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Exhibit 10.1
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State of New Jersey
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Christine Todd Whitman Department of Environmental Protection Robert C. Shinn, Jr.
Governor Commissioner
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IN THE MATTER OF : REMEDIATION
THE BLOOMFIELD SITE : AGREEMENT
ESKIMO PIE CORPORATION
ISRA Case # 2000206
This Remediation Agreement is issued and entered into pursuant to the
authority vested in the Commissioner of the New Jersey Department of
Environmental Protection, (hereinafter the "NJDEP") by N.J.S.A. 13:1D-1 et.
seq., and the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et. seq., and
duly delegated to the Assistant Director within the Division of Responsible
Party Site Remediation pursuant to N.J.S.A. 13:1B-4.
FINDINGS
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1. The property that is the subject of this Remediation Agreement is
operated and owned by Eskimo Pie Corporation. It is located at 118 John F.
Kennedy Drive and is designated as Block 130, Lots 1 & 5 on the tax maps of
the City of Bloomfield, Essex County, New Jersey (hereinafter the
"Bloomfield industrial establishment"). The Standard Industrial
Classification ("SIC") number which best describes the operations at the
Bloomfield industrial establishment is 2671.
2. On June 6, 2000, Eskimo Pie Corporation submitted to NJDEP an
application for a Remediation Agreement pursuant to N.J.A.C. 7:26B-4. 1.
This Remediation Agreement application is incorporated herein by reference
and includes the following information:
A. Transaction
Seller: Eskimo Pie Corporation, a Virginia corporation
Buyer: CoolBrands International, Inc., a Canada corporation
Description: Eskimo Pie Corporation and CoolBrands International,
Inc. will merge pursuant to a Merger Agreement between Eskimo Pie
Corporation and CoolBrands International, Inc. Eskimo Pie Corporation will
be the surviving entity after the merger.
New Jersey is an Equal Opportunity Employer
Recycled Paper
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B. Person(s) executing this Remediation Agreement and responsible for
conducting the remediation of the Bloomfield industrial establishment.
Lead Responsible Person:
Name: Eskimo Pie Corporation
Business: Corporation
Address: 901 Morefield Park Drive
Richmond, Virginia 23236
Telephone No. (804) 560-8400
3. NJDEP and Eskimo Pie Corporation expressly agree that the terms and
conditions of this Remediation Agreement shall apply to the industrial
establishment listed in Paragraph 1 above. Furthermore, NJDEP and the Eskimo Pie
Corporation agree to administer and complete all applicable ISRA program
requirements, including the remediation funding source requirements and any
other remedial measures undertaken pursuant to this Remediation Agreement and
ISRA, for the industrial establishment.
4. The transaction described in Paragraph 2.A above is the transfer of
ownership or operations of an industrial establishment as defined by ISRA. NJDEP
and Eskimo Pie Corporation expressly agree that the transaction described in
Paragraph 2.A above is subject to ISRA. Eskimo Pie Corporation has requested
that NJDEP prepare a Remediation Agreement which, when effective, will allow the
transaction described in Paragraph 2.A above to be consummated prior to the
completion of all administrative and remediation requirements pursuant to ISRA.
5. By entering into this Remediation Agreement, Eskimo Pie Corporation neither
admits to any fact, fault or liability under any statute or regulation
concerning the condition of the Site nor waives any rights or defenses with
regard to the site except as specifically provided in this Remediation
Agreement.
AGREEMENT
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I. Remediation
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1. Eskimo Pie Corporation agrees to remediate the Bloomfield industrial
establishment and to submit the following documents as established below:
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A. Within one hundred and eighty (180) calendar days after the NJDEP's
receipt of the General Information Notice (GIN) or such additional time as
authorized by NJDEP, Eskimo Pie Corporation shall submit a preliminary
assessment report, site investigation report, and remedial investigation
workplan, as applicable, prepared in accordance with N.J.A.C. 7:26E or
Eskimo Pie Corporation shall submit a Negative Declaration for the
Bloomfield industrial establishment.
B. Within three hundred (300) calendar days after the NJDEP's receipt of
the General Information Notice (GIN) or within one hundred twenty (120)
calendar days from receipt of NJDEP's written approval of the Remedial
Investigation Workplan or longer as authorized by NJDEP, Eskimo Pie
Corporation shall submit a Remedial Investigation Report in accordance with
N.J.A.C. 7:26E or Eskimo Pie Corporation shall submit a Negative
Declaration for the Bloomfield industrial establishment.
C. Within four hundred and twenty (420) calendar days after the NJDEP's
receipt of the General Information Notice (GIN) or within one hundred and
twenty (120) calendar days from receipt of NJDEP's written approval of the
Remedial Investigation Report or longer as authorized by NJDEP, Eskimo Pie
Corporation shall submit a Remedial Action Workplan as applicable, prepared
in accordance with N.J.A.C. 7:26E or Eskimo Pie Corporation shall submit a
negative declaration for the Bloomfield industrial establishment.
D. The NJDEP will review all documents in accordance with N.J.A.C. 7:26B
and N.J.A.C. 7:26E.
2. If NJDEP determines any submittal made under this section is inadequate or
incomplete, the NJDEP shall provide Eskimo Pie Corporation with written
notification of each deficiency, and Eskimo Pie Corporation shall revise and
resubmit the required information within thirty (30) calendar days, or longer as
authorized by NJDEP, from receipt of such notification.
3. If the NJDEP determines that no further action is required at the
Bloomfield industrial establishment, Eskimo Pie Corporation shall submit a
negative declaration, in accordance with N.J.A.C. 7:26B-6.7, within thirty (30)
calendar days or longer as authorized by NJDEP from receipt of the NJDEP's
request for the submission of the negative declaration.
4. Nothing in this Remediation Agreement shall be construed to limit, restrict
or prohibit any person(s) responsible for conducting the remediation of the
Bloomfield industrial establishment from implementing any applicable ISRA
compliance options in accordance with N.J.A.C. 7:26B-5 to satisfy the
requirements of ISRA.
5. If at any time that this Remediation Agreement is in effect the NJDEP
determines that the requirements of N.J.A.C. 7:26E are not being achieved or
that additional remediation is required to protect the public health and safety
or the environment, Eskimo Pie Corporation shall conduct such additional
remediation as the NJDEP directs.
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6. The NJDEP will consider a request for an extension of time to perform any
requirement under this Remediation Agreement, provided that any extension
request is submitted to the NJDEP fourteen (14) calendar days prior to any
applicable deadline to which the extension request refers.
II. Remediation Funding Source
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7. Eskimo Pie Corporation shall establish and maintain a remediation funding
source in a form pursuant to N.J.A.C. 7:26C-7 in the amount of $348,350.00. If
Eskimo Pie Corporation chooses and the Department approves in writing an
innovative remedial action technology, unrestricted use or limited restricted
use remedial action for all or part of the remedial action, Eskimo Pie
Corporation is not required to maintain a remediation funding source for the
cost of implementing the innovative remedial action technology, unrestricted use
or limited restricted use remedial action.
8. Upon submission of the remediation funding source and annually thereafter,
Eskimo Pie Corporation shall submit a remediation funding source surcharge
payment in an amount equal to one percent of the required amount of the
remediation funding source. Eskimo Pie Corporation shall submit to the NJDEP a
cashier's or certified check payable to the "New Jersey Economic Development
Authority" for the full amount of the remediation funding source surcharge. No
surcharge is due on the amount of the remediation funding source established as
self-guarantee or the amount of the remediation funding source that is
established by financial assistance or a grant from the Hazardous Discharge Site
Remediation Fund.
9. Whenever the remediation cost increases, Eskimo Pie Corporation shall cause
the amount of the remediation funding source to be increased to an amount at
least equal to the new estimate within thirty (30) calendar days.
10. Whenever the remediation cost decreases, Eskimo Pie Corporation may file a
written request to NJDEP to decrease the amount in the remediation funding
source. If NJDEP approves, Eskimo Pie Corporation may decrease the remediation
funding source upon receipt of NJDEP's written approval to the person who
established the remediation funding source and to the person or institution
providing the remediation funding source.
11. NJDEP shall return the remediation funding source established upon Eskimo
Pie Corporation submission of a substitute remediation funding source or upon
NJDEP's issuance of a no further action letter for the Bloomfield industrial
establishment.
12. In the event that NJDEP determines that Eskimo Pie Corporation has failed
to perform any of its obligations under this Remediation Agreement or ISRA,
NJDEP shall notify the Eskimo Pie Corporation in writing of the obligation(s)
with which it has not complied and Eskimo Pie Corporation shall revise and
resubmit the required information within a reasonable period of time not to
exceed thirty (30) calendar days or longer as authorized by NJDEP from receipt
of such notification. If Eskimo Pie Corporation fails to revise and resubmit the
required information within the schedule established above, NJDEP may perform
the remediation in place of Eskimo
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Pie Corporation making disbursements from the remediation funding source and may
pursue any additional rights and remedies in accordance with N.J.S.A. 58:10B-
3(g). Nothing in this paragraph shall prevent NJDEP from seeking civil or civil
administrative penalties, costs and damages or any other legal or equitable
relief against Eskimo Pie Corporation
III. Project Coordination
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13. Within seven (7) calendar days after the effective date of this Remediation
Agreement, Eskimo Pie Corporation shall submit to the NJDEP the name, title,
address and telephone number of the individual who shall be Eskimo Pie
Corporation's technical contact for the NJDEP for all matters concerning this
Remediation Agreement and Eskimo Pie Corporation shall designate an agent for
the purpose of service for all matters concerning this Remediation Agreement and
shall provide the NJDEP with the agent's name and address.
14. Unless otherwise directed by NJDEP, any submission to be made to NJDEP in
accordance with this Remediation Agreement and ISRA shall be directed to:
Division of Responsible Party Site Remediation
Industrial Site Evaluation Element
401 East State Street
P.O. Box 432
Trenton, NJ 08625-0028
IV. Oversight Cost Reimbursement
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15. All submissions required pursuant to this Remediation Agreement shall be
accompanied by all appropriate fees pursuant to N.J.A.C. 7:26B-8.
16. Within thirty (30) calendar days after receipt from the NJDEP of a written
summary, conforming to N.J.A.C. 7:26B-8.2, of the NJDEP's oversight costs,
including all accrued interest incurred pursuant to the paragraph below,
determined pursuant to N.J.A.C. 7:26B- 8, Eskimo Pie Corporation shall submit to
the NJDEP a cashier's or certified check payable to the "Treasurer, State of New
Jersey" and submitted with DEP Form 062A in accordance with N.J.A.C. 7:26B8.4,
for the full amount of the NJDEP's oversight costs. Nothing contained in the
paragraph shall be construed to limit or restrict any person's ability to
contest any oversight costs calculated pursuant to N.J.A.C. 7:26B-8.2(d) in
accordance with the oversight cost review procedures at N.J.A.C. 7:26B-8.3.
17. Interest shall accrue on the unpaid balance of oversight costs, beginning
at the end of the thirty (30) calendar day period established in the preceding
paragraph, at the rate established by Rule 4:42 of the current edition of the
Rules Governing the Courts of the State of New Jersey.
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V. Force Majeure
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18. If any event specified in the following paragraph occurs which Eskimo Pie
Corporation believes or should believe will or may cause delay in the compliance
or cause non-compliance with any provision of this Remediation Agreement, Eskimo
Pie Corporation shall notify the NJDEP in writing within seven (7) calendar days
of the start of delay or knowledge of the anticipated delay, as appropriate,
referencing this paragraph and describing the anticipated length of the delay,
the precise cause or causes of the delay, any measures taken or to be taken to
minimize the delay, and the time required to take any such measures to minimize
the delay. Eskimo Pie Corporation shall take all necessary action to prevent or
minimize any such delay.
19. The NJDEP will extend in writing the time for compliance for a period no
longer than the delay resulting from such circumstances as determined by the
NJDEP only if:
(a) Eskimo Pie Corporation has complied with the notice requirements of
the preceding paragraph;
(b) Any delay or anticipated delay has been or will be caused by fire,
flood, riot, strike or other circumstances beyond the control of Eskimo Pie
Corporation; and
(c) Eskimo Pie Corporation has taken all necessary action to prevent or
minimize any such delay.
20. The burden of proving that any delay is caused by circumstances beyond the
control of Eskimo Pie Corporation and the length of any such delay attributable
to those circumstances shall rest with Eskimo Pie Corporation
21. "Force Majeure" shall not include the following:
(a) Delay in an interim requirement with respect to the attainment of
subsequent requirements;
(b) Increases in the cost or expenses incurred by Eskimo Pie Corporation in
fulfilling the requirements of this Remediation Agreement;
(c) Contractor's breach, unless Eskimo Pie Corporation demonstrates that
such breach falls within paragraph 19 above; and
(d) Failure to obtain access required to implement this Remediation
Agreement, unless denied by a court of competent jurisdiction.
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VI. Reservation of Rights
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22. By entering into this Remediation Agreement, the NJDEP does not waive its
right to seek, assess or collect civil or civil administrative penalties or any
other legal or equitable relief against Eskimo Pie Corporation for past, present
and future violations by Eskimo Pie Corporation of any New Jersey environmental
statutes or regulations.
23. The NJDEP reserves the right to require Eskimo Pie Corporation to take or
arrange for the taking of any and all additional measures if the NJDEP
determines that such actions are necessary to protect human health or the
environment.
24. Eskimo Pie Corporation admits that it has agreed to comply with the terms
of this Remediation Agreement. Neither the entry into this Remediation Agreement
nor the conduct of Eskimo Pie Corporation hereunder, shall be construed as any
admission of fact, fault or liability by the Eskimo Pie Corporation under any
applicable laws or regulations.
25. Except as otherwise set forth herein, by the execution of this Remediation
Agreement, the NJDEP does not release any person from any liabilities or
obligations such person may have pursuant to ISRA and the ISRA regulations, or
any other applicable authority, nor does the NJDEP waive any of its rights or
remedies pursuant thereto.
VII. General Provisions
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26. No modification or waiver of this Remediation Agreement shall be valid
except by written amendment to this Remediation Agreement duly executed by
Eskimo Pie Corporation and the NJDEP. Any amendment to this Remediation
Agreement shall be executed by the NJDEP and Eskimo Pie Corporation The NJDEP
reserves the right to require the resolution of any outstanding violations of
ISRA or this Remediation Agreement prior to executing any such amendment.
27. This Remediation Agreement shall be binding, jointly and severally, on each
signatory, its successors, assignees and any trustee in bankruptcy or receiver
appointed pursuant to a proceeding in law or equity. No change in the ownership
or corporate status of any signatory or of the industrial establishment or site
shall alter signatory's responsibilities under this Remediation Agreement.
28. Eskimo Pie Corporation agrees not to contest the authority or jurisdiction
of the NJDEP to issue this Remediation Agreement; Eskimo Pie Corporation further
agrees not to contest the terms or conditions of this Remediation Agreement
except as to interpretation or application of such specific terms and conditions
that are being enforced in any action brought by the NJDEP to enforce the
provisions of this Remediation Agreement.
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29. Eskimo Pie Corporation shall provide to the NJDEP written notice of the
dissolution of its corporate or partnership identity, the liquidation of the
majority of its assets or the closure, termination or transfer of operations at
least five (5) calendar days prior to such action. Eskimo Pie Corporation shall
also provide written notice to the NJDEP of a filing of a petition for
bankruptcy no later than five business days after such filing. These
requirements shall be in addition to any other statutory requirements arising
from the dissolution of corporate or partnership identity, the liquidation of
the majority of assets, or the closure, termination or transfer of operations.
30. For persons executing this Remediation Agreement on behalf of a corporate
entity, Eskimo Pie Corporation shall submit to the NJDEP, along with the
executed original Remediation Agreement, documentary evidence in the form of a
corporate resolution, that the signatory has the authority to bind Eskimo Pie
Corporation to the terms of this Remediation Agreement.
31. Eskimo Pie Corporation expressly agrees that in the event that Eskimo Pie
Corporation fails or refuses to perform any obligation(s) under this Remediation
Agreement as determined by the NJDEP, the NJDEP shall have the right to exercise
any option or combination of options available to the NJDEP under this
Remediation Agreement, or any other statute.
32. Except as otherwise provided, the requirements of this Remediation
Agreement shall be deemed satisfied upon the receipt by Eskimo Pie Corporation
of written notice from the NJDEP that Eskimo Pie Corporation has demonstrated,
to the satisfaction of the NJDEP, that Eskimo Pie Corporation has completed the
substantive and financial obligations imposed by this Remediation Agreement.
Such written notice shall not relieve Eskimo Pie Corporation from the obligation
to conduct future investigation or remediation activities pursuant to federal,
State or local laws for matters not addressed by this Remediation Agreement.
33. Compliance with the terms of this Remediation Agreement shall not excuse
any Person(s) from obtaining and complying with any applicable federal, state or
local permits, statutes, regulations and/or orders while carrying out the
obligations imposed by ISRA through this Remediation Agreement. The execution of
this Remediation Agreement shall not excuse any Person(s) from compliance with
all other applicable environmental permits, statutes, regulations and/or orders
and shall not preclude NJDEP from requiring that the Person(s) obtain and comply
with any permits, and/or orders issued by NJDEP under the authority of the Water
Pollution Control Act, N.J.S.A. 58:10A-1 et seq., the Solid Waste Management
Act, N.J.S.A. 13:1E-1 et seq., and the Spill Compensation and Control Act
N.J.S.A. 58:10-23.11 et seq., for the matters covered herein. The terms and
conditions of any such permit shall not be preempted by the terms and conditions
of this Remediation Agreement if the terms and conditions of any such permit are
more stringent than the terms and conditions of this Remediation Agreement.
Should any of the measures to be taken by the Person(s) during the remediation
of any "found water and surface water pollution result in a new or modified
discharge as defined in the New Jersey Pollutant Discharge Elimination System
("NJPDES") regulations, N.J.A.C. 7:14A-1 et seq., then the Person(s) shall
obtain a NJPDES permit or permit modification from NJDEP prior to commencement
of said activity.
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34. This Remediation Agreement shall be effective upon the execution of this
Remediation Agreement by the NJDEP and Eskimo Pie Corporation. Eskimo Pie
Corporation may consummate the transaction described at Paragraph 2.A above,
upon the execution of this Remediation Agreement. Eskimo Pie Corporation shall
return a fully executed Remediation Agreement to the NJDEP together with the
signature authorization required above within five business days from the
effective date.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Date: 6/15/00 By: /s/ Robert T. Corcory
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Ronald T. Corcory, Assistant Director
Responsible Party Cleanup Element
ESKIMO PIE CORPORATION
Date: 7/13/00 By: /s/ Thomas M. Mishoe, Jr.
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Thomas M. Mishoe, Jr.
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Print Full Name Signed Above
Chief Financial Officer
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