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EXHIBIT 10.37
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Assignment"), made effective as
of November 3, 1992, is entered into by and between Ashland Chemical, Inc. an
Ohio corporation, 0000 Xxxxxx Xxxxxxx, Xxxxxx, Xxxx 00000 ("Assignor"), and JLM
Terminals, Inc., a North Carolina corporation, having an address of 00
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (reassigned).
WHEREAS, by a certain Option to Purchase Agreement effective as of February
28, 1992, between Unocal Oil Company of California ("Unocal") and Assignor, as
amended, attached hereto as EXHIBIT A (the adoptions), Unocal granted to
Assignor an irrevocable and exclusive right and option to purchase property
known as the Cape Fear Terminal, as more particularly described in the Option as
Tracts 1 through 7, together with all easements, appurtenances and other rights
pertaining thereto and the buildings, improvements and fractures located thereon
(the Property); and
WHEREAS, Assignor desires to assign and delegate to Assignee and Assignee
desires to accept assignment and delegation of such Option as it pertains to the
Property and, except as Otherwise provided herein, all duties and obligations of
Assignor under such Option as it pertains to the Property;
NOW, THEREFORE, in consideration of the mutual obligations contained herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged by Assignor, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms that
are defined in the Asset Purchase Agreement between Unocal and Assignor, dated
as of February 14, 1992, as amended by: (i) Amendment dated as of February 28,
1992, (ii) Second Amendment dated Xxxxx 00, 0000, (xxx) Third Amendment dated
April 10, 1992, and Fourth Amendment dated October 30, 1992 (the Asset Purchase
Agreement.), are used with the meanings ascribed to them in the Asset Purchase
Agreement.
2. Assignment. (a) Assignor hereby assigns to Assignee, and Assignee
hereby accepts, all of Assignor's right and interest to acquire the Property
under the Option and the previsions of the Asset Purchase Agreement that are
incorporated by reference into the Option, but not the right to acquire the real
estate and improvements identified as Tract No. 8 of Parcel B therein and the
easements pertaining to Tract 8 as described in the Option, commonly known as
the Carolina Terminal of Unocal (the Carolina Terminal.) or any obligations of
Assignor with respect to the Carolina Terminal, to have and to hold the same
unto the Assignee, its successors and administrators and assigns, forever,
subject, nevertheless, to the terms, conditions and stipulations in this
Assignment or the Option.
(b) In furtherance of the exercise of said Option, Assignor also
hereby assigns to Assignee all of the Assignor's right, title and interest in
and to the benefits of all representations, warranties and covenants of Unocal
and all conditions and other provisions
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arising under the Asset Purchase Agreement and the Option as they pertain to the
Assignee or the Property, including all causes of action and all other rights,
powers or interests of Assignor under the Asset Purchase Agreement and Option to
the extent relevant to the Assignee or the Property.
3. Assumption. Assignee hereby assumes and agrees to perform and observe
the obligations of Assignor under the Option (and under the Asset Purchase
Agreement that are incorporated by reference into the Option as they pertain to
the Assignee or the Property), except as otherwise provided in this Assignment.
(a) Assignee does not assume any obligation of Assignor under the
Option or the Asset Purchase Agreement pertaining to the Carolina Terminal or
any property other than the Property.
(b) Assignee does not assume any obligation of Assignor arising under
the Asset Purchase Agreement identified in Section 4 of this Agreement except as
provided in Section 4.
(c) Assignee does not assume any obligation under the following
provisions of the Option:
(1) The provisions of Section 4(a) and 4(b) of the Option
applicable to the period prior to Assignee's acquisition of the Property
following the exercise of the Option (the "Acquisition Date"). Assignor agrees
to pay any amount otherwise due to Unocal pursuant to such provisions, so that
Unocal will not have the power, under Section 4(b) of the Option, to terminate
Assignee's right to acquire the Property.
(2) Assignee does not assume any of Assignor's obligations under
Section 4(c) of the Option except with respect to obligations of the Assignor
under the Asset Purchase Agreement that are assumed by Assignee pursuant to this
Section 3.
(3) Assignee does not assume any of Assignor's obligations under
Section 8 of the Option, all of which shall remain the obligations of Assignor,
except to the extent assumed by Assignor pursuant to this Section 3.
(d) Assignee does not assume any obligation of Assignor under any
Related Agreement except obligations under the Option expressly assumed by
Assignee elsewhere in this Assignment. Notwithstanding anything to the contrary
herein, Assignee does not assume any obligation of Assignor arising under the
Operating Agreement.
(e) Assignee expressly assumes all Obligations of Assignor, if any,
under any leases or other agreements identified in Schedule 1 hereto (the
"Contracts").
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4. Indemnification by Assignor.
(a) Assignor agrees to defend, indemnify, and hold Assignee, its
Affiliates and their respective directors, officers, employees and agents (each,
an "Assignee Indemnitee") harmless from any cost, expense or liability arising
from the imposition on an Assignee Indemnitee or the Property of any obligations
or liabilities of Assignor under the Option or the Asset Purchase Agreement
(collectively, "the Obligations") that Assignor expressly has retained under
Section 3 hereof or are identified in Section 4(b) hereof.
(b) The Asset Purchase Agreement, the applicable portions of which are
incorporated by reference into the Option, imposes certain Obligations on
Assignor as "Purchasers, as defined therein. In addition to the Obligations
retained by Assignor as provided elsewhere herein, Assignee does not assume and
Assignor expressly retains, and will hold the Assignee Indemnitees harmless from
and indemnify the Assignee Indemnitees for any cost, expense or liability from,
the application to an Assignee Indemnitee or any of its Affiliates of the
following provisions of the Asset Purchase Agreement that pertain to the
"Purchasers as defined in the Asset Purchase Agreement.
1. Section 2.2(a)(i),(vi)(viii) and (x).
2. Section 2.4(b)(i), as to Material Contracts relating to Assets
other than the Property.
3. Section 2.4(b)(ii) with regard to Environmental Compliance Costs
pertaining to Assets other than the Property.
4. Section 2.4(b)(iii) with respect to any Costs of Taking Category
B Property Out of Service.
5. Section 2.4(b)(v), except as to (i) Section 9.3 as applicable to
the Property, (ii) Section 9.4 as applicable to the Property
and (iii) as further subject to Section 19 hereof.
6. Section 2.4(b)(vi)(E) as to any Related Agreement other than the
Option, as limited by this Assignment.
7. Section 2.4(b)(vi)(F) and (G), except to the extent applicable
to the Property.
8. Section 2.4(b)(vi)(K), except to the extent applicable to the
Property.
9. Section 2.4(b)(vi)(L), except to the extent applicable to the
Property.
10. Section 2.4(c), except to the extent applicable to the Property.
11. Section 2.6, except with respect to Environmental Cleanup
Liabilities relating to the Property.
12. The provisions of Article Four do not apply to Assignee.
13. Section 5.2, except to the extent applicable to the Property.
14. Section 5.3, except to the extent applicable to the Property.
15. Section 5.4, except to the extent the provisions pertain to the
Property.
16. Section 5.5, except with respect to Permits used in connection
with the Property.
17. Section 5.7.
18. Section 6.2, except to the extent applicable to the Property.
19. Section. 7.1(b), except to the extent applicable to the Property.
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20. Section 7.3(a), except as to any representations, or warranties
or certificates made or given by Assignee to Unocal in
connection with Assignee's acquisition of the Property, or any
covenant expressly assumed by Assignee elsewhere in this
Agreement.
21. Section 7.3(b), except with respect to Assignee's use of or
conduct under any Permit provided to Assignee by Unocal.
22. Section 7.3(c), except to the extent applicable to the Property.
23. Section 7.3(d)(i), except to the extent applicable to the
Property.
24. Section 7.3(d)(ii), except to the extent applicable to the
Property.
25. Section 7.3(e), except for Taxes relating to the Property that
relate to periods after the Acquisition Date.
26. Section 7.3(f).
27. Section 7.3(g), except with respect to the conduct of Assignee
and its agents, employees or contractors in performing this
Assignment or the Option.
28. Section 7.3(h), except to the extent applicable to the Property.
29. Section 9.1.
30. Section 9.2, as to any Related Agreement other than the Option,
as limited by this Assignment.
31. Section 9.3, except with respect to the Property.
32. Section 9.4, except with respect to the period after the
Acquisition Date.
33. Section 9.5, except with respect to the Contracts.
34. Section 9.8, ss.9.9, ss.9.10.
35. Section 9.11, except with respect to the Property.
36. Section 9.12, except returns required to be filed and taxes
attributable to any time after the Acquisition Date.
37. Section 9.14.
38. Section 10.4, except with respect to Confidential Information
related to the Property and disclosed by Assignee or its
Affiliates.
39. Section 10.5, as to any Related Agreement other than the Option,
as limited by this Assignment.
40. Any Obligations arising under Article Eleven or Article Twelve
5. Disclaimer. Assignor makes no representation or warranty, express or
implied, with respect to the condition of the above described Property, or any
improvement, building, structure, facilities, tenements thereon and
appurtenances thereto belonging or in any wise appertaining to said Property, or
otherwise, its merchantability, or its fitness for Assignee's intended use.
6. Information. Assignor makes no representation or warranty as to the
accuracy or completeness of any survey, title abstracts, title examinations or
reports, structural or environmental surveys or reports, or other data or
information, delivered by Assignor to Assignee. Assignee acknowledges its
reliance on the accuracy or completeness of any portion of such data or
information is at its own risk.
7. Indemnification By Assignee. As part of the consideration for the
assignment of the above Option, Assignee will fully defend, protect, indemnify,
hold harmless, and
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render whole Assignor, its Affiliates and their respective directors, officers
and agents (each an Assignor Indemnitee"), from and against each and every
claim, demand or cause of action, and any liability, cost, expense (including,
but not limited to, reasonable attorneys fees), damage or loss in connection
therewith, which may be made or asserted by Assignee, its agents, or successors,
or by any third party or parties (including, but not limited to, governmental
agencies) by reason of (i) Assignee's failure to observe and perform its
obligations under the Option or this Assignment, or its obligations under the
Asset Purchase Agreement assumed by this Assignment that results in a claim
against an Assignor Indemnitee pursuant to Section 7.3(h) of the Asset Purchase
Agreement, or (ii) on account of personal injury or death, or property or
environmental damage, contamination, pollution or adverse effects on the
environment, including the cost of remediation or clean-up related to any
operations conducted thereon or ownership of the Property, that are caused by or
arise out of Assignee's use or ownership of the Property after the Acquisition
Date.
8. Survival. The obligations of Assignor and Assignee under this
Assignment will survive Assignee's exercise of the Option and any closing on the
Property.
9. Successors and Assigns. The Option shall not be assignable by Assignee
without Assignor's prior written consent, which consent may be withheld for any
reason whatsoever. Subject to the provisions of this paragraph, the Option and
this Assignment will be binding upon the parties hereto and their respective
successors and assigns.
10. No Recourse. In the event the Option is exercised by Assignee and for
any reason Unocal fails to perform any of its obligations under the Option,
those provisions of the Asset Purchase Agreement assigned by Assignor to
Assignee, or otherwise, Assignor shall have no liability to Assignee, its
successors or assigns, and Assignee shall have no recourse against Assignor, its
successors and assigns, for such failure to perform.
11. Integration. This Assignment is intended by the parties as the final,
complete and exclusive statement of the terms and conditions of their agreement
and is intended to supersede all previous agreements and understandings between
the parties relating to its subject matter. No prior stipulation, agreement,
understanding or course of dealing between the parties or their agents with
respect to the subject matter of this Assignment shall be valid or enforceable
unless embodied in this Assignment. No amendment, modification or waiver of any
provisions of this Assignment shall be valid or enforceable unless in writing
and signed by the party to be charged. Nothing in this agreement shall be
binding upon either party until this agreement has been executed and delivered
by both parties.
12. Severability. If any provision of this Assignment, or the application
of any such provision to any person or in any circumstance is held invalid, the
application of such provision to any other person or in any other circumstance,
and the remainder of this Assignment, shall not be affected thereby and shall
remain in full force and effect.
13. Counterparts. This Assignment may be executed in multiple counterparts
and each counterpart shall be deemed an original.
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14. Recordation. Neither party may record this Assignment.
15. Brokers. Assignor warrants that Assignee will not incur any liability
for any claim of any broker or other party engaged by Assignor or its Affiliates
in connection with this assignment of the Option and Assignor will defend and
hold Assignee harmless from any such claim.
16. Environmental Compliance Costs. Assignee acknowledges that the
obligations of Unocal to indemnify for Environmental Compliance Costs do not
apply to the Property and Assignee agrees not to assert any claim therefor that
would affect the indemnification obligations of Unocal to Assignor for
Environmental Compliance Costs unless Assignee indemnifies Assignor for any loss
to Assignor or limitation of Unocal's obligations to Assignor for Environmental
Compliance Costs resulting from such claim by Assignee.
17. Environmental Claims. Assignee acknowledges that Unocal's obligation
to indemnify Assignor for certain Environmental Claims or certain other claims
is limited under Section 7.1 (c)(iv) of the Asset Purchase Agreement. Assignee
agrees to indemnify Assignor for any loss of or limitation in Unocal's
obligation to indemnify Assignor for claims limited by such Section 7.1(c)(iv)
that result from any claim brought against Unocal by Assignee.
18. Cooperation. It is Assignor's intent that, by this Assignment,
Assignee will have all rights and powers to bring actions and enforce remedies
against Unocal that Assignor would have if Assignor exercised the Option and
acquired the Property, subject to the express limitations contained herein. If
Assignor is a necessary party in interest with respect to any action or redress
sought by Assignee under the Option or the Asset Purchase Agreement (because of
privily or otherwise), Assignor agrees to take actions reasonably requested by
Assignee from time to time, including the commencement and persecution of
actions, at Assignee's sole cost and expense. Without limiting the foregoing,
Assignor agrees that on request of Assignee it will in good faith take such
actions reasonably required by Assignee, at Assignee's expense, to provide to
Assignee the practical benefits of all representations, warranties and covenants
of Unocal applicable to the Property and contained in the Asset Purchase
Agreement or any other document delivered by Unocal to Assignor in connection
therewith, including the Operating Agreement pertaining to the Property and the
opinion of Unocal counsel delivered in connection with the closing under the
Asset Purchase Agreement.
19. Certain Allocations. The Asset Purchase Agreement calls for the
"Purchaser" to incur obligations for certain taxes, assessments and governmental
charges, utility bills and certain operating expenses with respect to Category B
Property as of the Effective Time. Assignor agrees that Assignee's obligations
for any such items relating to the Property shall be limited to the portion
accruing after the Acquisition Date. Assignee agrees to assume the obligation to
submit invoices to Unocal for Unocal's portion of such items for periods prior
to the Effective Time, as required by the Asset Purchase Agreement. However, if
Unocal disputes its liability for any such expense for any time prior to the
Acquisition Date, Assignor will pay such amount promptly upon request of
Assignee and Assignor shall pursue reimbursement from Unocal.
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20. Reporting. If Assignee exercises the Option and acquires the Property,
Assignee will provide to Assignor from Acquisition Date copies of any notices,
or notify Assignor of any oral notices, it has provided to federal, North
Carolina, or local environmental or emergency management and response agencies,
regarding releases, spills, discharges or emissions of oil, hazardous
substances, hazardous materials, hazardous wastes, or toxic substances, which
notices it is required to provide under any federal, North Carolina, or local
environmental law or regulation, and which pertain to the Property.
Additionally, Assignee will provide to Assignor copies of any notifications of
noncompliance it has provided to federal, North Carolina or local environmental
agencies required under the terms of any permit, judicial or administrative
order, or regulation, as such notifications pertain to the Property, and any
notice regarding environmental damage, contamination, pollution or adverse
effect that it is required to provide to Unocal under the terms of any agreement
it enters or has entered with Unocal, regarding the Property. Furthermore,
Assignee shall provide to Assignor notice of any and all planned or completed
remediation or clean-up of the Property required by any federal, North Carolina
or local environmental law or regulation. The aforesaid notices shall be
forwarded to Assignor in a timely manner, no later than 48 hours following the
notification of the governmental agency or Unocal.
21. Indemnification Notices and Procedures. (a) A party entitled to
indemnification under either Section 4 or Section 7 hereof is referred to herein
as an "Indemnified Party; a party against whom indemnification is sought is
referred to herein as an "Indemnifying Party"; and a Claim for which
indemnification is sought pursuant to such sections is referred to as a "Claim".
(b) An Indemnified Party seeking indemnification hereunder shall
provide written notice of such Claim to the Indemnifying Party. If the Claim
results from any claim, demand, defense or assertion by a third party, the
Indemnified Party will give the Indemnifying Party notice of such claim as
promptly as is practical after receipt by the Indemnified Party of notice from
such third party, specifying the nature and amount of the Claim to the extent
reasonably feasible (which amount shall not be conclusive of the final amount of
the demand or claim) but the failure to notify the Indemnifying Party will not
relieve the Indemnifying Party from any liability under this Assignment unless
the omission actually prejudices the rights and positions of the Indemnifying
Party, and then only to such extent of the effect of such prejudice.
(c) If an action is brought against an Indemnified Party and it
notifies the Indemnifying Party of the commencement in accordance with this
Section 21, the Indemnifying Party will assume the defense of the Indemnified
Party or take action to avoid any liability imposed upon an Indemnified Party
that is the subject of the Claim. The Indemnified Party may participate in any
defense, or take any action the Indemnified Party deems appropriate, at its
expense. The Indemnifying Party shall given written notice of its assumption of
defense of such claim of the Indemnified Party. If the Indemnified Party assumes
the defense of such Claim, the Indemnified Party will not settle such dispute
without the consent of the Indemnifying Party, which consent will not be
unreasonably withheld. An Indemnifying Party defending against a Claim may not
enter into a settlement that does contain an absolute and unconditional release
of the Indemnified Party, without the
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Indemnified Party's consent, which shall not be unreasonably withheld. Both the
Indemnifying Party and the Indemnified Party will cooperate with the other in
connection with the defense of third party actions subject to the
indemnification provisions of this Assignment.
22. Notices. Any notices to be given to a party under this Assignment
shall be given in writing either delivered by hand, sent by certified or
registered mail; or by facsimile, as follows (except as subsequently changed by
written notice of a party to the other), and shall be effective upon receipt
To Assignor
Ashland Chemical, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attn: President
Fax: (000) 000-0000
with a copy to
Ashland Chemical, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
To Assignee
JLM Terminals, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
23. Governing Law. This Assignment shall be governed by the laws of the
State of North Carolina.
24. Waiver and Amendments. No waiver of any portion of the Assignment
shall be deemed to have been made by any party of any its rights unless
evidenced by written notice that expressly refers to the matter to be waived and
is signed on behalf of the party. Any such waiver shall constitute a waiver only
with respect to the specific matter described in such writing and shall in no
way impair the rights of the party granting the waiver in any other respect or
at any other time. This Assignment shall not be amended or modified except by an
instrument in writing signed by the party against whom the enforcement is
sought.
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25. Time Computation. In the computation of any period of time provided
for in this Assignment or by law, the day of the act or event from which such
period of time then shall be excluded and the last day of such period shall be
included, unless it is not a business day, in which case the period shall be
deemed to run into the next day which is a business day. The term "business days
as used here means a calendar day other than a Saturday, Sunday or legal holiday
observed by national banks located in the State of Ohio.
26. Payment. In exchange for this Assignment, Assignee shall pay the
following amounts to Assignor, by check or wire transfer (as Assignor might
request):
(i) One Hundred Fifty Thousand Dollars ($150,000.00) upon execution
and delivery of this Assignment by Assignor; and
(ii) One Hundred Fifty Thousand Dollars ($150,000.00) on or
before 90 days from the date hereof.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption Agreement effective as of the day and year first written above.
ASSIGNOR
ATTEST ASHLAND CHEMICAL, INC.
/s/Xxxxxxx Xxxxxxxx Xx. By:/s/Xxxxxxx X. Ashbettle
------------------------------- -------------------------------
(Corporate Seal) Title:Group V.P.
-------------------------
ASSIGNEE
ATTEST JLM TERMINALS, INC.
/s/ By:Xxxx X. Xxxxx
------------------------------- -------------------------------
(Corporate Seal) Title:President
-------------------------
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SCHEDULE 1
CONTRACTS RELATING TO CAPE FEAR TERMINAL
1. Agreement between Gulf Oil Corporation and Unocal recorded in Book 1172,
Page 332, New Hanover County Registry (the Registry).
2. Easement(s) to Carolina Power and Light Company recorded in Book 1178,
Page 1496, Book 834, Page 134 and Book 1019, Page 531 in the Registry.
3. Easement and side track agreement with Atlantic Coast Line Railroad
Company recorded in Book 656, Page 55 in the Registry.
4. Unrecorded docking agreement between Unocal, Gulf Oil Company and ATC
Petroleum, Inc. dated September 5, 1975.
5. Terminalling Agreement between Unocal and Xxxxxx Chemical Corporation
dated March 9, 1983.
6. Terminal Storage and Service Agreement between Unocal and Ocelot
Chemical Corporation dated August 1, 1989, as amended effective June 29,
1990.
7. Any obligations arising under the Agreement dated as of October 1, 1984
between X. Xxxxxxx Energy Marketing, Inc., d/b/a ATC Petroleum, Inc.,
and Pace Oil Co., Inc.
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EXHIBIT A
OPTION TO PURCHASE AGREEMENT
WILMINGTON, NC
For good and valuable consideration cash in hand paid, receipt of which is
hereby acknowledged, by payment made pursuant to the Asset Purchase Agreement,
between Union Oil Company of California and Ashland Chemical, Inc., dated as of
February 14, 1992 ("Asset Purchase Agreement") Union Oil Company of California,
at X.X. Xxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Vice President,
Corporate Budgets, Planning and Economics, Fax No. (000) 000-0000 ("Unocal"),
HEREBY GRANTS to Ashland Chemical, Inc., an Ohio corporation, with a mailing
address of 0000 Xxxxxx Xxxxxxx, Xxxxxx, Xxxx 00000, Attention: Real Estate
Department, Fax. No. (000) 000-0000 ("Purchaser") or its assignee, THE
IRREVOCABLE AND EXCLUSIVE RIGHT AND OPTION TO PURCHASE ("Option") the Property
comprised of two parcels, Parcel A being Tract Nos. 1, 2, 3, 4, 5, 6 and 7;
Parcel B being Tract No. 8, now owned by Unocal and described below, together
with the buildings, improvements, appurtenances, and fixtures located on such
land ("Property"). This Option may also be exercised in respect to only one of
the two parcels; provided however, that, the Property is by law divisable and
the single parcel may be sold in accordance with all applicable legal
requirements.
PARCEL A
Tract No. 1.
Beginning at the intersection of the Northern line of Xxxxxx Street with
the Western line of Surry Street, and running thence Northwardly along
said line of Surry Street 166 feet; thence Southwardly 79(degree) 30' West
to the low water xxxx of the Cape Fear River; thence the same course
continued to the line of anchor piles approximately 100 feet east of the
Harbor line or channel or said River; thence Southwardly with the Easterly
line of said line of anchor piles to a point where the Northerly line of
Xxxxxx Street, if extended westwardly, would intersect said line of anchor
piles; thence with the line of said extended street Eastwardly to the mean
water line of the Cape Fear River, and thence the same course continued
Eastwardly and along the Northern line of Xxxxxx Street 626.5 feet to the
beginning. Same being part of lots 4, 5 and 6 in Block 29, according to
the official plan of the City of Wilmington, North Carolina, together with
all that portion of the wooden building that extends into Surry Street and
also together with all riparian rights appurtenant to the lands described
above. Together with an easement 15 feet in width, across the property
adjacent to Tract No. 1 described above for the maintenance of a pipeline
connecting the above-described terminal property with the smaller terminal
property lying on the North side of Wooster Street (Tract No. 8), which
right-of-way easement is more particularly described in a right-of-way
grant from BP Oil Corporation dated November 17, 1970 and recorded in Book
897 at Page 778 of the New Hanover County Registry, reference to which is
hereby made for a more particular description.
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Tract No. 2.
Beginning at a point in the Southern line of Xxxxxx Street twenty-four
(24) feet westwardly from the intersection of the said southern line of
Xxxxxx Street with the Western line of Surry Street (if Surry Street were
opened according to the official plan of the City of Wilmington), the said
beginning point being four hundred and twenty (420) feet westwardly from
the intersection of the said Southern line of Xxxxxx Street with the
Western line of Front Street; and runs thence from the said beginning
point, southwardly and parallel with Front Street three hundred and
ninety-six (396) feet to the northern line of Xxxxxx Street; thence
westwardly and along the said Northern line of Xxxxxx Street, extended
Westwardly six hundred and sixty-two (662) feet to an iron pipe on the
river bank; thence continuing the same course, that is an extension
westward of the Northern line of Xxxxxx Street, about four hundred and two
(402) feet more or less to the line of anchor piles approximately 100 feet
east of the Harbor line or channel of the Cape Fear River; thence
northwardly, along said line of anchor piles, about four hundred and
seventeen (417) feet more or less to the Southern line of Xxxxxx Street
extended westward; thence eastward along the said Southern line of Xxxxxx
Street (extended westward) about three hundred and thirty-four (334) feet
to an iron pipe on the bank of the river; thence continuing eastward with
the said Southern line of Xxxxxx Street Six Hundred and Seven (607) feet
more or less to the point of beginning; saving and excepting from the
operation of this instrument a strip of land fifteen (15) feet wide
running along and with the eastern boundary line above mentioned from
Xxxxxx Street Northwardly to Xxxxxx Street and parallel with Front Street,
the same to be forever kept open for use of the public as an alley way;
the same being the western part of lots 1, 2, 3, 4, 5 and 6 in block 15,
according to the official plan of the City of Wilmington, N.C., and the
major part of said block.
Tract No. 3.
An undivided one-half (1/2) interest in that tract of land beginning at
the Northwesternly corner of Block 16, as same is shown upon the official
plan of the City of Wilmington, North Carolina, and running thence from
said beginning point Southwardly and along the Westernly boundary line of
said Block 16 198 feet; thence Westwardly and parallel with Xxxxxx Street
66 feet to the Easternly boundary line of Block 15, according to the said
plan of said City; and running thence Northwardly and along the said
Easternly boundary line of said Block 15 198 feet to the Southernly line
of said Block 15 198 feet to the Southernly line of Xxxxxx Street, the
Northeasternly corner of said Block 156, running thence Eastwardly and
along the Southernly line of Xxxxxx Street 66 feet to the Northwesternly
corner of said Block 16, the point of Beginning.
Tract No. 4.
An undivided one-half (1/2) interest in the tract of land beginning at the
intersection of the Western line of Front Street with the Southern line of
Xxxxxx Street, and running thence Southwardly along the Westernline of
Front Street One Hundred Ninety-Eight (198) feet; thence Westwardly and
parallel with Xxxxxx Street Three Hundred Thirty (330) feet to the
00
Xxxxxxx xxxx xx Xxxxx Xxxxxx; thence Northwardly along the Eastern line of
Surry Street One Hundred Ninety-Eight (198) feet to the Southern line of
Xxxxxx Street; thence Eastwardly along the Southern line of Xxxxxx Street
Three Hundred Thirty (330) feet to the point of beginning; the same being
all of Xxxx 0, 0 xxx 0, xx Xxxxx 16, according to the official plan of the
City of Wilmington, North Carolina. Together with all of the right, title
and interest of Cape Fear in and to all streets and ways in, on, through,
over, upon, adjacent to and adjoining said tract of land.
Tract No. 5.
An undivided one-half (1/2) interest in the tract of land beginning at the
point of intersection of the Western line of Surry Street with the
Southern line of Xxxxxx Street, and running thence Southwardly along the
Western line of Surry Street One Hundred Ninety-Eight (198) feet; thence
Westwardly and parallel with Xxxxxx Street Twenty-four (24) feet; thence
Northwardly and parallel with Surry Street One Hundred Ninety-eight (198)
feet to the Southern line of Xxxxxx Street; thence Eastwardly along the
Southern line of Xxxxxx Street Twenty-Four (24) feet to the point of
beginning; the same being the Eastern part of Xxxx 0, 0 xxx 0, xx Xxxxx
15, according to the official plan of the City of Wilmington, North
Carolina. Together with all of the right, title and interest of Cape Fear
in and to all streets and ways in, on, through, over, upon, adjacent to
and adjoining said tract of land.
Tract No. 6.
Beginning at a point where the Northern line of Xxxxxx Street intersects
with the Western line of Front Street, and runs thence Northwardly with
the Western line of Front Street One Hundred and Ninety-eight (198) feet;
thence Westwardly parallel with Xxxxxx Street Pour Hundred and Twenty
(420) feet; thence Southwardly parallel with Front Street One Hundred and
Ninety-eight (198) feet to the Northern line of Xxxxxx Street; thence
Eastwardly with the Northern line of Xxxxxx Street Four Hundred and Twenty
(420) feet to the point of beginning. Being all of lots 4, 5 and 6, in
Block 16 and the east ends of lots 4, 5 and 6, in Block 15, according to
the official plan of the said City of Wilmington, North Carolina, together
with all and singular the lands, tenements, easements and appurtenances
thereunto belonging, or in anywise appertaining.
PARCEL B
Tract No. 7.
An undivided one-half interest in and to that strip of land approximately
100 feet in width lying between the Harbor line or channel of the Cape
Fear River (being the Western boundary of said strip) and the line of
anchor piles approximately 100 feet east of said Harbor line (being the
Eastern boundary of said step) and extending from an extension of the
center line of Xxxxxxxxxx Street (being the Southern boundary of said
strip) approximately 1085 feet to the Northern boundary of the properties
of Cape Fear Terminal Company which is approximately 85 feet north of the
Northern line of Xxxxxx Street as
15
extended; together with an undivided one-half interest in all properties,
improvements, structures and betterments situated thereon and in the riparian
rights in connection therewith; provided, however, this conveyance is without
warranty as to any portion of said strip which may constitute a part of
Xxxxxxxxxx, Xxxxxx or Xxxxxx Streets, or to any portion of said strip which lies
below the mean high water xxxx of the Cape Fear River.
Tract No. 8.
Beginning at a point in the northern line of Wooster Street, said point being a
nail in the concrete located south 87 degrees 30 minutes west 110 feet from the
intersection of the northern line of Wooster Street with the Xxxxxx line of
Surry Street according to the official plan of the City of Wilmington, and runs
thence north 02 degrees 30 minutes west and parallel with the western line of
Surry Street 132.0 feet to an old fence post; thence south 87 degrees 30 minutes
west and parallel with the northern line of Wooster Street 116.5 feet; thence
north 02 degrees 30 minutes west and parallel with the western line of Surry
Street 18.0 feet to an iron pipe; thence south 87 degrees 30 minutes west 529
feet, more or less, to the eastern harbor line of the Cape Fear River; said
point in said harbor line being 150 feet north of the north line of Wooster
Street measured at right angles; thence southwardly with the harbor line of the
Cape Fear River 150 feet, more or less, to where said harbor line is intersected
by the northern line of Wooster Street extended westwardly to said harbor line;
thence north 87 degrees 30 minutes east and along the northern line of Wooster
Street, portions of which have now been closed, 679 feet, more or less, to the
point of Beginning.
Together with a 20 foot joint use easement with the adjoining property owner on
the north described as follows:
Beginning at a point in Block 57 of the City of Wilmington that is located 150
feet northwardly from the northern line of Wooster Street and 243 feet west of
the western line of Surry Street, both measurements being made at right angles
to said street, and runs thence northwardly and parallel with the western line
of Xxxxx Xxxxxx 00 feet; thence westwardly parallel with the northern line of
Wooster Street to the Cape Fear River; thence southwardly along the Cape Fear
River 20 feet, more or less, to a point 150 feet north of the northern line of
Wooster Street, measured at right angles to said street; thence eastwardly and
parallel with the northern line of Wooster Street to the point of beginning.
Together with a right-of-way and easement 15 feet in width for the maintenance
of two-8 inch pipelines granted to Union Oil Company of California by BP Oil
Corporation by right-of-way grant recorded in Book 000, Xxxx 000, Xxx Xxxxxxx
County Registry. The location of said right-of-way was altered since the
original grant in 1969.
The foregoing property, together with the location of both easements above
described, are shown on survey for Union Oil Company of California dated March
S. 1974 by Xxxxxx X. Xxxxxx, R.L.S., and recorded in Map Book 15 at Page 25 of
the New Hanover County Registry, and being Tracts 7 and 8 of the property
conveyed by Cape Fear Terminal
16
Company to the Pure Oil Company by Deed dated April 19, 1958, and recorded
October 31, 1958, in Book 000, Xxxx 000, Xxx Xxxxxxx County Registry; and
being acquired by Union Oil Company by merger of the Pure Oil Company into
Union Oil Company of California effective August 12, 1965 and recorded in
Record of Incorporation Book "L", page 308, New Hanover County Registry.
This Option for the entirety of the Property and for a parcel will expire at
5:00 p.m. Eastern Standard Time on February 28, 1993 or upon prior written
notice by Purchaser.
If Purchaser exercises its Option to Purchase a parcel and the Property is
divisable, Purchaser will reimburse all costs associated with a subdivision of
the Property.
This Option may be exercised only by written notice, executed on behalf of the
Purchaser, and delivered to Unocal at the above address, on or prior to the
expiration date and time, with a copy faxed to Group Vice President, Industrial
Products Group, FAX No. (000) 000-0000 and such other persons to be notified
pursuant to the Asset Purchase Agreement. The notice shall specify a Closing
Date which, except as set forth in Section 6, shall not be more than thirty (30)
days after notice of the exercise of the Option is given.
In the event this Option is timely exercised, a sale and purchase agreement
shall exist on the teens and conditions herein and the applicable portions of
the Asset Purchase Agreement, the terms of which are incorporated herein by
reference.
1. Closing At the closing hereunder, Unocal shall deliver to Purchaser:
(a) A duly recorded Deed for the Property, substantially in the form of
Exhibit N to the Asset Purchase Agreement with a legal description
conveying that part of the Property purchased pursuant to an exercise of
this option.
(b) Actual possession of the Property, free, clear and discharged of
possession by any person, ordinary wear and tear excepted.
2. Conditions to Purchaser's Obligations Purchaser, at its sole discretion, may
cancel this Option prior to its exercise or termination. After Purchaser
exercises its option Purchaser may not cancel the Option or the sale and
purchase agreement and the parties hereto will use their best efforts to
close and transfer title pursuant to the terms set forth herein and in the
Asset Purchase Agreement.
3. Failure to Exercise Option If Purchaser fails to exercise this Option and
the Option expires, all consideration for this Option shall be retained by
Unocal as agreed liquidated damages in full settlement of any and all claims
for such failure to exercise.
17
4. Taxes, Assessments, Charges
(a) If this Option is timely exercised, Purchaser shall reimburse Unocal
for all taxes, assessments, whether general or special, and governmental
charges of any kind whatsoever that might at any time have been lawfully
assessed or levied against with respect to this Property (excluding,
without limiting the generality of the foregoing, taxes levied upon or with
respect to the receipts, income or profits of Unocal and all other charges
in the form of a tax incurred in the maintenance and upkeep of this
property from the Effective Time until the exercise of this Option;
provided, that with respect to special assessments or other governmental
charges that may lawfully have been paid in installments over a period of
years, Purchaser shall be obligated to pay, or cause to be paid, only such
installments as are required to be paid from the Effective Time.
(b) Purchaser may, at its expense and in its own name and behalf, in good
faith contest any such taxes, assessments and other charges and in the event
of any such contest, may permit the taxes, assessments or other charges so
contested to remain unpaid during the period of such contest and any appeal
therefrom; provided that, Purchaser (i) gives Unocal written notice of its
intention so to do, (ii) diligently prosecutes any such contest, and (iii)
if requested by Unocal, in a penal amount of at least the sum of any such
tax, assessment or other charge so contested conditioned upon the payment,
if so adjudged, of the contested tax, assessment or other charge, together
with all interest and penalties accruing thereon, costs of suit and
reasonable attorneys fees, or other indemnity satisfactory to Unocal to the
same extent and if, provided further, Purchaser promptly pays any Judgment
enforcing the tax, assessment or other charge so contested. In the event
Purchaser shall fail to pay or cause to be paid any tax, assessment or
charge in accordance with the terms of this Section or fails to file any
notice or suit as required by law to protest any such tax, assessment or
other charge for a period of time in excess of ten (10) days after notice of
such failure, Unocal, may at its option by notice to Purchaser terminate
Purchaser's power to acquire any such parcel.
(c) Any time Purchaser is in breach of any duty, obligation, or promise of
it as set above or pursuant to the Asset Purchase Agreement or the Operating
Agreement and any such breach is not cured within seven (7) days after
Purchaser's receipt of notice of any such breach, Unocal may, at its sole
election but without obligation and in addition to any such other remedy it
may have pursuant to this Agreement or law, cure any such breach and/or pay
any amount to any third party to cure any such breach. In the event of any
such action as aforesaid by Unocal, the amount of all sums expended by
Unocal and interest thereon at the RAP Rate shall be due and owing.
5. General Provisions Any word or expression used in this Option defined in
Article 1 of the Asset Purchase Agreement shall have the same meaning as defined
in the Asset Purchase Agreement. The sections of the Asset Purchase Agreement
which may be applied to this Option are incorporated herein as applicable
sections and fully enforceable as though set forth herein. To the extent the
terms herein conflict with the Asset Purchase Agreement, the terms of the Asset
Purchase Agreement shall control. All provisions of the Asset Purchase Agreement
that
18
apply to the conveyance of title of a Category A Property shall apply to the
conveyance of this Category B Property.
6. Conveyance of Title Title shall be conveyed by the respective forms of Deeds
for the Property substantially as set forth in Schedule N of the Asset Purchase
Agreement with a legal description conveying that part of the Property purchased
pursuant to an exercise of this Option. Unocal shall not be required to convey
title to any Property if such conveyance would violate any law or is otherwise
prohibited. In the event of a delay in the transfer of title to this Property at
the time this Option is exercised, Unocal shall diligently pursue the necessary
approvals to permit a conveyance of title to the Purchaser. If governmental
approval is denied, the parties, unless otherwise agreed to in writing by the
parties, shall cancel the Option and each shall be released of any duty or
obligation hereunder. The duties and obligations set forth in the Asset Purchase
Agreement, allocating environmental liabilities, shall not be altered by the
provisions contained herein.
7. Memorandum of Option Upon notice of either party to the other, the parties
shall execute a Memorandum of Option to Purchase in the form of Attachment "A"
attached to this Option to Purchase. The party requesting the other party to
execute the memorandum shall pay all costs, fees, and taxes to have it recorded.
8. Cost and Expenses During the term of this Option Purchaser shall pay all
costs and expenses to be paid by Purchaser as set forth in the Asset Purchase
Agreement and Related Agreements. If this Option is timely exercised, Purchaser
shall reimburse Unocal for all costs as set forth on Attachment B.
IN WITNESS WHEREOF, the parties have hereunto affixed their signatures as of the
date first above written.
WITNESSES: ASHLAND CHEMICAL, INC.
/s/ By:/s/
----------------------------- -----------------------------
/s/ Title:Group V.P.
----------------------------- --------------------------
WITNESSES: UNION OIL COMPANY OF CALIFORNIA
/s/ By:/s/Xxxxxxxx X. Xxxxx
----------------------------- -----------------------------
Xxxxxxxx X. Xxxxx
/s/ Title:Group Vice President
----------------------------- Chemicals & Minerals Division
Industrial Products Group
19
ATTACHMENT A
MEMORANDUM OF OPTION TO PURCHASE
This Memorandum of Option to Purchase is made February 28, 1992, by and between
Union Oil Company of California, a California corporation ("Unocal") and Ashland
Chemical, Inc., an Ohio corporation, ("Ashland") with a mailing address of 0000
Xxxxxx Xxxxxxx, Xxxxxx, Xxxx 00000.
WITNESSETH
1. Union has of even date hereof granted to Ashland an Option to Purchase that
certain real property described as follows:
Tract No. 1.
Beginning at the intersection of the Northern line of Xxxxxx Street
with the Western line of Surry Street, and running thence
Northwardly along said line of Surry Street 166 feet; thence
Southwardly 79(degree) 30' West to the low water xxxx of the Cape
Fear River; thence the same course continued to the line of anchor
piles approximately 100 feet east of the Harbor line or channel of
said River; thence Southwardly with the Easterly line of said line
of anchor piles to a point where the Northerly line of Xxxxxx
Street, if extended westwardly, would intersect said line of anchor
piles; thence with the line of said extended street Eastwardly to
the mean water line of the Cape Fear River; and thence the same
course continued Eastwardly and along the Northern line of Xxxxxx
Street 626.5 feet to the beginning. Same being part of lots 4, 5 and
6 in Block 29, according to the official plan of the City of
Wilmington, North Carolina, together with all that portion of the
wooden building that extends into Surry Street and also together
with all riparian rights appurtenant to the lands described above.
Together with an easement 15 feet in width, across the property
adjacent to Tract No. 1 described above for the maintenance of a
pipeline connecting the above-described terminal property with the
smaller terminal property lying on the North side of Wooster Street
(Tract No. 8), which right-of-way easement is more particularly
described in a right-of-way grant fromBP Oil Corporation dated
November 17, 1970 and recorded in Book 897 at Page 778 of the New
Hanover County Registry, reference to which is hereby made for a
more particular description.
20
Tract No. 2.
Beginning at a point in the Southern line of Xxxxxx Street
twenty-four (24) feet westwardly from the intersection of the said
southern line of Xxxxxx Street with the Western line of Surry Street
(if Surry Street were opened according to the official plan of the
City of Wilmington), the said beginning point being four hundred and
twenty (420) feet westwardly from the intersection of the said
Southern line of Xxxxxx Street with the Western line of Front
Street; and runs thence from the said beginning point, southwardly
and parallel with Front Street three hundred and ninety-six (396)
feet to the northern line of Xxxxxx Street; thence westwardly and
along the said Northern line of Xxxxxx Street, extended Westwardly
six hundred and sixty-two (662) feet to an iron pipe on the river
bank; thence continuing the same course, that is an extension
westward of the Northern line of Xxxxxx Street, about four hundred
and two (402) feet more or less to the line of anchor piles
approximately 100 feet east of the Harbor line or channel of the
Cape Fear River; thence northwardly, along said line of anchor
piles, about four hundred and seventeen (417) feet more or less to
the Southern line of Xxxxxx Street extended westward; thence
eastward along the said Southern line of Xxxxxx Street (extended
westward) about three hundred and thirty-four (334) feet to an iron
pipe on the bank of the river; thence continuing eastward with the
said Southern line of Xxxxxx Street Six Hundred and Seven (607) feet
more or less to the point of beginning; saving and excepting from
the operation of this instrument a strip of land fifteen (15) feet
wide running along and with the eastern boundary line above
mentioned from Xxxxxx Street Northwardly to Xxxxxx Street and
parallel with Front Street, the same to be forever kept open for use
of the public as an alley way; the same being the western part of
lots 1, 2, 3, 4, 5 and 6 in block 15, according to the official plan
of the City of Wilmington, N. C., and the major part of said block.
Tract No. 3.
An undivided one-half (1/2I) interest in that tract of land
beginning at the Northwesternly corner of Block 16, as same is shown
upon the official plan of the City of Wilmington, North Carolina,
and running thence from said beginning point Southwardly and along
the Westernly boundary line of said Block 16 198 feet; thence
Westwardly and parallel with Xxxxxx Street 66 feet to the Easternly
boundary line of Block IS, according to the said plan of said City;
and running thence Northwardly and along the said Easternly boundary
line of said Block 15 198 feet to the Southernly line of said Block
15 198 feet to the Southernly line of Xxxxxx Street, the
Northeasternly corner of said Block 15, running thence Eastwardly
and along the Southernly line of Xxxxxx Street 66 feet to the
Northwesternly corner of said Block 16, the point of Beginning.
21
Tract No. 4.
An undivided one-half (1/2) interest in the tract of land beginning
at the intersection of the Western line of Front Street with the
Southern line of Xxxxxx Street, and running thence Southwardly along
the Westernline of Front Street One Hundred Ninety-Eight (198) feet;
thence Westwardly and parallel with Xxxxxx Street Three Hundred
Thirty (330) feet to the Eastern line of Surry Street; thence
Northwardly along the &stern line of Surry Street One Hundred
Ninety-Eight (198) feet to the Southern line of Xxxxxx Street;
thence Eastwardly along the Southern line of Xxxxxx Steet Three
Hundred Thirty (330) feet to the point of beginning; the same being
all of Xxxx 0, 0 xxx 0, xx Xxxxx 16, according to the official plan
of the City of Wilmington, North Carolina. Together with all of the
right, title and interest of Cape Fear in and to all streets and
ways in, on, through, over, upon, adjacent to and adjoining said
tract of land.
Tract No. 5.
An undivided one-half (1/2) interest in the tract of land beginning
at the point of intersection of the Western line of Surry Street
with the Southern line of Xxxxxx Street, and running thence
Southwardly along the Western line of Surry Street One Hundred
Ninety-Eight (198) feet; thence Westwardly and parallel with Xxxxxx
Street Twenty-four (24) feet; thence Northwardly and parallel with
Surry Street One Hundred Ninety-eight (198) feet to the Southern
line of Xxxxxx Street; thence Eastwardly along the Southern line of
Xxxxxx Street Twenty-Four (24) feet to the point of beginning; the
same being the Eastern part of Xxxx 0, 0 xxx 0, xx Xxxxx 15,
according to the official plan of the City of Wilmington, North
Carolina. Together with all of the right, title and interest of Cape
Fear in and to all streets and ways in, on, through, over, upon,
adjacent to and adjoining said tract of land.
Tract No. 6.
Beginning at a point where the Northern line of Xxxxxx Street
intersects with the Western line of Front Street, and runs thence
Northwardly with the Western line of Front Street One Hundred and
Ninety-eight (198) feet; thence Westwardly parallel with Xxxxxx
Street Four Hundred and Twenty (420) feet; thence Southwardly
parallel with Front Street One Hundred and Ninety-eight (198) feet
to the Northern line of Xxxxxx Street; thence Eastwardly with the
Northern line of Xxxxxx Street Four Hundred and Twenty (420) feet to
the point of beginning. Being all of lots 4, 5 and 6, in Block 16
and the east ends of lots 4, 5 and 6, in Block 15, according to the
official plan of the said City of Wilmington, North Carolina,
together with all and singular the lands, tenements, easements and
appurtenances thereunto belonging, or in anywise appertaining.
22
Tract No. 7.
An undivided one-half interest in and to that strip of land
approximately 100 feet in width lying between the Harbor line or
channel of the Cape Fear River (being the Western boundary of said
strip) and the line of anchor piles approximately 100 feet east of
said Harbor line (being the Eastern boundary of said strip) and
extending from an extension of the center line of Xxxxxxxxxx Street
(being the Southern boundary of said strip) approximately 1085 feet
to the Northem boundary of the properties of Cape Fear Terminal
Company which is approximately 85 feet north of the Northern line of
Xxxxxx Street as extended; together with an undivided one-half
interest in all properties, improvements, structures and betterments
situated thereon and in the riparian rights in connection therewith;
provided, however, this conveyance is without warranty as to any
portion of said strip which may constitute a part of Xxxxxxxxxx,
Xxxxxx or Xxxxxx Streets, or to any portion of said strip which lies
below the mean high water xxxx of the Cape Fear River.
Tract No. 8.
Beginning at a point in the northern line of Wooster Street, said
point being a nail. in the concrete located south 87 degrees 30
minutes west 110 feet from the intersection of the northern line of
Wooster Street with the Xxxxxx line of Surry Street according to the
official plan of the City of Wilmington, and runs thence north 02
degrees 30 minutes west and parallel with the western line of Surry
Street 132.0 feet to an old fence post; thence south 87 degrees 30
minutes west and parallel with the northern line of Wooster Street
116.5 feet; thence north 02 degrees 30 minutes west and parallel
with the western line of Surry Street 18.0 feet to an iron pipe;
thence south 87 degrees 30 minutes west S29 feet, more or less, to
the eastern harbor line of the Cape Fear River; said point in said
harbor line being 150 feet north of the north line of Wooster Street
measured at right angles; thence southwardly with the harbor line of
the Cape Fear River 150 feet, more or less, to where said harbor
line is intersected by the northern line of Wooster Street extended
westwardly to said harbor line; thence north 87 degrees 30 minutes
east and along the northern line of Wooster Street, portions of
which have now been closed, 679 feet, more or less, to the point of
Beginning.
Together with a 20 foot joint use easement with the adjoining
property owner on the north described as follows:
Beginning at a point in Block 57 of the City of Wilmington that is
located 150 feet northwardly from the northern line of Wooster
Street and 243 feet west of the western line of Surry Street, both
measurements being made at right angles to said street, and runs
thence northwardly and
23
parallel with the western line of Xxxxx Xxxxxx 00 feet; thence
westwardly parallel with the northern line of Wooster Street to the
Cape Fear River; thence southwardly along the Cape Fear River 20
feet, more or less, to a point 150 feet north of the northern line
of Wooster Street, measured at right angles to said street; thence
eastwardly and parallel with the northern line of Wooster Street to
the point of beginning.
2. The aforesaid Option to Purchase shall expire at 5:00 P.M. Eastern Standard
Time on February 28, 1993 or upon prior written notice by Ashland to Union.
If Purchaser exercises its Option to Purchase either Terminal or both and
the Property is divisable, Purchaser will reimburse all costs associated
with the subdivision of the Property
3. This Memorandum of Option to Purchase is prepared for the purpose of
recordation only, and it in no way modifies or otherwise amends the
aforesaid Option to Purchase agreement between the parties.
WITNESSES: UNION OIL COMPANY OF CALIFORNIA
/s/ By:/s/
----------------------------- -----------------------------
/s/ Title:Group Vice President
--------------------------
WITNESSES: ASHLAND CHEMICAL, INC.
/s/ By:/s/
----------------------------- -----------------------------
/s/ Title:Group V.P.
--------------------------
Acknowledgements
This 28th day of February, 1992
/s/
(Notary Seal)
24
Attachment B
REIMBURSABLE COSTS
Unocal will be reimbursed by Ashland for the following costs plus costs for
other necessary activities determined by Unocal, if incurred during the inactive
period following the completion of the activities related to Taking Category B
Out of Service:
BRANCH/PLANT OFFICE
- Drain and evacuate all potable water lines and fill traps with approved
glycol solution.
- Board all exterior windows/doors.
- Drain boiler, clean, dry and load with absorbent material.
- Drain hot water heaters.
- Inspect and maintain secondary containment for fuel oil tank if kept in
service.
WAREHOUSE
- Perform the quarterly fire system inspection per the procedures of Unocal's
Preventive Maintenance Program.
- Service air compressor by spraying preservation oil into the air intake
ports and draining the crankcase. Drain receiver, particulate and
coalescent filters. Remove and discard desiccant.
- Lubricate dock levelers.
- Secure skylights and ceiling fans.
DRUMMING DOCK
- Service drum pumps. Grease each fitting. Change gearbox oil. Drain
pump and coat inside with light oil. Isolate and cap suction and discharge
nozzles. Inspect and clean breather drains on motor control enclosures.
- Remove and store load cells.
- Lubricate dock levelers.
- Service drum vent fan by lubricating the impeller shafts and covering the
inlet.
25
- Secure all valves.
- Service blend tank agitator and motor per Preventive Maintenance
Procedures.
- Remove and store scale batteries.
- Plug stempit drains.
- Inspect and service auto drum fillers. Clean tubes, fittings, seals and
o-rings. Lower xxxxx and clean.
- Drain all eyewash and safety showers.
TRUCK AND RAILCAR RACKS
- Service all pumps. Grease each fitting. Change gearbox oil. Drain pump and
coat inside with light oil. Isolate and cap suction and discharge nozzles.
Inspect and clean breather drains on motor control enclosures.
- Secure all valves.
- Service all meters per Preventive Maintenance Procedure.
- Remove and store drip pans and plug any containment inlets.
- Plug stem pit drains.
TANK FARM
- Secure all valves.
- Isolate tank from associated piping.
- Replace manways with a mesh cover.
- Inspect and clean pressure/vacuum vents and cover with breathable nylon or
similar bags.
- Inspect and clean escapement vents.
- De-energize tank high level alarm system.
- Remove and discard any desiccant in tank vent dryer.
- Remove thermometers and store Plug thermowells.
- Lower swing arm and remove winch handle from cable assembly (marine tanks).
26
- Service pumps. Grease each fitting. Change gearbox oil. Drain pump and
coat inside with light oil. Isolate and cap suction and discharge nozzles.
Inspect and clean breather. drains on motor control enclosures.
- Remove and store 10 feet of ladders and stairs.
- Oil fill land gauges.
TRUCK SCALES
- Remove and store load cells.
- Clean undercarriage and repack with grease.
- Set scale on blocks.
- Plug conduit ends.
OIL/WATER SEPARATOR
- Drain and clean per API 2015. Install lockable covers.
- If NPDES permitting allows, plug inlet and outlets.
GROUNDS
- Police grounds after shutdown.
- Establish grounds maintenance contract.
PERMITS
- Maintain existing permits.
- Procure new permits associated, directly or indirectly with the facility.
MISCELLANEOUS ITEMS
- Establish caretaker/security contract.
- All tanks to be isolated from product lines by double blinds.
- Place all unsecured items in the warehouse.
- Fire system to remain operational. Grease each fitting. Change gearbox oil.
Drain pump and coat inside with light oil. Isolate and cap suction and
discharge nozzles. Inspect and clean breather drains on motor control
enclosures.
- Property security lighting to remain on.
- Quarterly wire system inspections to be performed.
27
- Inspect and service cathodic protection system per Unocal's Preventive
Maintenance procedure.
CONTINUING SERVICES
- Cathodic Protection
The cathodic protection system will be maintained in an operational
condition. Unocal Engineering and Development Department will continue to
conduct the cathodic protection surveys as regularly scheduled.
- Grounds Maintenance
A contract with a lawn care service will be established to maintain the
grounds in a neat and orderly manner. Grass and shrubbery will be cut
during the growing season at least once per month.
- Utilities
Electrical service will be maintained for security lighting, fire, and
cathodic protection. AD other electrical service breakers will be turned
off.
Water service will remain on for the fire protection system. Potable water
will be turned off and applicable lines drained.
Natural gas service for office heating will be discontinued unless weather
conditions dictate otherwise.
- Quarterly Fire System Inspections
The fire protection system will be kept in an operational condition. The
monitoring system win be tied into and monitored full time at the security
service or local sheriff/fire department. A contract with a fire service
company will be prepared to provide for quarterly system inspections.
- Security
A security firm will be contracted to provide daily site inspections. They
will also be responsible for providing access for other service contractors
and for keeping Unocal advised as to the status of the site.
- Stormwater Discharge
Contract to have stormwater sampled and discharged after each rainfall
event as required by the NPDES Permit.
