deemed void ab initio, Settling Generators/Transporters shall
have the right to re-open this action against him, and all other
terms of this Agreement shall be null and void as to Settling
Defendant Mahan. In such event, Settling Generators/Transporters'
release of Transtech shall nevertheless remain valid and in full
force and effect.
PRESERVATION OF OTHER CLAIMS
16. Settling Generators/Transporters expressly preserve all of
their rights, claims and/or causes of action, whether or not
related to the Carlstadt Site Contamination, against any person or
entity, whether or not a party to the Litigation, other than
against the Settling Defendants, and all such rights, claims and/or
causes of action shall be preserved against all defenses arising
out of participation in this Agreement or the commencement,
dismissal or termination of this Litigation, in whole or in part,
based on the entire controversy doctrine or any similar doctrine of
mandatory joinder of parties or claims, statutes of limitation,
laches, estoppel or waiver.
17. Settling Defendants expressly preserve all of their
rights, claims and/or causes of action relating to the Carlstadt
Site Contamination and any and all other claims, whether or not
brought in the Litigation, against any person or entity, whether or
not a party to the Litigation (including without limitation
Lloyd's/London Market and First State except to the extent already
assigned, waived or released under this Agreement), other than
against Settling Generators/Transporters, and all such rights,
claims and/or causes of action shall be preserved against all
defenses arising out of participation in this Agreement and/or the
dismissal or termination of the Litigation, in whole or in part,
including but not limited to defenses based on the entire
controversy doctrine or any similar doctrine of mandatory joinder
of parties or causes of action, statute of limitations, laches,
estoppel or waiver.
18. Settling Generators/Transporters expressly preserve all of
their rights, claims and/or causes of action which either do not
relate to Carlstadt Site Contamination or are not expressly waived
or released in this Agreement against Settling Defendants and all
such rights, claims and/or causes of action shall be preserved
against all defenses arising out of participation in this Agreement
or the dismissal or termination of the Litigation, in whole or in
part, based on the entire controversy doctrine or any similar
doctrine of mandatory joinder of parties or causes of action,
statute of limitations, laches, estoppel or waiver.
19. Settling Defendants expressly preserve all of their
rights, claims and/or causes of action which do not relate to the
Carlstadt Site Contamination against any person or entity, whether
or not a party to the Litigation, and all such rights, claims,
and/or causes of action shall be preserved against all defenses
arising out of participation in this Agreement or the dismissal or
termination of the Litigation, in whole or in part, based on the
entire controversy doctrine or any similar doctrine of mandatory
joinder of parties or causes of action, statute of limitations,
laches, estoppel or waiver.
20. Settling Generators/Transporters and Settling Defendants
have entered into this Agreement with the understanding and
expectation that the Litigation will be administratively terminated
or stayed by the Court subject to re-opening by any party-after
December 31, 1995.
NO INDEMNIFICATION RIGHTS OR CONTRIBUTION PROTECTION
21. Nothing in this Agreement grants or confers any rights to
indemnification or protection from claims by other parties.
PRESERVATION OF ALL CLAIMS AND RIGHTS AGAINST THIRD PARTIES
22. Except as specifically provided herein, this Agreement
does not restrict, waive, constrain, diminish or destroy any
rights, claims or causes of action that Settling
Generators/Transporters or Settling Defendants or any of them had,
have, or may have against each other or any persons or entities,
whether parties in the Litigation or not, and all such rights,
claims or causes of action shall be preserved against all defenses
based on the entire controversy doctrine, laches, estoppel and
waiver.
23. Settling Generators/Transporters represent and agree that,
in the event new members shall join the 216 Paterson Plank Road
Cooperating PRP Group after the date of Settling Defendants'
execution of this Agreement, they will periodically identify such
new members to Settling Defendants and make known to each such new
member Settling Defendants' willingness to enter into mutual
releases and/or covenants-not-to sue with respect to Carlstadt Site
liabilities and provide the address and telephone number of each
Settling Defendant and its counsel.
NO ADMISSION OF LIABILITY
24. The execution of this Agreement, the assignment of any
rights, and/or the payment of any funds hereunder shall not
constitute, and shall not be construed as, an admission or
acknowledgment of liability, fault or any intentional conduct in
relation to the Carlstadt Site Contamination, nor shall any such
action waive or affect any rights, except as expressly assigned or
relinquished herein, any party may have under policies of insurance
that may provide coverage for liability arising from the presence,
release or threatened release of any hazardous substances at or
from the Carlstadt Site.
SETTLING DEFENDANTS' LIABILITY SHARE
25. Pursuant to an order of the Court, the proportionate share
of the Settling Defendants' liability has been determined by a
special master in a report and recommendation to the Court. The
special master has determined Settling Defendants' allocated share
of liability for the Carlstadt Site Contamination to be 60%. For
purposes of this Agreement, the parties have agreed to be bound by
the determination of the special master for purposes of
establishing the proportionate share of Settling Defendants'
liabilities for past, present and future remediation of the
Carlstadt Site Contamination, and for purposes of determining the
extent and amount of Settling Defendants' liabilities at the Site
covered by the insurance policies issued to Settling Defendants,
including those described in paragraphs 2 and 3.
ENTIRE AGREEMENT
26. This Agreement constitutes the entire understanding among
the parties hereto respecting the subject matter hereof and
supersedes and replaces in all respects all prior agreements,
negotiations or understandings, whether formal or informal, oral or
in writing, in court or out of court, among the parties or between
any of them. This Agreement may only be amended or terminated by a
writing signed by all the parties hereto. The unnumbered paragraphs
found on pages 1, 2, 3 and 4 of this Agreement which begin with the
term "WHEREAS" are part of this Agreement.
27. This Agreement may be executed in counterpart by each of
the Settling Generators/Transporters individually, or their
representatives, and each signatory hereto represents that it is
authorized to execute this Agreement on behalf of the parties
indicated below.
GOVERNING LAW
28. This Agreement shall be governed by the law of New Jersey
without regard to New Jersey conflict of law rules.
APPROVAL BY THE COURT
29. Settling Generators/Transporters and Settling Defendants
shall jointly submit an application to the Court, on notice to
Settling Defendants' insurance carriers and all other parties to
the Litigation, to have this settlement approved and entered on the
docket. In the event that the Court shall not approve this
settlement, Settling Generators/Transporters and Settling
Defendants shall be relieved of all obligations under this
Agreement.
So Ordered:
Dated:
COHEN, SHAPIRO, POLISHER, INMAR ASSOCIATES, INC.
SHIEKMAN AND COHEN
By:/s/ Vincent E. Gentile, Esq. By: /s/ Marvin H. Mahan
Vincent E. Gentile, Esq. Marvin H. Mahan
On behalf of Settling Title: President
Generators/Transporters
listed in Exhibit C
TRANSTECH INDUSTRIES, INC. MARVIN H. MAHAN
By: /s/ Robert V. Silva By:/s/ Marvin H. Mahan
Robert V. Silva
Title: President and Chief
Executive Officer
EXHIBIT A
PRP NAME
___________________________________
3M Company
Air Products and Chemicals, Inc.
ALCOA Aluminum Co. Of America
Allied Corporation/Baron Blakslee
American Can Company
American Cyanamid/Lederle/Shul
American Flange & Manuf. Co.
American Hoechst/Celanese
American Inks & Coatings
American Standard, Inc.
Armitage, JL/Indus. Coat.
Armstrong World Industries
Arrow Group/Chromalloy/Sequa
Ashland Chemical Company
AT&T/Western Electric
BASF Wyandotte
Bee Chemical (Morton Thiokol)
Benjamin Moore & Company
Ber Mar Manufacturing Co.
Borden, Inc./Fabric Leather
Browning Ferris (BFI)/CECOS/Newco
CBS Inc./CBS Toys
Cellu-Craft Inc.
*Chemcoat Inc.
Chemical Dynamics Corporation
Chemical Pollution Control Inc.
Chenray Coatings Company
Chevron/Kewanee/Harshaw
Ciba-Geigy Corporation
Cities Service (OXY USA)
Conestoga Fuels, Inc.
Congoleum Corp.
Continental Can Company, Inc.
Converters Ink Co. (Beatrice)
*Decorative Industries, Inc.
Diamond Shamrock/Occidental
Dri Print Foils (Beatrice)
Ell Bee Chemical
Engelhard Corporation
Environmental Waste Removal
Esselte Pendaflex (Oxford)
E. I. duPont de Nemours & Co.
E. R. Squibb
EXXON/Bayway/Bayonne
Faberge
Fairchild Semiconductors
PRP NAME
___________________________________
Fitchburg Coated Products (Litton)
GAF Corporation
Ganes Chemical, Inc.
General Electric/RCA
General Foods (Maxwell)
General Motors Corporation
Grumman Corporation
GTE Electronics Corporation
Hexcel Corporation
Hoffmann-La Roche Inc.
IBM Corporation
Inland Steel Container
Inmont Corporation
*Interstab (Div. Of AKZO Chemie)
J. Josephson, Inc.
J. M. Huber Corporation
J. T. Baker Chemical Company
Kirker Chemical Co.
LE Carpenter/Day International
M & T Chemicals, Inc. (Atochem)
Mack Trucks, Inc.
*Magid Corporation
Mallory Battery/Duracell/Dart
Marisol, Inc.
Matlack, Inc.
Merck & Company, Inc.
Mobay Corp. Harmon Colors
Mobil Oil Corporation
Monroe Chemical Co. (Kalama)
Monsanto Polymer Products Co.
Nepera, Inc.
New England Laminates (NELCO)
*Novick Chemical Company, Inc.
Olin Corporation/Phillip Hunt
Owens-Illinois
Pacquet Oneida Corporation
PAXAR/Packaging Systems/Fasco
Penetone (Amerace)
Pennwalt Corporation (Atochem)
*Perk Chemical Co., Inc
Permacel (Johnson & Johnson)
Pfizer Inc
Pyrolac Corporation Q
Quality Chemicals, Inc.
Randolph Products Co.
Recycling Indus. (Chem Waste)
PRP NAME
___________________________________
Reliance Universal (AKZO Coatings)
Revlon
Reynolds Metals Company
Rheem Manufacturing Company
Ridge Printing Co.
Rohm & Haas Company
Schenectady Chemicals, Inc.
Schering Corporation
*SCM Corporation
Seton Co.
Sherwin-Williams Company
Simon Wrecking Company
SmithKline Beckman Corporation
Southland Corporation
Stauffer/ICI Americas
*Stimpson Company
Stork-Bowen Engineering
*Syntex Beauty Care, Inc.
Technical Coatings/Benj. Moore
Tenax Finishing Products Co.
Tenneco Polymers, Inc.
Troy Chemical Corporation
Union Carbide/Gas Products
Uniroyal Chemical Company, Inc.
Upjohn Company
U.S. Pipe & Foundry Company
U.S. Polymeric Company/Armco
Westinghouse Electric Corp.
Whittaker Corporation
*WR Grace
XCEL Corp. (Georgia-Pacific)
EXHIBIT B
OPTION TO PURCHASE
This option made this, 23rd day of March, 1995, by and between
Inmar Associates, Inc. ("Optionor and/or Grantor"), and Cohen,
Shapiro, Polisher, Shiekman and Cohen, as agent and representative
for and on behalf of the members of the 216 Paterson Plank Road
Cooperating PRP Group, identified individually on the list attached
hereto as Exhibit B ("Optionee and/or "Grantee"),
W I T N E S S E T H
WHEREAS, Optionor is the owner of certain Property identified
and described on attached Schedule A ("Property"); and
WHEREAS, Optionor and Optionee have entered into an agreement
to settle and resolve certain disputes existing between them
concerning responsibility for the environmental conditions on the
Property, consideration for which Settlement Agreement Optionor has
agreed to grant to Optionee this Option;
NOW, THEREFORE, Optionor grants to Optionee the right to
purchase the Property in accordance with the terms and conditions
set forth herein.
1. Property. The Property included within this Option is
identified and described on attached Schedule A. It is commonly
known as 216 Paterson Plank Road, Carlstadt, New Jersey and
designated as Lots 1 through 5, Block 124 on the tax map for the
Borough of Carlstadt.
2. Grant of Ontion. In consideration of one dollar ($1.00)
plus the agreement of the Optionee to settle its disputes with the
Optionor concerning the environmental conditions of the Property,
as more particularly set forth in a Settlement Agreement between
the Optionor and Optionee dated May 1, 1995, Optionor grants to
Optionee the exclusive option to purchase the Property identified
and described on attached Schedule A.
3. Expiration Date. This Option shall expire in fifteen (15)
years from the date of its creation.
4. Notice of Exercise. Optionee may exercise this Option by
giving written notice thereof to Optionor c/o Schenck, Price, Smith
& King, 10 Washington Street, CN 905, Morristown, New Jersey 07960,
(201) 539-1000, by registered or certified mail, prior to the
expiration date.
5. Purchase Price. The total purchase price for the Property
shall be one dollar ($1.00), which Optionee shall pay to Optionor
at the time title to the Property closes. In addition, in the event
Optionor has made any payments for real estate taxes on the
property from 1990 to the date the Option is exercised, Optionee
shall reimburse Optionor for any such payments as a condition of
exercising the Option.
6. Failure to Exercise Option. In the event Optionee does not
exercise this Option on or before the expiration date, then neither
party shall have any further rights or claims against the other
with respect to purchase and/or sale of the Property.
7. Exercise of Option. In the event Optionee exercises this
Option, Optionor and Optionee shall perform their respective
obligations as set forth in the annexed form of agreement as Seller
and Purchaser respectively.
8. Assignment. This Option and all rights hereunder shall be
freely assignable without the consent of the Optionor. If Optionee
shall assign this Option, all acts to be performed by him with
respect to the purchase of the Property, including the execution
and delivery of the notice to exercise the Option and payment of
the purchase price for the Property, may be performed by any
Assignee, whether the assignment is made before or after the
exercise of this Option.
IN WlTNESS WHEREOF, Optionor has signed and acknowledged this
Option Agreement intending to be legally bound by all of its terms
and conditions.
INMAR ASSOCIATES, INC.
By:/s/ Marvin H. Mahan
Marvin H. Mahan, President
ATTEST:
/s/ Marie Boring
Marie Boring, Secretary
CORPORATE ACKNOWLEDGMENT
COUNTY OF UNION )
) ss:
STATE OF NEW JERSEY )
I certify that on March 23, 1995, Marvin H. Mahan personally
came before me and this person acknowledged under oath, to my
satisfaction, that:
(a) this person is the President of Optionor, the Corporation
named in this document;
(b) this person is the attending witness to the signing of
this document by the proper corporate officer who is Marvin H.
Mahan, President of the corporation;
(c) this document was signed and delivered by the corporation
as its voluntary act duly authorized by a proper resolution of its
Board of Directors;
(d) this person knows the proper seal of the corporation
which was affixed to this document; and
(e) this person signed this proof to attest to the truth of
these facts.
Subscribed and sworn to before me
this 23 day of March, 1995.
/s/ Michael K. Mullen, Esq.
MICHAEL K. MULLEN, ESQ.
AN ATTORNEY-AT-LAW OF THE STATE OF NEW JERSEY
Prepared by:
/s/ Vincent E. Gentile, Esq.
VINCENT E. GENTILE, ESQ.
EXHIBIT C
3M Company
Air Products and Chemicals, Inc.
Allied Corporation/Baron Blakslee
American Can Company
American Cyanamid/Lederle/Shul
American Hoechst/Celanese
Armitage, JL/Indus. Coat.
Armstrong World Industries
Ashland Chemical Company
AT&T/Western Electric
BASF Wyandotte
Benjamin Moore & Company
Ber Mar Manufacturing Co.
Browning Ferris (BFI)/CECOS/Newco
Chemical Pollution Control Inc.
Ciba-Geigy Corporation
Continental Can Company, Inc.
Diamond Shamrock/Occidental
Ell Bee Chemical
E.I. duPont de Nemours & Co.
E.R. Squibb
GAF Corporation
Ganes Chemical, Inc.
General Electric/RCA
General Motors Corporation
Grumman Corporation
Hoffman-LaRoche Inc.
Inmont Corporation
Mack Trucks, Inc.
Merck & Company, Inc.
Mobay Corp. - Harmon Colors
Mobil Oil Corporation
Monroe Chemical Co. (Kalama)
Nepera, Inc.
New England Laminates (NELCO)
Pfizer Inc
Reliance Universal (AKZO Coatings)
Revlon
Reynolds Metals Company
Rohm & Haas Company
Sherwin-Williams Company
Technical Coatings/Benjamin Moore
Tenax Finishing Products Co.
Union Carbide/Gas Products
U.S. Polymeric Company/Armco
Whittaker Corporation