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EXHIBIT 10.38
ASSET PURCHASE AGREEMENT
between
UNION OIL COMPANY OF CALIFORNIA
and
ASHLAND CHEMICAL, INC.
dated as of
February 14, 1992
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TABLE OF CONTENTS
ARTICLE ONE - CERTAIN DEFINITIONS .......................................... 1
Affiliate ........................................................... 1
Asset Xxxx of Sale .................................................. 1
Assets .............................................................. 1
Assumed Liabilities ................................................. 1
Base Rate ........................................................... 1
Category A Property ................................................. 1
Category B Property ................................................. 1
Chemicals Distribution Business...................................... 1
Chemical Substances ................................................. 3
Claim Notice ........................................................ 3
Closing ............................................................. 3
Closing Date ........................................................ 3
Confidential Information............................................. 3
Consent ............................................................. 3
Contracts ........................................................... 3
Damages ............................................................. 3
Deeds ............................................................... 4
Due Date ............................................................ 4
Effective Time ...................................................... 4
Environmental Claims ................................................ 4
Environmental Cleanup Liability ..................................... 4
Environmental Compliance Costs ...................................... 5
Environmental Laws .................................................. 5
Exact Inventory Value ............................................... 6
Exact Trade Accounts Payable Value .................................. 6
Exact Trade Accounts Receivable Value................................ 6
Indemnified Party ................................................... 6
Indemnifying Party .................................................. 6
Intellectual Property ............................................... 6
Inventory ........................................................... 7
Inventory Xxxx of Sale .............................................. 8
Judgment ............................................................ 8
Kansas City Lease ................................................... 8
Late Payment Rate ................................................... 8
Leased Personal Property ............................................ 8
Leased Real Estate................................................... 8
Legal Requirements .................................................. 8
Liens ............................................................... 9
Material Contracts .................................................. 9
Non-Conforming Inventory ............................................10
Operations ..........................................................10
Options to Purchase Agreements ......................................10
Options to Assume Leases ............................................10
Owned Personal Property .............................................10
Owned Real Estate ...................................................10
Permits .............................................................10
Permitted Encumbrances ..............................................11
Person ..............................................................11
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Proceedings .........................................................11
Proposed Amendment ..................................................11
Real Estate ....................................................... .11
Related Agreements ..................................................11
Release .............................................................12
Retained Assets ....................................... .............12
Retained Liabilities ................................................12
Returns ............................................................ 12
Software License and Assignment..................................... 12
Taking Category B Property Out of Service........................... 12
Taxes ..............................................................13
To Unocal's knowledge............................................... 13
Trade Accounts Payable .............................................13
Trade Accounts Payable Assumption .................................. 13
Trade Accounts Receivable........................................... 13
Trade Accounts Receivable Assignment.................................13
Trademarks ......................................................... 14
Transferred Employee ................................................14
Waste ...............................................................14
Working Capital Balance .............................................14
ARTICLE TWO - CLOSING; TRANSACTIONS; LIMITED ASSUMPTION OF
LIABILITIES.................................................................15
2.1 Closing .....................................................15
2.2 Transactions, Transfers of Assets and Deliveries
of Monies ...................................................15
2.3 Method of Payment ...........................................18
2.4 Limited Assumption of Liabilities............................18
2.5 Allocation of Purchase Price ................................22
2.6 Allocation of Environmental Cleanup
Liabilities..................................................22
ARTICLE THREE - REPRESENTATIONS AND WARRANTIES OF UNOCAL....................26
3.1 Organization.................................................26
3.2 Authority; Enforceability....................................26
3.3 Consents ....................................................26
3.4 No Breach .................................................. 27
3.5 Financial Statements; Liabilities ...........................27
3.6 Title to Property ...........................................28
3.7 Real Estate .................................................29
3.8 This Section intentionally left blank .......................30
3.9 Compliance with Laws ........................................30
3.10 Outstanding Commitments .....................................30
3.11 Employee Matters.............................................30
3.12 Employment Benefits .........................................31
3.13 Actions and Proceedings......................................31
3.14 Employee Relations ..........................................32
3.15 Absence of Certain Changes...................................32
3.16 Brokers ....................................... .............33
3.17 Other Purchaser Liabilities .................................33
3.18 Inventory ...................................................34
3.19 Trade Accounts Payable ......................................34
3.20 Trade Accounts Receivable....................................34
3.21 Customers and Suppliers .....................................34
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3.22 Condition of Certain Assets..................................34
3.23 Tax Matters .................................................34
3.24 No Business Relationship with South Africa...................35
3.25 Permits .....................................................35
3.26 Completeness of Information..................................35
ARTICLE FOUR - REPRESENTATIONS AND WARRANTIES OF PURCHASER .................36
4.1 Organization.................................... ............36
4.2 Authority; Enforceability ................................. 36
4.3 Consents ....................................................36
4.4 No Breach....................................................37
4.5 Actions and Proceedings......................................37
4.6 Brokers......................................................37
4.7 Completeness of information..................................37
ARTICLE FIVE - ACTIONS PRIOR TO CLOSING ....................................39
5.1 Operations and Actions ......................................39
5.2 Casualty Loss; Condemnation; Injunction......................40
5.3 Inspections .................................................41
5.4 Reasonable Efforts...........................................41
5.5 Transfer or Reissuance of Permits............................42
5.6 Amendments to Schedules .....................................42
5.7 Offers of Employment: Transferred Employees..................43
ARTICLE SIX - CONDITIONS PRECEDENT TO OBLIGATIONS OF UNOCAL
AND PURCHASER ..............................................................45
6.1 Conditions Precedent to Obligations of
Purchaser ...................................................45
6.2 Conditions Precedent to Obligations of Unocal ...............47
ARTICLE SEVEN - INDEMNIFICATION ............................................49
7.1 Indemnification by Unocal................................... 49
7.2 Claims Regarding Exposure Before and After the
Effective Time ..............................................52
7.3 Indemnification by Purchaser ................................52
7.4 Method of Asserting Claims, Etc..............................54
7.5 Survival of Representations and Warranties;
Limitation of Liabilities ...................................57
7.6 Right to Cure ...............................................57
7.7 Construction Contracts.......................................58
ARTICLE EIGHT - TERMINATION ................................................59
8.1 Grounds for Termination......................................59
8.2 Effect of Termination........................................60
ARTICLE NINE - ACTIONS AFTER THE CLOSING....................................61
9.1 Employee Benefit Matters.....................................61
9.2 Further Assurances ..........................................64
9.3 Payment of Transfer Taxes; Recording Fees....................65
9.4 Payment of Certain Expenses Due and Payable
After the Effective Time; Prepaid Expenses...................65
9.5 Contracts Not Assigned at Closing ...........................65
9.6 Undisclosed Material Contracts...............................66
9.7 Casualty Repair; Taking Proceeds.............................66
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9.8 Adjustment to Payment by Purchaser...........................67
9.9 Uncollected Trade Accounts Receivable........................70
9.10 Reimbursement for Certain Items .............................70
9.11 Cooperation..................................................70
9.12 Preparation of Returns ......................................72
9.13 Removal of Non-Conforming Inventory and Stored
Waste........................................................73
9.14 Carteret.....................................................73
ARTICLE TEN - MISCELLANEOUS.................................... ............74
10.1 Like Kind Exchange...........................................74
10.2 Publicity....................................................74
10.3 No Shopping .................................................74
10.4 Confidentiality, Nondisclosure and
Noninterference..............................................75
10.5 Costs and Expenses...........................................77
10.6 Notice.......................................................77
10.7 Assignment...................................................78
10.8 Counterparts.................................................79
10.9 Entire Agreement ............................................79
10.10 Headings.....................................................79
10.11 Schedules....................................................79
10.12 Governing Law................................................79
10.13 No Third Party Rights........................................80
10.14 Limitation of Liability......................................80
10.15 Waivers and Amendment........................................80
10.16 Severability ................................................80
10.17 Time Computation ............................................80
ARTICLE ELEVEN - COVENANT NOT TO COMPETE ..................................81
11.1 Introduction ................................................81
11.2 Covenant Not to Compete .....................................81
11.3 Definition of Chemicals Distribution Business................81
11.4 Consideration ...............................................82
11.5 Injunctive Relief............................................82
11.6 Separate Enforceability .....................................83
11.7 Term of Article 11 ..........................................83
ARTICLE TWELVE - COUNTERVAILING PAYMENTS ...................................84
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ASSET PURCHASE AGREEMENT, including all the Exhibits and Schedules referred to
herein (this "Agreement"), dated as of February 14, 1992, made between UNION
OIL COMPANY OF CALIFORNIA dba Unocal ("Unocal"), a California corporation, and
ASHLAND CHEMICAL, INC. ("Purchaser"), an Ohio corporation.
WHEREAS, pursuant to this Agreement, Purchaser shall purchase Unocal's
Chemicals Distribution Business, including Unocal's interest in the Assets and
Inventory.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, agreements and undertakings contained or referred to in this
Agreement, the parties hereby agree as follows:
ARTICLE ONE - CERTAIN DEFINITIONS
Capitalized terms used in this Agreement are used as defined in this Article One
or elsewhere in this Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with, such
Person. For purposes of this definition, "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of voting
securities or otherwise. Irrespective of this definition or any other
definition, the term "Affiliate" does not include The UNO-VEN Company.
"Asset Xxxx of Sale" shall mean the general xxxx of sale from Unocal to
Purchaser conveying Unocal's interest in the Assets, substantially in the form
of Exhibit A.
"Assets" shall mean all tangible and intangible assets used in or related to
the Chemicals Distribution Business (except the Retained Assets) which are
described in Exhibit B.
"Assumed Liabilities" shall have the meaning specified in Section 24(b).
"Base Rate" shall mean the lesser of ten percent (10%) per annum and the maximum
rate of interest permitted by applicable law.
"Category A Property" shall mean that Real Estate specified as Category A on
Schedule 3.7(a).
"Category B Property" shall mean that Real Estate specified as Category B on
Schedule 3.7(a).
"Chemicals Distribution Business" shall mean all of the business activities
carried on by Unocal up to the date of Closing under the
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name "Unocal Chemicals Distribution," namely the Assets, the Operations, the
marketing and sale of:
(i) any chemicals, hydrocarbon solvents, hydrocarbon solvent blends,
chemical blends, chemical/hydrocarbon blends, and
(ii) hydrocarbon solvents or hydrocarbon solvent blends predominantly
shipped in less than a full tank truck load; and
(iii) hydrocarbon solvents in full combination tank truck loads to a class
of trade which has predominantly purchased in mixed hydrocarbon
solvent and chemical tank truck loads;
but specifically excluding Unocal's marketing and sale of:
(i) hydrocarbon solvents manufactured at or shipped from the UNO-VEN
Refinery or from tankage in the Chicago area historically associated with
said Refinery, or the Toledo terminal, or the Catlettsburg Refinery, or
manufactured at and shipped from any Unocal refinery, and in at least a
full tank truck load, which is defined as one or more hydrocarbon
solvents, in combination or blended, comprising a full load, and delivered
to one destination;
(ii) hydrocarbon solvents which Unocal purchases to offset shortfalls
from production at the UNO-VEN refinery and resells in a single product,
in at least a full tank truck load delivered to one destination;
(iii) hydrocarbon solvents which Unocal exchanges for delivery into
tanks of resellers or distributors in a single product, in at least a full
tank truck load delivered to one destination;
(iv) hydrocarbon solvents which Unocal purchases or exchanges and
resells in the same manner and to the same class of trade as historically,
and in at least a full tank truck load, which is defined as one or more
hydrocarbon solvents, in combination or blended with hydrocarbon solvents
produced at the UNO-VEN Refinery or any Unocal refinery, comprising a full
load, and delivered to one destination;
(v) hydrocarbon solvents for distributor pickups, including Ashland
Chemical, at the UNO-VEN Refinery and Toledo terminal; and
(vi) provided that minor additives of no more than one percent may
be blended with such hydrocarbon solvents or hydrocarbon solvent blends.
As used throughout this definition, "full tank truck load" shall mean those
normal over-the-road bulk hydrocarbon transport vehicles having a minimum
quantity of 80% of shell capacity in the case of
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aromatic solvents and 90% of shell capacity in the case of aliphatic solvents.
In the case of a combination load, each compartment must be utilized and the
aggregate amount must be not less than 80% of shell capacity.
"Chemical Substances" shall mean any chemical substance, including, but not
limited to, any sort of pollutants; contaminants; chemicals; raw materials;
intermediates; products; industrial, solid, toxic or hazardous substances,
materials, or wastes; or petroleum products, including crude oil or any
component thereof.
"Claim Notice" shall have the meaning specified in Section 7.4(a).
"Closing" shall have the meaning specified in Section 2.1.
"Closing Date" shall have the meaning specified in Section 2.1.
"Confidential Information" shall have the meaning specified in Section 10.4(a).
"Consent" shall have the meaning specified in Section 3.3.
"Contracts" shall mean any and all oral or written contracts, agreements,
franchises, warranties, understandings, arrangements, leases, licenses,
registrations, authorizations, rights of way, mortgages, bonds, notes and other
instruments and obligations and interests therein or rights thereunder,
excluding any Permits.
"Damages" shall mean any and all obligations, liabilities, damages, penalties,
deficiencies, losses, judgments, settlements, costs and expenses (including, but
not limited to, costs and expenses reasonably incurred in connection with a
defense, performing obligations, interest, bonding and appellate costs and
attorneys', accountants', engineers', consultants' and investigators' reasonable
fees and disbursements), and including interest on such Damages at
(i) the Base Rate beginning thirty (30) days after the date on which the
Indemnified Party makes a payment in respect of a claim or demand asserted
by a third party against the Indemnified Party for which the Indemnified
Party is entitled to indemnification hereunder or
(ii) the Late Payment Rate on the date a Judgment is entered in favor of
the Indemnified Party, if such claim does not arise out of a claim or
demand asserted by a third party against the Indemnified Party.
Irrespective of any other term in this Agreement or Related Agreements' damages
do not include any special, indirect or consequential damages, including loss of
profits or revenue, business interruption or any other similar losses.
Furthermore, Unocal's liability to Purchaser for any Damages or Retained
Liabilities directly or indirectly related to this
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Agreement regardless of whether Unocal is alleged to be negligent actively,
passively or not at all, including but not limited to, any Related Agreements or
any Material Contracts, except for Damages related to liability to Purchaser or
to third parties to the extent due to the sole negligence or willful misconduct
of Unocal, Environmental Cleanup Liability, Claims Regarding Exposure Before and
After the Effective Time (Section 7.2), Article Eleven, or Article Twelve
off-site transportation, storage, disposal or treatment of any Chemical
Substances by or on behalf of Unocal and its Affiliates, and Sections 2.2(b),
5.2, 9.1, 9.3, 9.4, 9.7, 9.8, 9.9, 9.10, 9.12 and 9.13 shall not exceed seven
million five hundred thousand dollars ($7,500,000). Notwithstanding any other
language in this Agreement, Unocal's obligations to Purchaser for Environmental
Compliance Costs incurred after the Effective Time and including costs for work
performed or paid by or on behalf of Unocal and costs of Purchaser indemnified
by or on behalf of Unocal shall not exceed five million dollars ($5,000,000) in
the aggregate and Environmental Compliance Costs for which Unocal is obligated
to reimburse Purchaser shall be included as part of the overall seven million
five hundred thousand dollar limit on Damages and indemnifications from Unocal
to Purchaser.
"Deeds" shall mean the respective form of deeds substantially as set forth in
Exhibit N which may be amended to conform to the title insurers requirements and
applicable law.
"Due Date" shall mean the original date specified on the invoice by which
payment is due.
"Effective Time" shall mean 11:59 P.M. Eastern Standard Time on the Closing
Date.
"Environmental Claims" shall mean any claim made, asserted or prosecuted by or
on behalf of any third party (whether based on negligent acts or omissions,
statutory liability, or strict liability without fault or otherwise), including,
without limitation, any governmental entity, to the extent relating to the
Assets or Operations and resulting from the violation of or an allegation which
may give rise to liability under any Environmental Laws. An Environmental Claim
shall not include any cost, expense or liability that comes within the
definition of an Environmental Compliance Cost or an Environmental Cleanup
Liability; provided, however, the Environmental Claims shall not include any
claim for personal injury or illness by any individual, whether an employee,
nonemployee or otherwise, or their respective legal representatives, heirs,
beneficiaries and estates. Environmental Claims includes any Damages associated
with resolving such claims.
"Environmental Cleanup Liability" shall mean any reasonable cost or expense of
any nature whatsoever required by any third party, including, but not limited
to, any federal, state or local administrative or governmental authority, to be
undertaken under or pursuant to any Environmental Laws to identify, contain,
remove, remedy, respond to, clean up, or xxxxx any Release of Chemical
Substances, or other contamination of surface water, groundwater,
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land surface or subsurface strata, whether on-site or off-site, arising from
activities involving the Assets or from the Operations.
For purposes of this definition, the requirements of any Workplan as defined in
Section 2.6(c), the requirements of any final order issued by any such agency,
or the decision of any such agency indicating no cleanup is required, shall be
presumed to define the requirements of Environmental Laws within one year after
the transfer of title or assumption of lease but not to exceed three years from
the Effective Time for a Category B Property, subject to the right of Unocal to
rebut the presumption. The above presumption shall apply only to an initial
Workplan, order or applicable agency decision and not to any amendment,
supplement, revision of same. Unocal may rebut the presumption by reference to
statutory law, legislative history, regulations, the administrative record of
regulations, orders, rulings, policy, guidance, announcements, past present and
future practice, the statements and correspondence of agency officials and other
knowledgeable persons, and/or other credible information without regard to
formal rules of evidence. Unocal shall notify Purchaser in writing of its intent
to rebut the presumption described in this Section within one year of the
approval of the Workplan, or issuance of the order or applicable agency decision
which created the presumption, or of the filing of a Claim Notice by Purchaser
with respect thereto, whichever is latest.
"Environmental Compliance Costs" shall mean any reasonable cost or expense of
any nature whatsoever reasonably necessary to enable the Chemicals Distribution
Business to comply with all applicable federal and state occupational safety and
health laws in effect and requiring the Assets and Operations to be in
compliance as of the Effective Time and Environmental Laws, regulating the
manufacture, generation, formulation, processing, permitting, registration,
reporting, record keeping, planning, training, labelling, distribution, use,
treatment, handling, storage, disposal, or transportation, construction,
operation, use, physical structure, condition, removal, or demolition of or with
respect to any Chemical Substances or of any building, facility, equipment,
fixture or other structure containing a Chemical Substance, including, without
limitation, those Legal Requirements relating to the managements use, storage,
disposal, clean-up or removal of asbestos, asbestos-containing materials,
polychlorinated biphenyls or any other Chemical Substances, except that an
Environmental Compliance Cost shall not include any cost, expense or liability
that comes within the definition of an Environmental Cleanup Liability.
"Environmental Laws" shall include any Legal Requirement applicable to the
Assets or Operations herein, effective:
(a) as of the Effective Time, for an Environmental Compliance Cost, or
an Environmental Claim; or
(b) for an Environmental Cleanup Liability,
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(i) within one year of the Effective Time for a Category A
Property, and
(ii) within one (1) year of transfer of title or assumption of
lease, but not to exceed three (3) years from the Effective
Time, for a Category B Property,
that relate to pollution or protection or cleanup of the environment
(including, but not limited to, ambient air, surface water, groundwater, land
surface or subsurface strata), including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended
("RCRA"), the Oil Pollution Act of 1990 ("OPA"), and other such Lega1
Requirements relating to:
(a) Release, containment, removal, remediation, response, cleanup or
abatement of any sort of Chemical Substances;
(b) the manufacture, generation, formulation, processing, labelling,
distribution, use, treatment, handling, storage, disposal or
transportation of any Chemical Substances;
(c) the physical structure or condition of a building, facility, fixture
or other structure, including, without limitation, those relating to
the management, use, storage, disposal, clean-up or removal of
asbestos, asbestos-containing materials, polychlorinated biphenyls or
any other Chemical Substance; and
(d) federal and state occupational safety and health laws.
"Exact Inventory Value" shall have the meaning specified in Section 9.8(a)(i).
"Exact Trade Accounts Payable Value" shall have the meaning specified in Section
9.8(a) (iii).
"Exact Trade Accounts Receivable Value" shall have the meaning specified in
Section 9.8(a)(ii).
"Indemnified Party" shall have the meaning specified in Section 7.4.
"Indemnifying Party" shall have the meaning specified in Section 7.4.
"Intellectual Property" shall mean the Trademarks and any and all patents,
patent applications, copyrights, copyright registrations, applications for the
registration of copy-rights, technical information, industrial know-how,
technology and trade secrets, and the goodwill associated with any of the
foregoing, used commercially as of the Effective Time by Unocal or its
Affiliates solely in connection with the Operations.
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"Inventory" shall mean Unocal's store of non-obsolete and merchantable
finished goods and raw materials of the Operations held on the premises, or
en route to the premises of the Assets for purposes of resale, as reflected
on Schedule 3.18, plus additions thereto and deletions therefrom, in the
ordinary course of business, from the date thereof of Schedule 3.18 to the
Closing Date. As used in this definition, the word "non-obsolete" shall mean
Products with respect to which Unocal has in the normal course of the Operations
made deliveries to customers within the three month period October through
December 1991, and with respect to which Unocal has no knowledge as of the
Closing Date that continuing sales of any such product will be substantially
decreased or halted. As used in this definition, the word "merchantable"
shall describe finished goods and raw materials which:
(a) pass without objection in the trade under the contract description;
(b) in the case of the fungible goods, are of fair average quality
within the description;
(c) are fit for the ordinary purposes for which such goods are used;
(d) run of even kind, quality and quantity within each unit and among
all units involved;
(e) are adequately contained, packaged, and labeled; and
(f) conform to the promises or affirmations of fact made on the
container or label, if any.
Notwithstanding anything herein to the contrary, "Inventory" shall not include,
except as set forth on Schedule 3.18;
(a) any Unocal product which has been manufactured, blended, amalgamated
or otherwise produced from "line flush", "drips", "heels," or
similar odd lots of other products, and sold or inventoried as
liquifier; or
(b) amounts of finished goods and raw materials on a
facility-by-facility basis which exceed sales of the respective
product within the last quarter of the calendar year 1991, except
those products
(i) which were purchased in quantities that exceed an average
three-months of sales to take advantage of favorable prices or
economics, and the inventory level thereof does not exceed a three
month sales forecast,
(ii) which are used in blending and are only available for
purchase from suppliers in minimum quantities which exceed average
three-months of sales,
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(iii) which are new products inventoried for the first time in the
last six months of 1991, and
(iv) where Unocal can demonstrate that the time interval, between
sales of the product, exceeds three months; or
(c) product in opened, supplier-packaged or partially filled
containers.
"Inventory Xxxx of Sale" shall mean the general xxxx of sale from Unocal to
Purchaser conveying all of the Inventory substantially in the form of Exhibit
C.
"Judgment" shall mean any and all final and non-appealable judgments, orders,
directives, rulings, decisions, restraining orders, injunctions, decrees or
awards of any federal, state, local or foreign court, arbitrator or
administrative or governmental authority, bureau or agency.
"Kansas City Lease" shall mean a lease between Unocal as lessor and P9rchaser as
lessee, substantially in the form of Exhibit D.
"Late Payment Rate" shall mean the lesser of fifteen percent (15%) per annum
and the maximum rate of interest permitted by applicable
"Leased Personal Property" shall mean all Assets that are personal property
which Unocal does not own but as to which the Chemicals Distribution Business
has the benefit, use, enjoyment or possession under a lease or license.
"Leased Real Estate" shall mean Real Estate leased by Unocal and identified on
Schedule 3.7(a) as Leased Real Estate.
"Legal Requirements" shall mean any and all applicable
(i) federal, state, local and foreign laws (statutory, judicial or
otherwise), rules, ordinances and regulations,
(ii) Judgments,
(iii) Contracts with any federal, state, local administrative or
governmental authority, bureau or agency relating to compliance with
matters described in (i) or (ii) above, and
(iv) Permits;
as any of the foregoing matters described in (i), (ii), (iii) or (iv) may have
been waived, amended, varied or otherwise modified.
As used in the definition of Environmental Law as that term is used in the
definition of Environmental Compliance Cost, a Legal Requirement is effective on
the date it mandates a specific
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requirement to be implemented or completed by that date. As used in the
definition of Environmental Law as that term is used in the definition of
Environmental Cleanup Liability, a Legal Requirement includes but is not
limited to a cleanup standard; provided however, that such Legal Requirement
is defined and binding within one year from the Effective Time.
"Liens" shall mean any and all liens, mortgages, charges, pledges, Security
interests, burdens or other claims, encumbrances of any nature whatsoever,
including, but not limited to, such as may arise under any Contracts or
Judgments.
"Material Contracts" shall mean all Contracts that are listed on Schedule
2.4(b)(v)(A) and that are material and pertain to the Chemical Distribution
Business, including, but not limited to, all Contracts described below to
which Unocal is a party that relate primarily to the Assets or Operations:
(i) all Contracts which have a remaining term of more than one year,
cannot be terminated by Unocal without cost on ninety (90) days'
written notice or less and the terms of which provide for future
payment or receipt by Unocal of an annual amount in excess of
$10,000 per contract;
(ii) all Contracts under which Unocal is committed to pay for or to
provide goods or services with an annual value of more than $10,000
per contract;
(iii) all Contracts between or among Unocal and any of its Affiliates;
(iv) all confidentiality and non-competition Contracts, other than any
such Contracts included in a license of Intellectual Property
included under clause (viii) immediately below, which restrict the
Operations;
(v) all employment Contracts other than those for normal
employer/employee relationships which are terminable at will without
payments other than normal severance pay pursuant to the employer's
severance policy or pursuant to applicable Legal Requirements;
(vi) all partnership, joint venture or profit sharing Contracts, but
excluding any contracts with The UNO-VEN Company;
(vii) all Contracts which relate to borrowing money or providing
guarantees of indebtedness for monies borrowed by any other Person;
(viii)all licenses of Intellectual Property other than those licenses
that are immaterial, individually or in the aggregate, to the
respective Assets and/or Operations;
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(ix) all leases, licenses, rights of way or similar arrangements in
respect of the use of any real estate, other than such as are immaterial,
individually or in the aggregate, to the respective Assets and/or
Operations;
(x) all sales agency, distributorship and consultant agreements or
agreements providing for the services of an independent contractor to
which Unocal is a party or by which it is bound;
(xi) each agreement not otherwise listed herein to which Unocal is a
party or which has, or may have, a material effect on the Assets or
Operations (excluding any Contract with the UNO-VEN Company) other than
such as are immaterial, individually or in the aggregate, to the
respective Assets and/or Operations; and
(xii) contracts for the supply of products to the Chemicals Distribution
Business, excluding contracts with the UNO-VEN Company and contracts or
portions thereof which are subject to restrictions.
"Non-Conforming Inventory" shall mean all finished goods or raw materials not
meeting the definition of Inventory.
"Operations" shall mean the Chemicals Distribution Business which includes the
business and activities conducted by Unocal in connection with any of the Assets
prior to the Effective Time.
"Options to Purchase Agreements" shall mean agreements, substantially in the
form of Exhibit F, between Purchaser and Unocal for Category B Property.
"Options to Assume Leases" shall mean agreements, substantially in the form of
Exhibit G, between Purchaser and Unocal for Category B Property.
"Owned Personal Property" shall mean all Assets that are personal property,
other than Trade Accounts Receivable which Unocal owns which the Chemicals
Distribution Business has the benefit, use, enjoyment and possession thereof.
"Owned Real Estate" shall mean Real Estate owned by Unocal or an Affiliate and
identified on Schedule 3.7(a) as Owned Real Estate.
"Permits" shall mean any and all permits, authorizations, approvals,
registrations, rights of way, orders, waivers, variances or other licenses
issued or granted by any federal, state or local administrative or governmental
authority, bureau or agency which are held by Unocal or any of its Affiliates
(i) under any Legal Requirement, including, but not limited to,
Environmental Laws, or
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(ii) under, or pursuant to, any Judgments or any Contracts with any such
administrative or governmental authority, bureau or agency relating
in each case to compliance with any Legal Requirement.
"Permitted Encumbrances" shall apply only to those Assets owned by Unocal and
its Affiliates and shall mean any Liens that
(i) are defined in Section 3.6 as a Permitted Encumbrance,
(ii) are immaterial, individually or in the aggregate, to the respective
Assets and/or Operations, or
(iii) by reason of ad valorem property taxes or assessments payable but
not yet due.
"Person" shall mean any individual, partnership, joint venture, firm ,
corporation, association, trust or other entity or any government or political
subdivision or any agency, department or instrumentality thereof.
"Proceedings" shall have the meaning specified in Section 3.13(a) and 4.5 as to
Unocal and Purchaser respectively.
"Proposed Amendment" shall have the meaning specified in Section 5.6.
"Real Estate" shall mean Owned Real Estate and Leased Real Estate that are not
Retained Assets. All Real Estate is divided into Category A Property or
Category B Property and so identified on Schedule 3.7(a).
"Related Agreements" shall mean this Agreement and:
(i) the Inventory Xxxx of Sale (Exhibit (C);
(ii) the Kansas City Lease (Exhibit (D);
(iii) the Software License Agreement (Exhibit E);
(iv) the Option to Purchase Agreements (Exhibit F);
(v) the Option to Assume Leases (Exhibit G)
(vi) the Trade Accounts Payable Assumption (Exhibit H)
(vii) the Trade Accounts Receivable Assignment (Exhibit I);
(viii) the Operating Agreement (Exhibit J);
(ix) the Hydrocarbon Supply Agreement (Exhibit K);
(x) the Assignment and Assumption of Leases (Exhibit L);
(xi) the Bridging Services Agreement (Exhibit R);
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(xii) the Carteret Operating Agreement, (Exhibit S);
(xiii) the Clark, New Jersey Sublease (Exhibit U);
and other agreements between Unocal and Purchaser referenced herein or
attached hereto as Exhibits.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing of
any Chemical Substance into the environment of any kind whatsoever (including
also the abandonment or discarding of barrels, containers, tanks or
other receptacles containing or previously containing any Chemical Substance).
"Retained Assets" shall mean all properties (including any Contracts), other
than the Assets, owned or held by Unocal or any of its Affiliates, whether or
not in connection with or related to the operations, including, without
limitation,
(i) all cash,
(ii) all rights of Unocal and any of its Affiliates under this Agreement,
(iii) the agreements and instruments delivered to Unocal or any of its
Affiliates pursuant to this Agreement,
(iv) any and all Trademarks except to the extent rights in the Trademarks
are granted to Purchaser pursuant to this Agreement, and
(v) other assets specifically set forth on Schedule 1; provided, however,
that no tangible property situated on any Real Estate shall be a Retained
Asset unless it is listed as a Retained Asset on Schedule 1.
"Retained Liabilities" shall have the meaning specified in Section 2.4(a).
"Returns" shall mean all federal, state, local or other governmental income and
franchise tax returns and all sales, use, payroll, withholding and other tax
returns.
"Software License and Assignment" means the permissible assignment by Unocal
to Purchaser of software purchased from a third party and nonexclusive licenses
to use Unocal's proprietary software, substantially in the form of Exhibit E.
"Taking Category B Property Out of Service" shall include but not be limited to
the following:
(i) Lawfully and safely leaving Category B Property in place in accordance
with Unocal's shut-down procedures substantially in the form of Exhibit M
and all Environmental
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Laws and all Legal Requirements for health and safety then in effect;
(ii) disposing of any Chemical Substance or Waste arising out of or
related to the activities under (i) above, in accordance with all
Environmental Laws in effect at the time of such disposal.
"Taxes" shall mean all federal, state and local taxes, assessments, withholdings
or other similar governmental charges and any interest and penalties thereon.
"To Unocal's knowledge" shall mean to the actual knowledge of managerial
personnel employed by Unocal or such knowledge as any such person would
reasonably be expected to have by reason of his or her position with Unocal in
the exercise of his or her normal duties in the ordinary course of business.
"Trade Accounts Payable" shall mean all of Unocal's liabilities and obligations
which were incurred in the ordinary course of the operations prior to the
Closing Date for Inventory, raw materials, operating supplies, utilities, and
services (other than employment), taken from the books of Unocal as of the close
of business on the Closing Date and which relate to Assets or operations
including sales taxes listed on the invoices. In no event shall Trade Accounts
Payable include Taxes payable by Unocal, or intracompany amounts payable by
Unocal, or amounts payable to an Affiliate.
"Trade Accounts Payable Assumption" shall mean the assumption document whereby
Purchaser assumes the Trade Accounts Payable substantially in the form of
Exhibit H.
"Trade Accounts Receivable" shall mean all of Unocal's accounts receivable from
third parties which arose in the ordinary course of the Operations prior to the
Closing Date, and taken from the books of Unocal as of the close of business on
the Closing Date and which relate to Assets or Operations but shall not include
accounts receivable in any of the following categories:
(i) Those which have been referred to a collection agency;
(ii) Receivables from customers involved in bankruptcy, insolvency or
similar proceedings;
(ii) Receivables subject to disputes, claims or active litigation; or
(iv) Receivables then outstanding more than 45 days past their due date.
"Trade Accounts Receivable Assignment" shall mean the assignment document from
Unocal to Purchaser conveying the Trade Accounts Receivable substantially in the
form of Exhibit I.
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"Trademarks" shall mean the registered product marks LACTOL, NAPHTOLITE,
TEXTILE, and RETARDSOL that Purchaser shall be permitted to use only on
commercial literature, written quotes, purchase orders, bills of lading or
invoices if and when the product being used or sold is a Unocal product.
"Transferred Employee" shall mean any employee of Unocal who becomes an employee
of Purchaser as set forth in Section 5.7(b).
"Waste" shall mean any Chemical Substance subject to regulation as under any
Environmental Laws, including, without limitation, solid waste, hazardous waste,
residual waste and industrial waste.
"Working Capital Balance" shall mean the difference between sixty one million
dollars ($61,000,000) and the total of the Exact Inventory Value and Exact Trade
Accounts Receivable Value less the Exact Trade Accounts Payable Value.
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ARTICLE TWO - CLOSING; TRANSACTIONS;
LIMITED ASSUMPTION OF LIABILITIES
2.1 Closing
The closing of the transactions provided for in this Agreement (the "Closing")
shall be held on February 28, 1992 at Schaumburg, Illinois or such other date
and place as the parties hereto may designate by mutual consent (the "Closing
Date").
2.2 Transactions Transfers of Assets and Deliveries of Monies
Subject to the prior or simultaneous:
(i) satisfaction or waiver of all the conditions precedent specified
in Section 6.1 in the case of Purchaser; and
(ii) satisfaction or waiver of all the conditions precedent specified
in Section 6.2 in the case of Unocal,
the following shall take place:
(a) The Closing. The purchase and sale of all the Assets, except the
Category B Properties listed on Schedule 3.7(a), shall be consummated on
the Closing Date and shall be effective as of the Effective Time. The
following transactions shall be deemed to take place simultaneously:
(i) Purchaser shall deliver to Unocal eighty five million
dollars ($85,000,000) on the Closing Date as payment for the
Chemicals Distribution Business, including the Assets, and
Operations, subject to adjustment as provided for in Section 9;
(ii) Unocal shall use its best efforts to deliver duly executed
Deeds for the Owned Real Estate at Conshohocken, PA; Dallas, TX;
Fairfield, CA; Houston, TX; Lemont, IL; Nashville, TN; and St.
Xxxx, MN.;
(iii) If, despite Unocal's best effort, a Deed for any of the
property cannot be delivered on the Closing Date, Unocal shall,
until the transfer of title is accomplished by transfer of a Deed,
operate the affected property pursuant to the same terms
substantially in the form of Exhibit S;
(iv) Unocal will use its best efforts to secure approval from
the State of New Jersey Department of Environmental Protection of
an Administrative Consent Order, allowing Unocal to transfer title
to the Carteret, New Jersey facility and if successful, Unoca1
shall deliver a Deed for that property at
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Closing. In the event that the delivery of a duly executed Deed
for the Carteret, New Jersey property is delayed past Closing Date
by applicable laws or regulation, Unocal will continue to use its
best efforts to secure approval from New Jersey to transfer the
title to the Carteret, New Jersey property to Purchaser. In the
interim period between Closing and delivery of a Deed following
approval from the applicable authorities to transfer title, Unocal
shall operate the Carteret, New Jersey facility pursuant to the
terms of the Carteret Operating Agreement substantially in the
form of Exhibit S.
(iv) Unocal shall deliver duly executed documents transferring
title to all owned automobiles, trucks and any other personal
property where title is evidenced by registry with a governmental
body.
(v) Unocal shall deliver a duly executed Asset Xxxx of Sale
substantially in the form of Exhibit A.
(vi) The parties shall execute duplicate originals of an
Assignment and Assumption of Leases in the form of Exhibit L for
Leased Personal Property that is to be assigned or assumed at the
Effective Time.
(vii) Unocal shall execute and deliver to Purchaser duly executed
Trade Accounts Receivable Assignment in the form of Exhibit I.
(viii) Purchaser shall deliver a duly executed Trade Accounts
Payable Assumption in the form of Exhibit H.
(ix) Unocal shall execute and deliver to Purchaser such other
documents as reasonably requested by Purchaser to vest title in
Purchaser of all Assets other than those described in (ii) above
owned by Unocal and to assign to Purchaser all of Unocal's rights
in Assets leased and assignable by Unocal, all of aforesaid
pursuant to the provisions of this Agreement.
(x) The parties shall execute and deliver no less than two
duplicate originals of the Related Agreements and other agreements
referenced herein or attached hereto as Exhibits to be executed by
the parties at the closing.
(xi) Unocal shall execute and deliver to Purchaser a Certificate
of No Additional Liens and Encumbrances substantially in the form
of Exhibit T.
(xii) Unocal shall execute and deliver to Purchaser, Options to
Purchase for all Owned Real Property which appear on Schedule
3.7(a) and which Unocal has not
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delivered a Deed pursuant to (ii) above substantially in the form
of Exhibit F.
(b) Payments After Closing
(i) Unocal shall deliver to Purchaser:
(A) six hundred thousand ($600,000) on the twelfth month
anniversary date of the Closing Date; and
(B) five hundred thousand ($500,000) on the
twenty-fourth month anniversary date of the Closing
Date; and
(C) four hundred thousand ($400,000) on the thirty-sixth
month anniversary date of the Closing Date; and
(D) three hundred thousand ($300,000) on the
forty-eighth month anniversary date of the Closing
Date; and
(E) two hundred thousand ($200,000) on the sixtieth
month anniversary date of the Closing Date.
The Base Rate will apply to any payment pursuant to this Section
2.2(b) that is made late.
(c) Transfer of Category B Property. With respect to Category B
Property, Purchaser may from time-to-time within
(i) three years from the Closing Date for each Distribution
Center except for Tampa, FL;
(ii) two years for the Distribution Center and terminal at
Tampa, Florida; and
(iii) one year for all other terminals listed on Schedule 3.7(a),
elect to take title to any or all sites of the Owned Real Estate in
accordance with the Option to Purchase Agreements, or assume the lease of
Leased Real Estate in accordance with the Option to Assume Leases.
Forthwith upon receipt of any such notice, in the case of Owned Real
Estate, Unocal shall convey the title to Purchaser by the form of Deed for
that property or in the case of Leased Real Estate, Unocal and Purchaser
shall enter into an Assignment and Assumption of Lease for that property.
All of the provisions respecting the transfer of title and assignment of
leases of Category A Property shall apply to any such transfer of
interests of Category B Property.
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2.3 Method of Payment
All amounts to be paid or transferred to any Person shall be paid in immediately
available funds by wire transfer to a U.S. bank account designated by such
Person.
2.4 Limited Assumption of Liabilities
(a) "Retained Liabilities" shall mean, to the extent not assumed by
Purchaser elsewhere in this Agreement, any and all liabilities (whether
known, unknown, accrued, absolute, contingent or otherwise) that arose,
existed or were incurred at or before the Effective Time, regardless of
when payable. For the purposes of the immediately preceding sentence, any
obligations or liabilities (whether under a Contract, at common law or
otherwise) or claims or causes of action that arise out of a transaction
or occurrence shall be deemed to have been incurred at the time of such
transaction or occurrence, irrespective of the date or time on which such
obligation, liability, claim or cause of action may be asserted.
(b) Upon the condition that the Closing shall occur, Purchaser hereby
assumes and agrees to discharge, effective at and after the Effective
Time, any and all liabilities and obligations (the "Assumed Liabilities")
of Unocal:
(i) under any contract or Material Contracts which are related
to the Operations;
(ii) for Environmental Compliance Costs, Environmental Claims or
Environmental Cleanup Liability resulting from the Assets or
Operations (but specifically excluding any such liability to the
extent directly resulting from the off-site use, treatment,
handling, storage, disposal or transportation of any Chemical
Substance),
(A) if such costs, claims or liability are not
identified by a Claim Notice within one (1) year after the
actual transfer of title or assumption of lease for the
respective Real Estate in Category A Property or Category B
Property, not to exceed three years from the Effective
Time, subject to Section 2.6, Allocation of Environmental
Cleanup Liabilities,
(B) with respect to Environmental Compliance Costs for
both Category A and B Properties, for which a Claim Notice
is not delivered on or prior to one year after the
Effective Time,
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(iii) reimbursement to Unocal of all Costs of Taking Category B
Property Out of Service as set forth on Exhibit M, except for the
terminals at Tampa, FL, Wilmington, NC and East Providence, RI;
(iv) subject to the terms of Section 7.2, for any personal
injury claims of Purchaser's employees or any other persons
arising out of or related to their presence on the premises of
Purchaser arising out of the use of the Assets or conduct of
Operations or exposure to Chemical Substances after the Closing
Date except for claims resulting from Unocal's negligent acts or
omissions committed after transfer of title, provided, however,
that the mere presence of Chemical Substances on the premises
shall not be considered negligence for the purpose of this
sub-section; and provided, further, that for any such claim based
upon actual, threatened or alleged personal injury from exposure
to a Chemical Substance or workplace conditions after the Closing
Date, the provisions of Section 7.2 shall prevail and the date of
transfer of title shall govern the division of such liability for
any exposure after that date;
(v) that Purchaser is obligated to assume or discharge pursuant
to Section 2.2(a)(vii) for Trade Accounts Payable, Section 9.1 for
employee benefits, Section 9.3 for transfer taxes or Section 9.4
for certain other expenses;
(vi) provided that, except in accordance with any Option to
Purchase Agreement, in no event shall the Assumed Liabilities
include any liability or obligation of Unocal or its Affiliates:
(A) subject to Section 9.6, under any Material Contracts
in existence prior to or at the Effective Time which is not
listed on Schedule 2.4(b)(v)(A);
(B) except as specifically provided in Article Nine, for
salary, wages, incentive payments, benefits, supplies or
overhead for any current or former employees of Unocal,
including, but not limited to, Transferred Employees;
(C) for any federal, state or local taxes, levies or
imposts based upon the income of Unocal or any of its
Affiliates or for any federal, state or local taxes, levies
or imposts attributable to any time prior to the Effective
Time;
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(D) incurred in connection with the negotiation,
preparation, execution or closing of this Agreement or the
transactions provided for hereby including any broker's or
finder's fee or similar compensation;
(E) except as otherwise may be provided in this
Agreement or any Related Agreement, to Unocal or any of
Unocal's Affiliates;
(F) except as provided in 2.4 (b)(ii) and (iii), for any
liability or obligation arising from existing litigation or
litigation arising out of, or relating to an occurrence or
event happening before the Closing Date to the extent that
Purchaser has not contributed to such liability or
obligation;
(G) except as provided in 2.4(b)(ii) and (iii), for any
liability or obligation for death, personal injury, or
illness, or other injury to persons (including employees of
Unocal), property damage, losses, deprivation of rights
(whether based on statute, common law, negligence, breach
of warranty, strict liability or any other theory) caused
by or resulting from
(1) any activity of the Assets or Operations
prior to the Closing Date, or
(2) any defect or claimed defect in or with
respect to any products sold, provided or delivered
by Unocal prior to the Closing Date,
to the extent that Purchaser has not contributed to such
liability or obligation;
(H) for premiums, deposits, or other payments with
respect to coverage under all property and casualty
insurance, medical, dental, vision, accident, life,
disability and any other group benefit insurance
arrangement relating to periods prior to the Effective
Time;
(I) for any liability or obligation related to,
associated with, or arising out of any Unocal employee
benefit plan, contract, program or arrangement, or the
administration of any such plan, contract, program or
arrangement as set forth on Schedule 3.12;
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(J) for any liability related to, associated with or
arising out of the employment or termination of employment
of employees or former employees, sales or service
representatives, agents or former agents, independent
contractors or former independent contractors of Unocal,
whether arising prior to or after the Closing Date but
relating to periods prior to said date, including, without
limiting the generality of the foregoing, all amounts due
to or on behalf of such employees in respect of wages,
salary, bonuses or commissions, vacations or holiday pay,
termination or severance pay;
(K) for any liability or obligation as is included in
the Operations 1990 Statements, to the extent not expressly
assumed by Purchaser;
(L) except as provided in 2.4 (b)(ii) and (iii), for any
liability or obligation, whether similar or dissimilar to
any of the foregoing, including any violation of law,
arising prior to the Closing Date, to the extent not
assumed by Purchaser and to the extent that Purchaser has
not contributed to such liability or obligation;
(M) for any liability or obligation for Category B
Property, the title to which is not transferred, or the
lease for which is not assumed by Purchaser, under Section
7.1(c); except for Taking Category B Properties Out of
Service as provided in Section 2.4(b)(iii);
(N) for off-site use, transportation, storage, disposal
or treatment of any Chemical Substance by or on behalf of
Unocal and its Affiliates; and
(O) that Unocal is obligated to discharge pursuant to
Section 9.3 for transfer taxes or Section 9.4 for certain
other expenses.
(c) Upon the condition that the Closing shall occur, Purchaser agrees
to discharge all liabilities and obligations with respect to the Assets
and Operations that are incurred by Purchaser at or after the Effective
Time;
(d) With respect to liabilities involving exposure to Chemical
Substances or other workplace conditions, the provisions of Section 7.2
will apply.
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2.5 Allocation of Purchase Price
The purchase price shall be allocated by agreement as set forth on Schedule
2.5. Unocal and Purchaser shall prepare their respective federal, state and
local tax returns and all required information returns in a manner consistent
with such allocation.
2.6 Allocation of Environmental cleanup Liabilities
(a) Subject to the requirements for filing a Claim Notice as provided
in Section 2.4(b)(ii) and Article Seven, and to satisfaction of Unocal's
Environmental Cleanup Liability under Section 7.1(c)(iii) Environmental
Cleanup Liabilities shall be allocated between Unocal and Purchaser as
follows:
(i) Any Environmental Cleanup Liability arising from Chemical
Substances that Unocal or its predecessors used and Purchaser
never used shall be one-hundred percent (100%) Unocal's liability;
provided that Purchaser's storage, handling and transfer from the
site of Inventory present at a site at the Effective Time, and not
thereafter otherwise used by Purchaser at the site shall not be
considered used by Purchaser at the site for purposes of this
Section 2.6(a)(i).
(ii) Any Environmental Cleanup Liability from an identified
Release of a Chemical Substance by Purchaser which increases the
amount of Environmental Cleanup Liability to Unocal with respect
to that Chemical Substance, shall be one hundred percent (100%) of
the increase in costs as Purchaser's liability.
(iii) Any Environmental Cleanup Liability from a Chemical
Substance that Unocal or its predecessors used and Purchaser also
used, Unocal shall bear one hundred percent (100%) of liability
for the costs of the work performed during
(A) the first four (4) years after Commencement of
Remedial Activity as defined in Section 2.6(c) under a
Workplan, or
(B) the first five (5) years after the Closing Date,
whichever is longer;
with Unocal's share decreasing by ten percent (10%) and
Purchaser's share increasing by ten percent (10%) for the costs of
the work performed each year beginning with the following year
after the above described four or five year period; and
one-hundred percent (100%) Purchaser's liability for the costs of
the work performed during the tenth
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beginning of the above described shared liability, and for any
year thereafter; except that this Section 2.6(a)(iii) shall not
reduce Purchaser's liability under Section 2.6(a)(ii) when both
Sections apply at the same site.
If Unocal's performance of remedial activity under a Workplan is
delayed
(A) due to a default by Unocal under the Workplan,
(B) due to a suspension of activity at Unocal's request,
or
(C) due to war, riot, storm, earthquake, other natural
force, strike, or government order, which delay Unocal's
performance in excess of 30 consecutive days in any
calendar year, the running of time periods for purposes of
allocation of percentage liability for work performed and
cost due and payable under this Section 2.6(a)(iii) shall
be tolled during the period of such delays. Any other delay
including scheduled or routine maintenance or inspections,
replacement of equipment due to normal wear and tear, or
seasonal or periodic shutdowns consistent with the Workplan
shall not toll the running of any time period under this
Section 2.6(a)(iii).
(iv) Any Environmental Cleanup Liability from a Release of a
Chemical Substance by Purchaser distinct in the type of Chemical
Substance or location from any Chemical Substance or location
related to the Environmental Cleanup Liability of Unocal or caused
by any activity undertaken as part of an environmental study
conducted by Purchaser or on its behalf, shall be one-hundred
percent (100%) Purchaser's liability; except that this Section
2.6(a)(iv) shall not reduce Unocal's liability under Section
2.6(a)(ii).
(b) The term "used" for purposes of this Section 2.6 shall include
manufacture, processing, handling, transfer, receipt, storage, disposal
or other use of a Chemical Substance at a site or separate and distinct
area of a site.
(c) For purposes of this Section 2.6, "Workplan" shall mean a workplan
describing a course of remedial activity approved by a government agency.
For purposes of this Section 2.6, "Commencement of Remedial Activity"
shall mean the date on which remedial action is commenced in accordance
with a Workplan addressing one or more specific Chemical Substance(s) or
environmental
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condition(s), in a specific medium or media (soil, groundwater and/or
surface water) at a specific site or separate and distinct area of a
site, without regard to any amendment, revision, or supplement or
subsequent Workplan related thereto provided, however, that the
Commencement of Remedial Activity shall not in any event be earlier than
the Closing Date. If such remedial activity is commenced in accordance
with a Workplan which is subsequently approved in all material respects
by a government agency, the Commencement of Remedial Activity shall be
deemed to relate back to the actual date of commencement.
Commencement of Remedial Activity to address a different Chemical
Substance, environmental condition, medium, site or separate and distinct
area of a site, shall be regarded as a separate Commencement of Remedial
Activity, but only to the extent of the additional remedial action
required to address that different Chemical Substance, environmental
condition, medium, site or separate and distinct area of a site. The
costs attributed to the additional remedial action shall be the increase
in costs caused by the additional remedial activity.
Remedial investigation, feasibility studies, design, construction of
facilities, emergency work or pilot plant operations shall not be
considered to be Commencement of Remedial Activity. No activity
undertaken pursuant to an amendment, revision, or supplement made to a
Workplan, nor any activity undertaken under a Workplan adopted because of
an Environmental Law effective after one year from the transfer of title
to a site, or three years from the Closing Date, whichever is earlier,
shall be deemed to be a Commencement of Remedial Activity.
(d) Any Environmental Cleanup Liability with regard to any Chemical
Substances that may have migrated off a site shall be treated as part of
the adjacent site with respect to the application of the terms of this
Agreement, including but not limited to the terms of this Section 2.6.
(e) Purchaser may cause environmental studies to be performed at all
Category A Properties within two (2) weeks after the Closing Date and at
all Category B Properties within two (2) weeks after the transfer of
title to any Category B Property. Said environmental studies shall be
performed by a competent independent contractor and shall be comprised of
such sampling and testing with respect to such locations as Purchaser
reasonably determines are necessary or advisable for the identification
and/or quantification of Chemical Substances which contaminates the
surface water, groundwater, land surface or sub-surface strata at such
sites; Purchaser shall inform Unocal of the details of such environmental
studies, and the parties will meet with the independent contractor and
attempt in good faith to agree upon the protocols therefor. If the
parties have so agreed,
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Purchaser will notify Unocal in advance of the commencement of the
environmental study at each site and provide access to the independent
contractor and provide Unocal with the results thereof (including all raw
data) promptly after completion. Unocal shall reimburse Purchaser for
one-half of the costs and expenses of such environmental studies;
provided, however, that where Unocal has suggested, and Purchaser has not
agreed to include, additional or supplemental items, such as new xxxxx,
in said environmental studies, then Unocal may conduct such studies
independently and shall pay the entire cost and expense of such
additional and supplemental items. If Unocal has reimbursed Purchaser as
set forth above, neither party's cost and expense in such regard shall be
Damages for which either shall be liable to indemnify the other pursuant
to Article 7 of the Agreement. Nothing contained herein shall otherwise
define or limit the respective rights and obligations of either party
under this Agreement.
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ARTICLE THREE - REPRESENTATIONS AND WARRANTIES OF UNOCAL
Unocal represents and warrants to Purchaser that:
3.1 Organization
(a) Unocal is a corporation duly organized under the laws of
California.
(b) Unocal is validly existing and in good standing under the laws of
California.
(c) Unocal has the full power and authority to own, lease and
operate its properties and to carry on its businesses as now being
conducted.
(d) Unocal is duly qualified or licensed to do business and in good
standing in all jurisdictions in which the character of the Assets owned
or leased by it or the nature of the Operations conducted by it requires
it to be so qualified, except where failure to be so qualified would be
immaterial to its business in any such jurisdiction.
(e) Prior to the date of this Agreement, Unocal has delivered to
Purchaser true, correct and complete copies of its Articles of
Incorporation and a certificate of good standing from the State of
California.
3.2 Authority; Enforceability
Unoca1 has the corporate power and authority to enter into this Agreement and
each of the Related Agreements and to carry out its a obligations hereunder and
thereunder. The execution and delivery of this Agreement and each of the
Related Agreements and the consummation of the transactions provided for hereby
and thereby have duly authorized by the Board of Directors of Unocal and no
other corporate proceeding on the part of Unocal is necessary to a authorize
execution or delivery of this Agreement or any of the Related Agreements or the
consummation of any of the transactions contemplated hereby or thereby. With
respect to Unocal, each of this Agreement and the Related Agreements is, or
upon its execution will be legal, valid, binding and enforceable in
accordance with its terms.
3.3 Consents
Except as set forth on Schedule 3.3, no consent, waiver, approval,
authorization, exemption, registration, license or declaration ("Consent") of or
by, or filing with, any other Person is required with respect to Unocal or any
of its Affiliates in connection with the execution, delivery or enforceability
of this Agreement, the
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Related Agreements or the consummation of any of the transactions provided for
hereby or thereby, other than
(i) those for which any adverse consequences arising out of the
failure to obtain such consent or to make such filing are immaterial,
individually or in the aggregate, to the respective Assets and/or
Operations, and
(ii) filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976.
3.4 No Breach
Except as set forth on Schedule 3.4, each of the execution and delivery of
this Agreement, the Related Agreements and the consummation of the transactions
provided for hereby and thereby does not and will not
(i) conflict with or violate any provision of the Articles of
Incorporation or By-Laws of Unocal or any of its Affiliates, .
(ii) result in the creation of any Liens (other than Permitted
Encumbrances) upon any of the Assets,
(iii) constitute a violation by Unocal or any of its Affiliates of any
Legal Requirement, or
(iv) violate or conflict with or constitute a default under or give
rise to any right of termination, cancellation or acceleration under any
Material Contracts to which Unocal or any of its Affiliates is a party
and by which it or its Assets or Operations may be bound.
3.5 Financial Statements: Liabilities
Schedule 3.5 contains the unaudited pro forma balance sheet at December 31,
1990 of the Operations and the unaudited pro forma income statement of the
Operations for the year then ended (collectively, the "Operations 1990
Statements"). Except as disclosed on Schedule 3.5, the Operations 1990
Statements have been
(i) prepared based upon financial data developed in conformity with
generally accepted accounting principles, consistently applied throughout
the period indicated and the structure of the Chemicals Distribution
Business as reflected in the 1990 Statements,
(ii) include all material adjustments necessary to present fairly the
financial condition of the Chemicals Distribution Business as of December
31, 1990 and for the year then ended, and
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(iii) contain no untrue statement of any material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statement in light of the circumstances under
which it was made, not misleading.
Except as disclosed in the Operations 1990 Statements or as set forth on
Schedule 3.5, as of December 31, 1990 the Operations did not and, except for
such as have been incurred in the ordinary course of business, the Operations do
not have, any 1iabilities, debts or obligations, accrued, absolute, contingent
or otherwise, whether due or to become due:
(i) that are of a type which would be required to be reflected or
disclosed in a balance sheet or income statement under generally
accepted accounting principles; and
(ii) which are material to the financial condition of the Assets or the
Operations taken as a whole.
3.6 Title to Property
The exceptions to the titles to the Owned Real Estate as set forth in the
copies of the commitments for title insurance included in Schedule 3.7(a) for
the respective parcels of Owned Real Estate and the Liens described in Schedule
3.6 are the Permitted Encumbrances. If a title commitment set forth in Schedule
3.7(a) fails to disclose any recorded Lien or a Lien otherwise known to the
Title Company against the title to a parcels of Owned Real Estate, and the
Lien shall be deemed to be a Permitted Encumbrance even though it is not
included in Schedule 3.7(a) or Schedule 3.6. Except as set forth in Schedule
3.6, Unocal has, and upon consummation of each transaction contemplated hereby
Purchaser will have, free and clear of all Liens other than Permitted
Encumbrances,
(i) fee simple title to all Owned Real Estate, and Owned Personal
Property,
(ii) the assignable rights to all of the Assets now leased by Unocal,
(iii) subject to Section 9.5, valid and subsisting leasehold estates in
all of the Leased Real Estate, and
(iv) the rights, subject to Section 9.5, to the same extent as now held
by Unocal and which are transferred by this Agreement, to utilize all the
Assets, to employ all techniques, formulations and procedures, to sell
all its products and to perform all services performed by it.
If, in the opinion of Purchaser, the title commitment, surveys, drawings or
Schedule 3.6 disclose unpermitted encumbrances Purchaser shall advise Unocal in
writing of its objections in sufficient time, as agreed between Unocal and
Purchaser, to allow
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Unocal to initiate procedures to remedy those items so that they are either
eliminated or can be insured over by a title company. In such event, Unocal
shall have until Closing to initiate procedures to remedy said objections. The
title commitment shall be conclusive evidence of good title as therein shown as
to all matters insured by the policy, subject only to the exceptions as therein
stated and further subject to this Section 3.6.
At the Closing, the instruments of transfer and conveyance delivered to
Purchaser will vest in Purchaser fee simple title to al1 the owned Real Estate
and good and marketable title to all other Assets transferred which are owned by
Unocal and its Affiliates, free and clear of all Liens other than Permitted
Encumbrances.
3.7 Real Estate
(a) Schedule 3.7(a) contains a description of each parcel of Real
Estate. Owned Real Estate is described in the respective commitment for
title insurance for each parcel of owned Real Estate. Leased Real Estate
is described in the respective lease agreement for each parcel of Leased
Real Estate owned by or leased to Unocal or any of its Affiliates which
is to be conveyed or, subject to Section 9.5, otherwise transferred to
Purchaser pursuant to this Agreement. Unocal has not granted any options
nor is it bound by any contractual obligations (including unrevoked
offers that have expired more than six months prior to the date hereof)
to sell or dispose of any interest in the Real Estate except for the
right of first refusal extended to Rohm and Hans Company related to the
Charlotte, North Carolina facility as defined in the "Butadiene Transfer
Agreement". All of the buildings, structures and appurtenances situated
on the Real Estate listed in Schedule 3.7(a) are maintained in accordance
with Unocal's customary usage and maintenance practices.
(b) Purchaser shall procure policies of title insurance (without
coverage for the legal description and encroachments); payments for such
insurance shall be the responsibility of the Party as set forth in
Schedule 3.7(b). Unocal will comply with all requirements of the title
company set forth in the commitments for title insurance set forth on
Schedule 3.7(a).
(c) Each lease which comprises the Leased Real Estate is a valid and
binding obligation of Unocal, to the best of Unocal's knowledge is the
valid and binding obligation of the other party thereto, and is in full
force and effect. There are no known defaults relating to any such lease
on the part of Unocal and to the best of Unocal's knowledge, no event has
occurred which (whether with or without notice, lapse of time or the
happening or occurrence of any other event or combination of events)
would constitute a default by any other party under any of the leases.
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(d) Schedules 3.6 and 3.7(a) set forth a list of all material
easements, licenses, rights of way, variances, or similar arrangements in
respect of the use of any of the Real Estate.
3.8 This Section intentionally left blank.
3.9 Compliance with Laws
Except as set forth on Schedule 3.9, with respect to the Assets and operations
except for terminals, Unocal and each of its Affiliates are to Unocal's
knowledge in compliance in all respects (other than noncompliance that is
immaterial, individually or in the aggregate to the respective Assets and/or
Operations) with all Judgments and Legal Requirements in effect, and to Unocal's
knowledge, there are no outstanding assessments, pending or threatened actions,
causes of action, claims, complaints, demands, orders, prosecutions or suits
against Unocal pursuant to or under any such Legal Requirements.
3.10 Outstanding Commitments
(a) To Unocal's knowledge, Schedule 2.4(b)(v)(A) and Schedule 3.7(a)
contain an accurate and complete list of all Material Contracts, to which
Unocal or any of its Affiliates is a party, that relate primarily to the
Assets or the Operations.
(b) Prior to the date of this Agreement, Unocal has delivered to
Purchaser true, correct and complete copies of all of the Material
Contracts listed on Schedule 2.4(b)(v)(A) except those contracts for
which permission to disclose information has not been obtained but has
been so identified on Schedule 2.4(b)(v)(A).
(c) All the Material Contracts set forth in Schedule 2.4(b)(v)(A) and
Schedule 3.7(a) are valid and binding obligations on the part of Unocal,
and, to Unocal's knowledge, of the other parties thereto, and are in full
force and effect. There are no known defaults thereunder by Unocal or by
any other party to any such agreement or contract; and no known event has
occurred which (whether with or without notice, lapses of time or the
happening or occurrence of any other event or combination of events)
would constitute a breach or default by Unocal or by any other party to
any such agreement or contract.
3.11 Employee Matters
Schedule 3.11 sets forth those persons who are proposed to be the transferred
Employees. Except for employees covered by collective
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bargaining agreements, the rates of pay of such individuals are not subject to
any contractual obligations. Unocal shall include on Schedule 3.11, along with
each employee's name, each such employee's Social Security number, hourly rate
or bi-weekly salary, date of hire and job title.
Operations personnel required pursuant to the Operating Agreement at any
Category 3 Property will not be available for transfer to Purchaser until
Purchaser takes title to the property or the 0perating Agreement for the
property terminates, whichever occurs first, except that Unocal retains the
right to delay transferring necessary personnel for such time that is required
to Take Category B Property Out of Service.
3.12 Employment Benefits
Schedule 3.12 contains a true and complete list of all employment contracts,
stock option, stock purchase, incentive, bonus, pension, superannuation,
retirement, profit sharing, group insurance, death, disability, employee
welfare, sick leave, severance, non-qualified deferred compensation or other
similar fringe or employee benefit plans, pursuant to which the Transferred
Employees of Unocal are covered (the "Employee Plans") and summary plan
descriptions.
3.13 Actions and Proceedings
(a) Except as set forth on Schedule 3.13(a), to Unocal's knowledge, as
of the Closing Date, there is no action, suit, government
investigation, claim or legal, administrative or arbitration proceeding
(each a "Proceeding" and collectively, "Proceedings") pending or
threatened in a writing received by Unocal or orally to regional managers
and their superiors in the Industrial Products Group, Unocal Chemicals
and Minerals Division in Unocal's reasonable discretion, represents a
serious threat, whether or not the defense thereof or liability in
respect thereof is covered by policies of insurance, nor any Judgment
(that has not been discharged), in each case involving or affecting any
of the Assets or Operations seeking
(i) compensation in an amount in excess of ten thousand
dollars ($10,000),
(ii) compensation in an unspecified amount or
(iii) any injunctive relief, except for such injunctive
relief that if granted would be immaterial,
individually or in the aggregate, to the respective
(b) To Unocal's knowledge, except as set forth on Schedule 3.13(b), no
Proceeding is pending or threatened in a writing received by Unocal or
orally to regional managers and their
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superiors in the Unocal Chemicals and Minerals Division in Unocal's
reasonable discretion, represents a serious threat, before any court,
arbitrator or administrative or governmental authority, bureau or agency
to restrain or prohibit this Agreement, or to obtain damages, a discovery
order or other relief in connection with this Agreement or any material
part of the transactions contemplated hereby or thereby.
3.14 Employee Relations
Except, as set forth on Schedule 3.14, since December 31, 1990 and up to the
Closing Date there has not occurred, or to Unocal's knowledge been seriously
threatened, any strikes, slow downs, picketing, work stoppages or other
similar labor activities with respect to employees employed in the Operations.
Except as set forth on Schedule 3.14 no unfair labor practice charge under the
National Labor Relations Act, grievance or arbitration proceeding arising,
out of or under any collective bargaining agreement relating to the
Operations is pending, and no such grievance or providing is to Unocal's
knowledge seriously threatened, except for grievances and proceedings for
which any consequences arising out of an adverse determination would be
immaterial, individually or in the aggregate, to the respective Assets and/or
Operations and, to Unocal's knowledge, there are no known union organizing
drives or union organizing meetings involving employees of the Chemicals
Distribution Business.
3.15 Absence of Certain Changes
Except as set forth on Schedule 3.12 and Schedule 3.15 or provided for or
permitted by this Agreement, since December 31, 1990 and up to the Closing Date:
(i) the Operations have been conducted and the Assets have been used
or held by Unocal and its Affiliates only in the ordinary course of its
business;
(ii) there has not been any material adverse change or changes, alone
or in the aggregate, in the Operations that have been caused by Unocal's
actions;
(iii) Unocal has been involved in no transaction or entered into any
contract other than in the ordinary course of business, and specifically
without limitation of the foregoing, no sales, removals or deliveries of
Assets of any nature have been made or agreed to be made, except in the
ordinary course of business;
(iv) there has been no material casualty or other material loss, damage
or destruction of or to any of the Assets; and
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(v) Unocal has not, other than in the ordinary course of business,
(A) made or agreed to make any material change in any employee benefit
plan, contract, program or arrangement of a nature described in Section
3.12,
(B) constituted or amended any bonus, incentive compensation or similar
plan for any of such employees,
(C) raised the rate of bonuses or commissions or, except in the ordinary
course of personnel practice, salaries, hourly rates or other compensation
for any of such employees, or
(D) entered into any collective bargaining or labor agreement, or
experienced any labor dispute or difficulty
3.16 Brokers
A11 negotiations relating to this Agreement or the Related Agreements and the
transactions contemplated hereby and thereby have been carried on without the
intervention of any Person acting on Behalf of Unocal or its Affiliates in such
manner as to give rise to any valid claim against Purchaser or its Affiliates
for any broker's or finder's fee or similar compensation in connection with
the transactions contemplated hereby or thereby.
3.17 Other Purchaser Liabilities
Other than Permitted Encumbrances and except as:
(i) provided for in this Agreement or Related Agreements,
(ii) set forth on Schedule 3.17 or the Related Agreements;
(iii) approved in writing by Purchaser; or
(iv) caused by Purchaser or its Affiliates
Unocal has not with respect to this Agreement or the Related Agreements,
directly or indirectly, caused, created or caused the creation or imposition of:
(i) any liability or obligation on behalf of Purchaser;
(ii) any Liens to which Purchaser, the Assets or Operations are or will be
subject;
(iii) any Contracts to which Purchaser is a party;
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(iv) any Judgments against Purchaser; or
(v) any claim (contingent, absolute, asserted or unasserted) against
Purchaser, the Assets and Operations.
3.18 Inventory
A Physical count of Inventory taken by Unocal in the ordinary course of business
on December 31, 1991, has been provided to Purchaser on Schedule 3.18. All
Inventory as at said date and thereafter acquired is and shall on the Closing
Date be non-obsolete and merchantable as described in the definition of
Inventory.
3.19 Trade Accounts Payable
Unocal has previously provided Purchaser a complete and accurate list of all
Trade Accounts Payable and accruals as of December 31, 1991.
3.20 Trade Accounts Receivable
Unocal has previously provided Purchaser a complete and accurate list of all
Trade Accounts Receivable as of December 31, 1991.
3.21 Customers and Suppliers
Unocal has on the date of this Agreement provided to Purchaser a complete and
accurate list of all of Unocal's customers and for the Chemicals Distribution
Business as of December 31, 1990, attached hereto as Schedule 3.21, and a
complete and accurate list of all of Unocal's suppliers as of December 31,
1991. There are no known material claims or controversies pending between
Unocal and its customers or suppliers other than those arising in the ordinary
course of business.
3.22 Condition of Certain Assets
All fixtures, machinery, equipment, repair and replacement parts, vehicles,
furniture and office, computer and laboratory equipment 1isted on Exhibit B are
in good operating condition and repair, and have been maintained in accordance
with Unocal's customary practice for that equipment.
3.23 Tax Matters
Except as set forth on Schedule 3.23, Unocal has timely paid all Taxes and all
interest and penalties thereon due and payable by it for all periods ended on or
prior to the date hereof, or which will
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have been required to be filed on or prior to the Closing Date, the non-payment
of which would result in a lien or encumbrance on any Asset-would otherwise
adversely affect the Operations or would result in Purchaser becoming liable or
responsible therefor. All Taxes (excluding income taxes) assessed against the
Assets or Operations for the year 1991 and all prior years and due before the
C1osing Date have been paid.
3.24 No Business Relationship with South Africa
With respect to the Chemicals Distribution Business, Unocal is not engaged in
the sale or export of goods or services, either directly or indirectly, to South
Africa and Namibia, is not engaged in the buying or importing of goods or
services, either directly or indirectly, from South Africa or Namibia; is not a
party to, and has no interest in, any franchise, licensing, or management
agreement with any entity, either public or private, in South Africa or Namibia;
is not engaged in, and is not a party to, any investment, deposit, loan,
borrowing, or credit arrangement or involved in any other financial dealings,
with any entity, either public or private, in South Africa or Namibia; and, is
not owned or controlled (as defined by the beneficial possession of more than
five percent (5%) of the firm's common stock) by any entity, either public or
private, in South Africa or Namibia.
3.25 Permits
Unocal has or has applied for all Permits necessary for the conduct of the
Operations. Each such Permit (a list of which Permits and applications,
including expiration dates, is attached hereto as Schedule 3.25) has been
validly issued and is in full force and effect or an application is presently
pending. Unocal is currently in material compliance with the terms and
conditions of each those Permits.
3.26 Completeness of Information
No representation or warranty by Unocal in this Agreement, or in any Exhibit,
Schedule, certificate, or other instrument furnished to Purchaser by Unocal
pursuant to this Agreement contains or will contain in any untrue statement of a
material fact or fails or will fail to state a material fact necessary to make
the statements contained herein or therein complete or not misleading in any
material respect.
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ARTICLE FOUR - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Unocal that:
4.1 Organization
(a) Purchaser is a corporation duly organized under the laws of the State
of Ohio.
(b) Purchaser is validly existing and in good standing under the laws of
its jurisdiction of incorporation.
(c) Purchaser is duly qualified or licensed to do business and in good
standing in all jurisdictions in which the character of the Assets or the
nature of the Operations requires it to be so qualified, except where
failure to be so qualified would be immaterial, individually and in the
aggregate, to its business.
(d) Prior to the date of this Agreement, Purchaser has delivered to Unocal
true, correct and complete copies of its Certificate of Incorporation or
Articles of Incorporation, as the case may be.
4.2 Authority; Enforceability
Purchaser has the corporate power and authority to enter into this Agreement,
each of the Related Agreements and to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement, each of the Related
Agreements and the consummation of the transactions provided for hereby and
thereby have been duly authorized by the Board of Directors of Purchaser and
other corporate proceeding on the part of Purchaser is necessary to
authorize the execution or delivery of this Agreement, any of the Related
Agreements or the consummation of any of the transactions contemplated hereby or
thereby. With respect to Purchaser, each of this Agreement and the Purchaser
Agreements is, or upon its execution and delivery will be legal, valid, binding
and enforceable in accordance with its terms.
4.3 Consents
No Consent of or by, or filing with, any other Person (including, but limited to
any government or political subdivision or any agency, department or
instrumentality thereof) is required with respect to Purchaser or any of its
Affiliates, in connection with the execution, delivery or enforceability of this
Agreement, the Related Agreements or the consummation of any of the transactions
provided for hereby or thereby, other than
(i) those set forth on Schedule 4.3;
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(ii) those for which any adverse consequences arising out of the failure to
obtain such consent or make such filing are immaterial, individually or in
the aggregate, to the respective Assets and/or Operations; and
(iii) filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976.
4.4 No Breach
Except as set forth on Schedule 4.4, each of the execution and delivery of this
Agreement, the Related Agreements and the consummation of the transactions
provided for hereby and thereby does not and will not
(i) conflict with or violate any provision of the Certificate of
Incorporation, or Articles of Incorporation, as the case may be, or
the By-Laws of Purchaser or any of its Affiliates,
(ii) result in the creation of any Liens (other than Permitted
Encumbrances) upon any of the Assets or
(iii) constitute a violation by Purchaser or any of its Affiliates of any
Legal Requirement.
4.5 Actions and Proceedings
To purchaser's knowledge, except as set forth on Schedule 4.5, no Proceeding or
investigation is pending or threatened before any court, arbitrator or
administrative or governmental authority, bureau or agency to restrain or
prohibit this Agreement, or to obtain material damages, a discovery order or
other material relief in connection with this Agreement or any of the Related
Agreements or any material part of the transactions contemplated hereby or
thereby.
4.6 Brokers
All negotiations relating to this Agreement, the Related Agreements and the
transactions contemplated hereby and thereby have been carried on without the
intervention of any Person acting on behalf of Purchaser or its Affiliates in
such manner as to give rise to any valid claim against Unocal or its Affiliates
for any broker's or finder's fee or similar compensation in connection with the
transactions contemplated hereby or thereby.
4.7 Completeness of information
No representation or warranty by Purchaser in this Agreement, or in any Exhibit,
Schedule, certificate, or other instrument furnished
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to Unocal by Purchaser pursuant to this Agreement contains or will contain any
untrue statement of a material fact or fails or will fail to state a material
fact necessary to make the statements contained herein or therein complete or
not misleading in any material respect.
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ARTICLE FIVE - ACTIONS PRIOR TO CLOSING
5.1 Operations and Actions
Except as contemplated in, or provided for by, this Agreement or any of the
Related Agreements or as required by any applicable Legal Requirement, from the
date hereof until the Effective Time, Unocal agrees that, with respect to the
Assets or the Operations, without the prior written consent of Purchaser:
(a) it and its Affiliates shall not, except in the ordinary course and
consistent with past practice:
(i) amend or modify (except in immaterial respects), terminate or
suspend operations;
(ii) waive any rights (except, in immaterial respects) under any
existing employee benefit plan with respect to the Transferred
Employees or under any Contracts (other than Contracts that are
immaterial, individually or in the aggregate, to the respective
Assets and/or Operations);
(b) neither it nor its Affiliates shall take any action or omit to take
any action which would cause:
(i) any of the representations and warranties of Unocal contained
in Article Three to be untrue and/or incorrect in any material
respect if such representations and warranties were made
immediately after such act or failure to act or
(ii) Unocal to be unable to comply with any of its covenants or
agreements set forth herein or in the Related Agreements; and
(c) it and its Affiliates shall use their reasonable efforts, consistent
with past practices to:
(i) maintain the services of, and good relations with, the
distributors, agents, customers and suppliers with whom sales
or purchases, as the case may be, are effected in connection
with the Assets or Operations;
(ii) conduct the Operations in the ordinary course;
(iii) duly comply with all laws and contractual obligations
applicable to it;
(iv) retain the services of its present employees and to encourage
them to continue employment with Purchaser; and
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(v) cooperate with Purchaser in the transfer of the Chemicals
Distribution Business to Purchaser.
From the date hereof until the Effective Time, neither Purchaser nor its
Affiliates shall take any action or omit to take any action without the prior
written consent of Unocal which would cause;
(i) any of the representations and warranties of Purchaser contained in
Article Four to be untrue and/or incorrect in any material respect
if such representations and warranties were made immediately after
such act or failure to act or
(ii) Purchaser to be unable to comply with any of its covenants or
agreements set forth herein or in the Related Agreements.
5.2 Casualty Loss; Condemnation; Injunction
Unocal and Purchaser covenant that if between the date hereof and the Effective
Time:
(a) any of the Assets to be transferred at the Effective Time shall be
destroyed or damaged in whole or in part by fire or other casualty:
(i) Unocal promptly shall notify Purchaser of such occurrence and
the estimated cost of repairing or replacing the affected
Assets;
(ii) if the repair and replacement costs are less than or equal to
one hundred thousand dollars ($5100,000), Unocal shall repair
or replace the affected Assets at its expense and shall
provide Purchaser with written notice of its undertaking to
complete, the estimated completion date for, and a general
outline of such repair or replacement; and
(iii) if the repair and replacement costs are greater than one
hundred thousand dollars ($100,000), Unocal shall notify
Purchaser within thirty (30) days of such casualty as to
whether Unocal elects to repair or replace the affected Assets
at its expense, and
(A) if Unocal does so elect, of the estimated completion
date for, and a general outline of, such repair or
replacement or
(B) if Unocal does not so elect, and Unocal and Purchaser
will negotiate in good faith, the repair or replacement
of the affected Assets or appropriate adjustments to the
purchase price maid bY Purchaser; or
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(b) any of the Assets shall be taken, or any Proceedings are pending or
any of Unocal or its Affiliates is notified of a threatened
Proceeding to take any of the Assets in whole or in part by eminent
domain, the proceeds from the taking shall go to the Purchaser. No
adjustment to the purchase price will be made.
5.3 Inspections
From the date hereof until the Effective Time or, in respect to Category B
Property on Schedule 3.7(a), the date of transfer to Purchaser or terminations
of an Option to Purchase thereof, Unocal shall permit Purchaser and its
representatives access, at Purchaser's sole risk and expense, to inspect and
evaluate the Assets and Operations.
Purchaser shall have the right (except at the La Mirada, California facility) to
enter upon, investigate and collect air, surface water, groundwater and soil
samples, provided that such entry, investigation and sampling shall not
interfere with the normal business and operations of Unocal. Unocal shall
disclose and make available to Purchaser and its representatives all contracts,
books, records, papers, reports, audit reports, documents, plans and drawings
relating to the ownership, operation, maintenance, construction and
environmental investigation and remediation of the Assets and Operations
(subject to existing confidentiality agreements with third parties), including,
to the extent prepared in the ordinary course, such monthly and quarterly
financial statements and operating reports as are related solely to the Assets
and Operations and as may reasonably be necessary or appropriate for any
relevant purposes of investigation and analysis. Upon Purchaser's reasonable
request, Unocal shall attempt to secure waivers of any such confidentiality
agreements. Unocal shall arrange for Purchaser and its representatives to
discuss with appropriate officers, employees, consultants, contractors and
representatives of Unocal such matters related to the transactions provided for
herein as Purchaser reasonably requests.
5.4 Reasonable Efforts
From the date hereof until, as the case may be, the Effective Time or the
transfer of any parcel of Category B Property each of the parties hereto shall
use all reasonable efforts
(i) to cause all conditions to Closing set forth in Article Six to be
satisfied, as the case may be, on the Closing Date or the date of
transfer of a parcel of Category B Property, but only to the extent
that such conditions relate to its or its Affiliates' obligations,
covenants, representations or warranties hereunder and are within
its control;
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(ii) to obtain prior to the Effective Time, or date of transfer of a
parcel of Category B Property, all Consents required for the closing
of the transactions provided for in this Agreement; and
(iii) to help Purchaser obtain all Permits necessary to allow Purchaser,
on and after the Effective Time, to conduct the Operations as they
are currently conducted.
5.5 Transfer or Reissuance of Permits
Without limiting the rights which Purchaser may have under Sections 6.1 and 7.1
of this Agreement, Purchaser may elect by notice to Unocal that following the
Effective Time, Unocal and its Affiliates shall cooperate with any efforts of
Purchaser to complete the actions required to transfer or obtain the issuance of
all such Permits. During any interim between the Effective Time and completion
of the transfer or issuance of any such Permit in Purchaser's name, Unocal shall
provide Purchaser with the benefits of such Permit to the extent permitted by
applicable Legal Requirements and if such benefits are provided to Purchaser,
Purchaser shall observe and abide by the limitations imposed by or in respect of
such Permit. Purchaser shall bear all costs and expenses in connection with any
obligation or liabilities arising subsequent to the Effective Time under any
such Permit. Unocal and/or its Affiliates shall not be required to pay any
consideration or suffer any financial disadvantage to obtain any transfer to, or
issuance in the name of, Purchaser of any Permit. Unocal shall not be
responsible for any delay or refusal by any government agency to issue or
transfer any Permit to Purchaser.
5.6 Amendments to Schedules
If at any time prior to the Closing Date Unocal or Purchaser learns that any
representation contained in Articles Three or Four respectively, is or has
become untrue or incorrect in any material respect, such party shall promptly
notify the other party of
(i) the relevant facts and circumstances and
(ii) the amendments to the Schedules hereto which the notifying party in
good faith believes would be necessary to make the representations
contained in Articles Three or Four respectively, true and correct
in all material respects, in light of such facts and circumstances
(a "Proposed Amendment"). Purchaser and Unocal shall negotiate in
good faith appropriate adjustments, if any, in the price to be paid
by Purchaser under the pertinent Xxxx of Sale and in the amount of
liability or liabilities to be assumed by Purchaser under Section
2.4(b).
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5.7 Offers of Employment: Transferred Employees
(a) Prior to the Closing Date, Purchaser shall indicate to Unocal in
writing those persons on Schedule 3.11 who have been offered
employment with Purchaser and those who have accepted such
employment. Such offers of employment shall be contingent upon and
effective as of the Closing Date.
Offers of employment to exempt salaried employees of Unocal shall be at
the individual's base salary in effect at the time of such offer.
Purchaser will also recognize any Transferred Employee's salary adjustment
made between the time of any such offer and the Closing Date, pursuant to
established salary plans and within the normal course of business.
Offers of employment to non-exempt salaried and hourly paid employees of
Unocal shall be at the rates and subject to the terms and conditions
otherwise applicable to individuals that Purchaser would consider for
similar positions of employment.
(b) Those employees who accept such offers of employment from Purchaser,
and who
(i) satisfy any work-related physical or medical requirements;
(ii) supply proof of identity and of the right to work in the
United States;
(iii) are actively at work on the Closing Date or within 30 days
thereof; and
(iv) meet such other conditions as are generally prescribed by
Purchaser,
shall become "Transferred Employees," conditioned also upon and effective
as of the Closing.
The "Offer Letter" is attached as Exhibit O. The first day a Transferred
Employee is actively at work with the Purchaser is that employee's
"Employment Date".
(c) Notwithstanding the above, Purchaser shall have no obligation to
offer employment to any individual who is not employed pursuant to
Section 5.7(b) above. Purchaser will, however, agree to consider,
without obligation, for available positions for which they are
qualified, any employee listed on Schedule 3.11 who is available for
active employment, and who applies for employment with Purchaser
within 180 days of Closing. Any such employee employed within 180
days of the Closing will be subject to the provisions of Article
Nine as of his or her Employment Date.
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(d) Purchaser shall be responsible for the process of evaluating and
selecting the Transferred Employees.
(e) Notwithstanding anything to the contrary contained herein, all such
employees who accept an offer of employment with Purchaser shall be
employees-at-will, unless Purchaser expressly enters into a separate
written employment contract with any of such employees, and, in all
other respects not inconsistent with the foregoing and the
provisions of Article Nine, such Transferred Employees shall be
treated in the same manner as any new hire.
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ARTICLE SIX - CONDITIONS PRECEDENT TO OBLIGATIONS OF UNOCAL
AND PURCHASER
6.1 Conditions Precedent to Obligations of Purchaser
The obligations of Purchaser at the Closing are subject to the satisfaction or
waiver at or prior to the Closing Date of each of the conditions set forth
below. Notwithstanding the failure of any one or more of such conditions,
Purchaser may nevertheless proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions, but only with a written
waiver thereof executed by Purchaser.
The conditions referred to above are as follows
(i) All representations and warranties of Unocal contained in this
Agreement and/or in the Related Agreements shall be true and correct
in all respects (except in such respects as are immaterial,
individually or in the aggregate, to the respective Assets and/or
Operations) at and as of the Closing Date or the date specified
therein as though made on and as of such date; Unocal shall have
performed, in all material respects, all agreements and covenants
required by this Agreement and/or the Related Agreements to be
performed by it prior to or at the Closing Date; and at the Closing
Purchaser shall have received a certificate to the foregoing effect
for such performance (except to the extent waived in writing by
Purchaser) dated as of the Closing Date and signed by its duly
authorized officer;
(ii) No Proceeding, other than Proceedings in which an adverse decision
would be immaterial, individually or in the aggregate, to the
respective Assets and/or Operations, shall be pending seeking to
restrain or prohibit or declare illegal, or seeking substantial
damages in connection with:
(A) any material part of the transactions provided for
hereby or by the Related Agreements;
(B) the ownership by Purchaser (including enjoyment of any
rights relating thereto) of the Assets;
(C) the operation of any of the Operations by Purchaser;
(iii) Unocal shall have performed all acts and executed and delivered all
documents which Section 2.2 provides are to be performed or executed
and delivered by it at the Closing;
(iv) Unocal shall have delivered to Purchaser a certificate of its
Secretary or Assistant Secretary to the effect that, as of the
Closing Date, it is not a foreign person as defined in the Internal
Revenue Code and Income Tax Regulations, such
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certificate to be substantially in the form described in Treasury
Regulation Section 1.1445-2(b)(2)(iii)(8) or otherwise within the
requirements of Section 1.1445-2(b)(2) of that regulation;
(v) Any applicable waiting periods or extensions thereof under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules
and regulations of the Federal Trade Commission thereunder shall
have expired without renewed inquiry;
(vi) Neither Purchaser nor Unocal shall have provided notice of its
election to terminate this Agreement pursuant to Article 8;
(vii) Purchaser shall have received from counsel for Unocal, a favorable
opinion, dated the Closing Date, substantially in the form attached
as Exhibit P; and
(viii) except as set forth on Schedule 3.12 or Schedule 3.15 or provided
for or permitted by this Agreement, since December 31, 1990:
(A) the Operations have been conducted and the Assets have been
used or held by Unocal and its Affiliates only in the ordinary
course of business;
(B) there has not been any material adverse change or changes,
alone or in the aggregate, in the business or in the prospects
(financial or otherwise) of the Operations that have been
caused by Unocal's actions;
(C) Unocal has been involved in no transactions or entered into
any contracts other than in the ordinary course of business,
and specifically, without limitation of the foregoing, no
sales, removals or deliveries of Assets of any nature have
been made or agreed to be made, except in the ordinary course
of business;
(D) there has been no material casualty or other material loss,
damage or destruction of or to any of the Assets;
(E) Unocal has not, other than in the ordinary course of business,
(1) made or agreed to make any change in any employee
benefit plan, contract, program or arrangement of a
nature described in Section 3.12,
(2) instituted or amended any bonus, incentive compensation
or similar plan for any of such employees
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(3) raised the rate of bonuses or commissions or, except in
the ordinary course of personnel practice, salaries,
hourly rates or other compensation for any of such
employees, or
(4) entered into any collective bargaining or labor
agreement, or experienced any labor dispute or
difficulty; and
(F) there has been no material adverse change or changes, alone or
in the aggregate, in Unocal's relationships with its
employees, customers, or suppliers other than as may relate to
the transaction contemplated by this Agreement.
6.2 Conditions Precedent to Obligations of Unocal
The obligations of Unocal at the Closing are subject to the satisfaction or
waiver at or prior to the Closing Date of each of the conditions set forth
below. Notwithstanding the failure of any one or more of any of such conditions,
Unocal may nevertheless proceed with the Closing without satisfaction, in whole
or in part, of any one or more of such conditions but only with a written waiver
thereof executed by Unocal.
The conditions referred to above are as follows:
(i) All representations and warranties of Purchaser contained in this
Agreement and/or the Related Agreements shall be true and correct in
all material respects at and as of the Closing Date or the date
specified therein as though made on and as of such date; Purchaser
shall have performed, in all material respects, all agreements and
covenants required by this Agreement and/or the Related Agreements
to be performed by it prior to or at the Closing Date; and at the
Closing Unocal shall have received from Purchaser a certificate to
the foregoing effect for such performance (except to the extent
waived in writing by Unocal) dated as of the Closing Date and signed
by its duly authorized officer;
(ii) No Proceeding to which Purchaser is a party, other than Proceedings
in which an adverse decision would be immaterial, individually or in
the aggregate, to the Assets and/or Operations, shall be pending
seeking to restrain or prohibit or declare illegal, or seeking
substantial damages in connection with:
(A) any material part of the transactions provided for hereby or
by the Related Agreements;
(B) the ownership by Purchaser (including enjoyment of any rights
relating thereto) of the Assets;
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(C) the operation of any of the Operations by Purchaser;
(iii) Purchaser shall have performed all acts, made all payments and
executed and delivered all documents which Section 2.2 provides are
to be performed, made or executed and delivered by it at the
Closing;
(iv) Any applicable waiting periods or extensions thereof under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules
and regulations of the Federal Trade Commission thereunder shall
have expired without renewed inquiry;
(v) Neither Purchaser nor Unocal shall have provided notice of its
election to terminate this Agreement pursuant to Article 8;
(vi) Unocal shall have received from counsel for Purchaser, a favorable
opinion, dated the Closing Date, substantially in the form attached
as Exhibit Q.; and
(vii) No action shall have been brought to prohibit or seek damages for
the execution of this Agreement or the fulfillment of the
transactions contemplated by its terms.
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ARTICLE SEVEN - INDEMNIFICATION
7.1 Indemnification by Unocal
From and after the Effective Time, subject to the provisions of this Article
Seven, Unocal agrees to pay and to indemnify fully, hold harmless and defend
Purchaser and its respective Affiliates, agents, officers, directors, partners,
employees, servants, consultants, representatives, successors and assigns, from
and against any and all claims based upon allegations of and/or Damages (whether
based on negligent acts or omissions, statutory liability, strict liability or
otherwise) arising out of:
(a) subject to the limitations of Section 7.1(c), any material
inaccuracy or material breach as of the Effective Time of any
representation or warranty of Unocal contained in this Agreement or
any certificate delivered pursuant hereto and made at or as of the
Effective Time, or of any covenant or agreement of Unocal contained
in this Agreement;
(b) except as otherwise specifically set forth in this Agreement, any
liability whatsoever (whether known, unknown, accrued, absolute,
contingent or otherwise), which arose or was incurred by Unocal
and/or its Affiliates prior to the Effective Time, other than
Assumed Liabilities and to the extent that Purchaser has not
contributed to such liability or obligation;
(c) (i) (A) Environmental Compliance Costs to the extent these are a
Unocal liability as defined in this Agreement not to exceed
55,000,000 as set forth in Section 7.1(c)(iv);
(B) Environmental Cleanup Liability, to the extent these are
a Unocal liability as defined in this Agreement;
(C) Environmental Claims to the extent these are a Unocal
liability as defined in this Agreement;
(D) fines and penalties of any nature whatsoever assessed,
levied or asserted against Purchaser or any Indemnified
Party at any time as a result of a violation or alleged
violation, of any Environmental Laws;
that arise out of circumstances or conditions respecting the Assets
or Operations and existing prior to or at the Effective Time;
(ii) except for claims alleging a liability for or directly
resulting from off-site use. transportation.
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storage, disposal or treatment of any Chemical Substance by or on
behalf of Unocal and its Affiliates, Unocal shall have no obligation
under this Section 7.1(c),
(A) for Environmental Claims or Environmental Cleanup
Liability for which a Claim Notice is not delivered on
or prior to one year after the actual transfer of title
or assumption of lease for the respective property in
Category A Property or Category B Property, not to
exceed three years from the Effective Time; and
(B) for Environmental Compliance Costs, for both Category A
Property and Category B Property for which a Claim
Notice is not delivered on or prior to one year after
the Effective Time. Unocal shall not be responsible for
Environmental Compliance Costs at East Providence Rhode
Island; Tampa, Florida; and Wilmington, North Carolina.
If a legal restriction arises which prevents Purchaser from
conducting testing to determine Environmental Cleanup Liabilities
and giving a Claim Notice within such one year period, Purchaser
will be permitted a reasonable extension of time, not to exceed the
period of time equal to the time for which said legal restriction
exists, in which to give such Claim Notice. Both parties will use
their best efforts to avoid the necessity of such an extension;
(iii) Unocal's obligations with respect to any claim that meets the
criteria of a claim for Environmental Cleanup Liability shall
be deemed satisfied:
(A) for Environmental Cleanup Liability as is addressed in
Section 2.6(a)(i), five years after receipt of written
certification or other written acceptance by the
relevant government agency that Unocal has completed
performance of a remedial activity described in a
Workplan or order issued by said agency;
(B) for such Environmental Cleanup Liability as is addressed
in Section 2.6(a)(i), five years after acceptance by the
relevant government agency of Unocal's or Unocal's
contractor's written report recommending that no further
action is appropriate;
(C) Unocal and Purchaser agree in writing that Unocal's
obligations with regard to the
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Environmental Cleanup Liability in question is satisfied
which agreement shall not be unreasonably withheld by
Purchaser.
(iv) Furthermore, Unocal's liability to Purchaser for any
Damages or Retained Liabilities directly or indirectly
related to this Agreement regardless of whether Unocal
is alleged to be negligent actively, passively or not at
all, including but not limited to, any Related
Agreements or any Material Contracts, except for Damages
related to liability to Purchaser or to third parties to
the extent due to the sole negligence or willful
misconduct of Unocal, Environmental Cleanup Liability,
Claims Regarding Exposure Before and After the Effective
Time (Section 7.2), Article Eleven, or Article Twelve
off-site transportation, storage, disposal or treatment
of any Chemical Substances by or on behalf of Unocal and
its Affiliates, and Sections 2.2(b), 5.2, 9.1, 9.3, 9.4,
9.7, 9.8, 9.9, 9.10, 9.12 and 9.13 shall not exceed
seven million five hundred thousand dollars
($7,500,000). Notwithstanding any other language in this
Agreement, Unocal's obligations to Purchaser for
Environmental Compliance Costs incurred after the
Effective Time and including costs for work performed or
paid by or on behalf of Unocal and costs of Purchaser
indemnified by or on behalf of Unocal shall not exceed
five million dollars ($5,000,000) in the aggregate and
Environmental Compliance Costs for which Unocal is
obligated to reimburse Purchaser shall be included as
part of the overall seven million five hundred thousand
dollar limit on Damages and indemnifications from Unocal
to Purchaser;
(d) any infringement of any patent by the Assets or the
Operations, except to the extent such infringement is the
result of a modification to the Assets or change in the
Operations after the Effective Time; Provided, however, that
Unocal shall have no obligation under this Section 7.1(d) with
respect to any claim for which a Claim Notice is not delivered
on or prior to the fifth (5th) anniversary of the Effective
Time;
(e) Unocal's negligence or misconduct in its performance of any of
its obligations pursuant to Section 9.6 or 9.7;
(f) any Retained Liabilities:
(g) taxes relating to the Assets or Operations attributable to any
taxable period or portion thereof that ends on or before the
Effective Time;
(h) any qualifying event under COBRA occurring prior to the
Effective Time, pursuant to Section 9.1(g);
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(i) salary, wages, bonuses, payments, employment benefits or
contractual benefits provided by Unocal, pursuant to Section
9.1(h);
(j) severance benefits and unemployment compensation due or
claimed to be due by a Transferred Employee terminated within
four months of such employee's date of hire by Purchaser
pursuant to Section 9.1(i);
(k) except as provided in Section 2.4(b)(iv), any claim for
personal injury or property damage asserted by any third
party, their respective legal representatives, heirs,
beneficiaries, and estates, arising out of or resulting from
Unocal's and its agents, employees and contractors' negligent,
intentional, or otherwise legally actionable conduct in
performing this Agreement or any Related Agreement; and
(1) all losses damages or liabilities that might arise from
Purchaser's or any third party's rights in or use of any
transferred or licensed software.
7.2 Claims Regarding Exposure Before and After the Effective Time
For the purposes of any claim involving actual, threatened or alleged personal
injury arising from exposure to Chemical Substances or from exposure to
workplace conditions, the relevant event or occurrence for the purposes of this
Agreement only shall be deemed to be the exposure to the Chemical Substance and
not the manifestation of any alleged physical, chemical or biological response
to such exposure. By way of example, if such exposure time period were
determined or alleged to be both prior to and continuing on and after the
Effective Time, the obligations to the respective parties hereto would be
apportioned on the basis of the respective lengths and levels of exposure before
and exposure after the Effective Time.
7.3 Indemnification by Purchaser
From and after the Effective Time, subject to the provisions of this Article
Seven, Purchaser agrees to pay and to indemnify fully, hold harmless and defend
Unocal and its respective Affiliates, agents, officers, directors, partners,
employees, servants, Consultants, representatives, successors, and assigns, from
and against any and all claims based upon allegations of and/or Damages (Whether
based on negligent acts or omissions, statutory liability, strict liability or
otherwise) arising out of:
(a) any material inaccuracy or breach as of the Effective Time of any
representation or warranty of Purchaser contained in this Agreement
or any certificate delivered pursuant
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hereto and made at or as of the Effective Time or of any covenant or
agreement of Purchaser contained in this Agreement;
(b) except as otherwise specifically set forth in this Agreement, any
liability whatsoever (whether known, unknown, accrued, absolute,
contingent or otherwise) which arose or was incurred by Purchaser
and/or its Affiliates after the Effective Time or which results from
any violation of any Legal Requirement arising from Purchaser's use
of or conduct under any Permit that is, or the benefits of which
are, provided to Purchaser by Unocal and/or its Affiliates pursuant
to Section 5.5;
(c) Unocal's performance (to the extent such performance is related to
the Operations) under or any claim arising from Unocal's assignment,
transfer sublease or sublicense of any Contract pursuant to Section
9.5, including the reasonable out-of-pocket costs and expenses
incurred by Unocal in performing such Contracts (which costs shall
include, without limitation, payments due under such Contracts but
shall exclude those costs that are the result of Unocal's gross
negligence or willful misconduct);
(d) (i) any Assumed Liabilities, or
(ii) obligations with respect to the Assets or Operations
that are incurred by Purchaser at or after the Effective
Time;
(e) Taxes relating to the Assets or Operations that are incurred
after the Effective Time or attributable to any time after the
Effective Time;
(f) any loss and liability arising with respect to
(i) employee evaluation and selection actions of Purchaser
relating to those persons proposed to be the Transferred
Employees,
(ii) actions of Unocal and its employees with respect to the
selection and evaluation process and
(iii) the transfer of any personnel and/or benefit information
to Purchaser;
(g) any claim for personal injury or property damage asserted by
any third party, their respective legal representatives,
heirs, beneficiaries, and estates, arising out of or resulting
from Purchaser's and its agents, employees and contractors,
negligent, intentional, or otherwise legally actionable
conduct in performing this Agreement or any Related Agreement;
and
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(h) any loss, liability, expense or cost, including costs of suit
and reasonable attorneys fees, which Unocal incurs as a direct
or indirect result of Purchaser's sale or assignment of any
Asset, naming of a nominee or any actions taken by said third
parties with respect to the Assets; provided, however, that in
the event of an Assignment, in accordance with Section 10.7,
an assignment of an Option to Purchase Agreement, an
assignment of an Option to Assume Lease, or a sale of any
Asset by the Purchaser, this Section 7.3(h) shall not require
Purchaser to indemnify Unocal for any liability which would
have been a liability of Unocal under this Agreement if such
assignment or sale by Purchaser had not occurred.
7.4 Method of Asserting Claims, Etc.
The party or parties making a claim under this Article Seven is hereinafter
referred to as the "Indemnified Party" and the party or parties against whom
such claims are asserted under this Article Seven is hereinafter referred to as
the "Indemnifying Party". All claims by any Indemnified Party under this Article
Seven shall be asserted and resolved as follows:
(a) In the event that any claim or demand for which an
Indemnifying Party would be liable to an Indemnified Party
hereunder is asserted against or sought to be collected from
such Indemnified Party by a third party, such Indemnified
Party shall as promptly as is practicable after its receipt of
such claim or demand notify in writing the Indemnifying Party
of such claim or demand, specifying the nature of and specific
basis for such claim or demand and the amount or the estimated
amount thereof to the extent then feasible (which estimate
shall not be conclusive of the final amount of such claim and
demand) (a "Claim Notice"); Provided, however, that any
failure to give such notice will not waive any rights of the
Indemnified Party except to the extent that either the rights
of the Indemnifying Party are actually prejudiced or such
notice is not given within the applicable time periods set
forth in this Agreement.
Anything herein to the contrary notwithstanding, any Claim Notice
hereunder involving Environmental Cleanup Liability or Environmental
Claims which, despite Purchaser's reasonable efforts, does not cite,
or which mistakenly cites, an Environmental Law, shall not be deemed
inadequate, improper or deficient because of such failure or
mistake.
The Indemnifying Party may, and upon request of the Indemnified
Party shall, retain counsel of its choice to represent the
Indemnified Party and any others the Indemnifying Party may
reasonably designate in connection with such claim or demand and
shall pay the fees and disbursements of such counsel with regard
thereto; Provided, however, that any Indemnified Party is hereby
authorized
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prior to the date on which it receives written notice from the
Indemnifying Party designating such counsel to retain counsel whose
reasonable fees and expenses shall be at the expense of the
Indemnifying Party to file any action, answer or other pleading and
take such other action which it shall reasonably deem necessary to
protect its interests or those of the Indemnifying Party until the
date on which the Indemnified Party receives such notice from the
Indemnifying Party.
In the event that the Indemnifying Party shall retain such counsel,
the Indemnified Party shall have the right to retain its own counsel
but the fees and expenses of such counsel shall be at the expense of
the Indemnified Party unless
(i) the Indemnifying Party and the Indemnified Party shall
have mutually agreed to the retention of such counsel;
or
(ii) the named parties to any such proceeding (including, but
not limited to, any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would
involve such counsel in an actual or potential conflict
of interest in violation of applicable principles of
professional ethics.
The Indemnifying Party shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one such firm for all such
Indemnified Parties whether such fees or expenses constitute Damages
or otherwise. If requested by the Indemnifying Party, the
Indemnified Party agrees to cooperate with the Indemnifying Party
and its counsel in contesting any claim or demand that the
Indemnifying Party defends, or, if appropriate and related to the
claim in question, in making any counterclaim against the Person
asserting the third party claim or demand, or any cross-complaint
against any Person. If the Indemnifying Party has accepted
responsibility in writing, no claim or demand that would result in
an Indemnifying Party being liable hereunder may be settled without
the consent of the Indemnifying Party which consent shall not be
unreasonably withheld. Unless the Indemnifying Party shall have
agreed in writing that any and all Damages to the Indemnified Party
related to a claim or demand are fully covered by the indemnities
provided herein, no such claim or demand may be settled without the
consent of the Indemnified Party, which consent will not be
unreasonably withheld. Except with respect to settlements entered
into without the Indemnified Party's consent pursuant to the
immediately preceding sentence, to the extent it shall be determined
that the Indemnified Party shall have no right pursuant to this
Article to be indemnified by the Indemnifying Party, the
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Indemnified Party shall promptly pay to the Indemnifying Party
(i) any amounts previously paid or advanced by the
Indemnifying Party to the Indemnified Party with respect
to such matters pursuant to this Article plus
(ii) interest thereon until paid by the Indemnified Party at
the Base Rate for the period commencing on the date on
which such amount was paid or advanced and ending sixty
(60) days after the date on which it was finally
determined that the Indemnified Party had no such right
to be indemnified and at the Late Payment Rate
thereafter.
(b) In the event the Indemnified Party should have a claim against
the Indemnifying Party hereunder which does not involve a
claim or demand being asserted against or sought to be
collected from it by a third party, the Indemnified Party
shall as promptly as is practical send a Claim Notice with
respect to such claim to the Indemnifying Party; Provided,
however, that any failure to give such notice will not waive
any rights of the Indemnified Party except to the extent that
either the rights of the Indemnifying Party are actually
prejudiced or such notice is not given within the applicable
time periods set forth in this Agreement. If the Indemnifying
Party notifies the Indemnified Party within sixty (60) days of
receipt of such Claim Notice that it does not dispute such
claim, the amount of such claim shall be conclusively deemed a
liability of the Indemnifying Party hereunder and shall be
paid to the Indemnified Party immediately. If the Indemnifying
Party disputes such claim, such dispute shall be resolved by
good faith negotiations between the parties.
(c) From and after the delivery of a Claim Notice hereunder, at
the reasonable request of the Indemnifying Party, the
Indemnified Party shall grant the Indemnifying Party and its
representatives full and complete access to the books, records
and Properties of the Indemnified Party to the extent
reasonably related to the matters with which the Claim Notice
is concerned. The Indemnifying Party will not, and shall
require that its representatives do not, use (except in
connection with such Claim Notice) or disclose to any third
Person other than the Indemnifying Party's representatives
(except as may be required by applicable Legal Requirements)
any information obtained pursuant to this Section 7.4(c) that
is designated as confidential by the Indemnified Party, unless
such information is
(i) generally available to the public other than as the
result of a wrongful act or omission by the Indemnifying
Party
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(ii) already within Indemnifying Party, the knowledge of the
(iii) available to the Indemnifying Party through rights other
than provided in this Section 7.4(c), or
(iv) provided to the Indemnifying Party in writing by a third
party who is under no obligation to the Indemnified
Party to protect the confidentiality thereof.
All such access shall be granted during normal business hours, shall
be subject to the normal safety regulations of the Indemnified
Party, and shall be granted under conditions that will not interfere
with the business and operations of the Indemnified Party. Nothing
in this Section 7.4(c) shall expand or contract the rights or
obligations of the Indemnifying Party with respect to any
information previously provided to the Indemnifying Party pursuant
to any other confidentiality agreement.
7.5 Survival of Representations and Warranties: Limitation of Liabilities
Notwithstanding any investigation conducted or notice or knowledge obtained by
or on behalf of any party hereto, each representation, warranty, agreement or
covenant in this Agreement or in the Schedules or certificates delivered
pursuant to this Agreement which is not by its terms required to be fully
performed, or does not by its own terms expire, on or prior to the Effective
Time shall survive the Closing (including, but not limited to, the delivery and
acceptance of any deed or xxxx of sale at the Closing), provided however, that
Unocal may for its own purposes without affecting the enforceability of Section
3.5 amend its financial statements after the Closing.
7.6 Right to Cure
Any party that is obligated to indemnify, defend and/or hold harmless any party
pursuant to any provision of this Article Seven or any default of the provisions
of any Related Agreement shall have the right to cure, within a reasonable time
and in a manner reasonably satisfactory to such Person, any matter giving rise
to such obligation; provided, however, that any such cure shall not relieve or
reduce any such obligation to the extent that such cure is inadequate. The
Indemnified Party may, if there is no attempt to cure or if the cure is
inadequate, expend reasonable sums to cure which shall be reimbursed together
with interest at the Base Rate Nothing in this Section shall eliminate either
party's right to terminate pursuant to the terms in a Related Agreement.
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7.7 Construction Contracts
This Agreement' Related Agreements and Material Contracts, shall not be
considered construction contracts, for the purposes of the indemnifications
found therein.
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ARTICLE EIGHT - TERMINATION
8.1 Grounds for Termination
This Agreement may be terminated at any time prior to the Effective Time:
(a) By the written agreement of both Unocal and Purchaser;
(b) By either Purchaser or Unocal if a Judgment (other than a Judgment
for which the adverse consequences arising out of such Judgment are
immaterial to the respective Assets and/or Operations) has been
entered against Purchaser or Unocal restraining, prohibiting,
declaring illegal or awarding substantial damages in connection
with:
(i) any material part of the transactions provided for hereby or
by the Related Agreements;
(ii) the ownership by Purchaser (including enjoyment of all rights
relating thereto) of the Assets; or
(iii) the operation of any of the Operations by Purchaser;
(c) If the economic value of the Assets, Inventory and Operations is
reduced as a result of any damage by fire or other casualty:
(i) upon thirty (30) days' notice by Purchaser if such value is
reduced by more than one hundred thousand dollars ($100,000)
by any damage by fire or other casualty, Unocal elects
pursuant to Section 5.2(a)(iii) not to repair or replace the
affected assets and the parties have not reached agreement
within thirty (30) days after Purchaser's receipt of notice
from Unocal pursuant to Section 5.2(a)(iii); and
(ii) upon thirty (30) days' notice by either party to the other
party if such value is reduced by more than two million
dollars ($2,000,000);
(d) At the sole discretion of either Unocal or Purchaser in the event
the Closing shall not have occurred on or before March 31 1992;
(e) At the sole discretion of either Unocal or Purchaser, if any
applicable waiting periods or extensions thereof under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules
and regulations of the Federal Trade Commission thereunder shall not
have expired or been terminated by March 16, 1992.
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(f) If the facts and circumstances underlying any Proposed Amendment
would have a material and adverse effect on the Assets and/or Operations.
8.2 Effect of Termination
If this Agreement is terminated as permitted under this Section, such
termination shall be without liability of or to any party to this Agreement, or
any shareholder, partner, director, officer, employee, agent, servant,
consultant or representative of such party; provided, however, that, if
termination (other than as permitted in Section 8.1) shall result
(i) from the willful failure of either party to fulfill a condition
(with respect to which such party has the ability to fulfill) to the
performance of any other party, or
(ii) from the willful failure of either party to perform a covenant under
this Agreement,
then such party shall be fully liable for any and all Damages sustained or
incurred by the other party.
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ARTICLE NINE - ACTIONS AFTER THE CLOSING
Upon the condition that the Closing shall have occurred, Purchaser and Unocal
agree that.
9.1 Employee Benefit Matters
(a) Welfare Benefit Plans. Except as indicated below, the years of
service of Transferred Employees with Unocal and its Affiliates
("Prior Service") shall be recognized by Purchaser under its
employee welfare benefit plans and employment policies. Except as
otherwise specifically provided herein, Transferred Employees shall
be eligible for the coverage provided to similarly situated
employees of Purchaser under Purchaser's medical, dental, life
insurance (except for voluntary Accidental Death and Dismemberment
coverage), and long-term disability plans on the day following the
Closing Date; provided, however, that participation under the
long term disability plans shall only commence on the day following
the Closing Date if, as of that day, the Transferred Employees have
satisfied any applicable service requirements thereunder counting
the Prior Service and for those Transferred Employees who do not so
satisfy the service requirements, they shall become eligible to
participate under such plans pursuant to the otherwise applicable
plan terms.
(b) Retirement and Savings Plans. Except as otherwise provided in
Section 9.1(c), Prior Service shall be used by Purchaser for
purposes of vesting and eligibility of participation under
Purchaser's tax-qualified defined benefit and defined contribution
plans and not for any other purposes. Participation under such plans
shall only be available to those Transferred Employees employed in
classifications eligible for such participation.
(c) LESOP. Prior Service shall be used for purposes of satisfying
eligibility for participation but not for vesting under the Ashland
Oil, Inc. Leveraged Employee Stock Ownership Plan ("LESOP").
Transferred Employees who are salaried employees and meet the age
and service requirements under the LESOP as of the Closing Date
shall enter into LESOP participation on the first business day
following the Closing Date. All otherwise eligible Transferred
Employees who do not then meet such requirements and those
Transferred Employees who do not have an Employment Date within 30
days of the Closing Date shall commence participation under the
LESOP on the applicable plan entry date.
(d) Medical Plans. For purposes of determining the level of
reimbursements and/or other compensable benefits available under the
terms of the medical plans (but not including those providing dental
benefits) maintained by the
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which the Transferred Employees enroll, medical expenses actually
incurred during the calendar year 1992 which are applicable towards
the deductibles under the Unocal Medical Plan in which such
Transferred Employees participated shall count towards satisfying
applicable calendar year 1992 deductibles and out-of-pocket maximums
under the Purchaser's medical plans of the same type in which such
Transferred Employees enroll. Except to the extent which may be
otherwise provided below, the Unocal Medical Plan shall cover,
pursuant to its terms, all medical expenses incurred by eligible
participants up to and including the Closing Date. The Unocal
Medical Plan shall also cover the eligible expenses for inpatient
hospital stays of eligible participants which commenced on or prior
to the Closing Date until such participant is released from such
confinement. From the day after Closing Date, the medical plans of
Purchaser in which such Transferred Employees enroll shall cover,
pursuant to their terms, the medical expenses incurred from and
after such day except as limited by the preceding sentence. The
Transferred Employees who participated in health maintenance
organizations ("HMOs") on and prior to the Closing Date shall be
provided the opportunity to enroll in Purchaser's indemnity medical
plan on the same terms and subject to the same conditions as the
Transferred Employees who did not so participate in HMOs. Such
employees shall be offered participation in the HMOs available to
other similarly situated employees of the Purchaser at the time and
in the same manner as such participation is ordinarily offered.
Unocal agrees to extend retiree medical coverage to those
Transferred Employees who were eligible for such coverage had they
retired as of the Closing Date under the provisions of said medical
plan as in effect at the time coverage is elected and as may be
amended thereafter, and Unocal agrees that its medical plan will be
primary with respect to Purchaser's medical plans to the extent any
Transferred Employee is so covered after termination or retirement
from Purchaser. Notwithstanding anything to the contrary contained
herein with regard to the crediting of Prior Service with regard to
the Transferred Employees, no such Prior Service shall be credited
towards any Transferred Employee's eligibility to participate in a
welfare benefit plan providing coverage for retirees except that
those Transferred Employees with five or more years of Prior Service
shall receive credit for five years of Prior Service for purposes of
determining whether they satisfied any prerequisites with regard to
years of service with Purchaser for participation in any retiree
medical or retiree life plan.
(e) Vacation. Unocal shall pay, on or soon after the Closing Date, to
each Transferred Employee, the amount of each such employee's
accrued but unused vacation with Unocal through and including the
Closing Date as determined under the rules applicable to such
employees under Unocal's vacation policy. Such Transferred Employees
as are employed
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with Purchaser shall be entitled to take vacation with Purchaser,
through and including the end of the calendar year in which the
Closing occurs, without pay, in an amount equal to the number of
days represented by the accrued but unused vacation for which Unocal
paid to such employees, as described above. Effective January 1,
1993, such Transferred Employees shall be subject to the vacation
policy of Purchaser otherwise applicable to similarly situated
employees, counting such employee's Prior Service and their service
with Purchaser for this purpose.
(f) Sick Pay. Purchaser shall credit Transferred Employee under its sick
pay plan with the lesser of
(i) the number of non-occupational sick pay hours recognized for
such employee under the Unocal Sick Pay Plan as of Closing
Date,
(ii) the number of hours that would have accrued under Purchaser's
sick pay plan based on the Transferred Employee's Prior
Service or
(iii) 1200 sick pay hours.
Purchaser may adjust the sick pay hours credited to reflect the difference
in plan design.
(g) COBRA Continuation Rights. For purposes of COBRA health continuation
of coverage provisions contained in Section 4980B(f) of the Internal
Revenue Code of 1986 and in Sections 601-608 of the Employee
Retirement Income Security Act of 1974, any employee whose
employment terminates in connection with the consummation of the
transaction contemplated by this Agreement, whether or not such
employee is then employed by Purchaser, shall be considered to have
undergone a termination of employment. Purchaser shall have no
responsibility, obligation or liability under the said COBRA
provisions with respect to any such employee or any former employee
of Unocal or any of its Affiliates who terminated employment or
underwent any other qualifying event under COBRA prior to the
Closing Date.
(h) No Assumption of Liabilities. Regardless of whether any or all of
the Unocal employees associated with the Operations are employed by
Purchaser on or after Closing Date, Purchaser has assumed no
liability for any wages, bonuses, payments, employment benefits or
contractual benefits that were provided by Unocal or any of its
Affiliates to such employees (or former employees who were so
associated with the Operations) including, but not limited to,
retiree medical benefits, retiree life insurance benefits, COBRA
continued health benefits under Section 4980B(f) of the Internal
Revenue Code of 1986 and Sections 60l-608 of the Employee Retirement
Income Security Act of 1974, employment contracts qualified or non-
qualified
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deferred compensation benefits, severance benefits, disability
benefits, sickness benefits, vacation benefits and benefits which
could be payable with respect to services, expenses or other events
that occurred during any such employee's (or former employee's)
association with Unocal or any of its Affiliates under any plan,
policy, or program maintained by or contributed to by Unocal or any
of its Affiliates.
(i) Termination of Transferred Employees. Purchaser will evaluate all
Transferred Employees to determine, in its sole discretion, its
continued need for the position in which he or she is employed or
the individual employee's performance capabilities. Within four
months after any employee's date of hire by Purchaser, Purchaser may
notify Unocal in advance that Purchaser wishes to terminate any
Transferred Employee, and Purchaser will pay the employee severance
benefits, as described on Schedule 9.1(i), giving credit for the
employee's combined service with Unocal and Purchaser and using the
Transferred Employee's base pay as of the Closing Date. Unocal will
repay Purchaser for the amount of said benefits. Any Transferred
Employee who is terminated by Purchaser more than four months, but
less than sixteen months after such employee's date of hire by
Purchaser, will be paid severance benefits by Purchaser according to
the Unocal Termination Allowance Plan (a copy of which is included
in Schedule 3.12 giving credit for the employee's combined service
with Unocal and Purchaser and using not less than the employee's
base pay as of the Closing Date. No payment shall be made by Unocal
to Purchaser for said payment. Notwithstanding anything to the
contrary contained in Section 9.1(a) above, an employee will not
receive any benefits under Purchaser's severance benefits policy
during the periods described above.
(j) Purchaser will assume the responsibility to pay mortgage assistance
allowance payments which include Mortgage Rate Interest differential
and home cost increase supplement to Transferred Employees regarding
any moving policy payment due after the Closing and relating to
locations of such Transferred employees made by Unocal prior to the
Closing.
(k) Purchaser will assume the responsibility to pay all obligations to
Transferred Employees regarding any educational aid payments due
after the Closing and relating to educational aid commitments made
by Unocal to such Transferred Employees prior to the Closing. Unocal
will reimburse Purchaser for any such educational aid payment.
9.2 Further Assurances
Each of the parties hereto shall take such additional action, and Shall
cooperate with one another, as may be reasonably necessary to
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effectuate this Agreement and the Related Agreements and the transactions
contemplated hereby and thereby.
9.3 Payment of Transfer Taxes: Recording Fees
With respect to the transfer of the Real Estate, Purchaser shall pay directly or
reimburse Unocal within thirty (30) days of invoice
(i) all sums required to be paid to any state or local taxing
jurisdiction as sales tax on the transfer of tangible personal
property to the Purchaser;
(ii) any cost of recording the deeds; and
(iii) any survey expenses.
Real property transfer tax, documentary transfer tax or any other tax other than
federal, income tax or franchise tax on account of the consummation of the
transactions contemplated hereby shall be paid by the party responsible by law,
or in the absence of law, by local custom as set forth on Schedule 3.7(b), if
applicable.
9.4 Payment of Certain Expenses Due and Payable After the Effective Time:
Prepaid Expenses
(a) Purchaser shall pay as and when due all invoices and xxxxxxxx for ad
valorem taxes and assessments on all Assets and utility bills due
and payable after the Effective Time, and Unocal shall reimburse
Purchaser within thirty (30) days after invoice for any amounts
under such bills attributable to any period prior to the Effective
Time. To the extent any ad valorem tax xxxx represents an estimated
amount, Unocal and Purchaser shall make appropriate adjustments
within thirty (30) days after Purchaser's payment of the final tax
xxxx for the period in question.
(b) The categories of prepaid and accrued expenses listed on Schedule
9.4(b) shall be adjusted ratably between Unocal and Purchaser. The
party having paid such expense shall invoice the other and payment
shall be due thirty (30) days after receipt of the invoice.
(c) Notwithstanding the provisions of Sections 9.4(a) and (b), in no
event shall any reimbursement or adjustment be paid pursuant to this
Section 9.4 for any real estate tax bills or utilities bills that
are Assumed Liabilities.
9.5 Contracts Not Assigned at Closing
To the extent that any Contract that would otherwise be assigned Under this
Agreement is not capable of being assigned, transferred,
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subleased or sublicensed without the consent of or waiver by any other party
thereto or any other Person or if such assignment, transfer, sublease or
sublicense or attempted assignment, transfer, sublease or sublicense would
constitute a breach thereof or a violation of any Legal Requirement, this
Agreement shall not constitute an assignment, transfer, sublease or sublicense,
or an attempted assignment, transfer, sublease or sublicense of any such
Contracts. Unocal shall continue to use its reasonable efforts to obtain an
assignment to Purchaser of Contracts that but for the preceding sentence would
be assigned; provided, however, that Unocal and/or its Affiliates shall not be
required to pay any consideration or suffer any financial disadvantages to
obtain such assignment.
If any contract cannot be assigned, transferred, subleased or sublicensed,
Unocal will, after obtaining the written consent and complete release of Unocal
by the Person with whom it has contracted assign, if requested to do so by
Purchaser, those benefits, duties and obligations under said contract related to
the Chemicals Distribution Business to Purchaser. The refusal of any Person to
consent, whether in whole or in part, by the contracting Person will not create
any liability for Unocal. In the event of an assignment, transfer, sublease or
sublicense by Unocal to Purchaser, Purchaser will assume all related duties and
obligations of Unocal.
9.6 Undisclosed Material Contracts
If there exists at any time after the Effective Time Material Contracts which
existed on the Effective Time, were not listed on Schedule 2.4(b)(v)(A) and
relate primarily to the Operations then, subject to Section 9.5, Purchaser shall
have the option to either
(i) accept such Material Contracts and agree to discharge the
obligations of such Material Contract in exchange for an assignment
from Unocal of the benefits thereof if assignable; or
(ii) reject such Material Contract, without losing any right to claim
damages for Unocal's breach of any representation or warranty
applicable thereto, and have no duty to discharge the obligations of
such Material Contract and no right to the benefits thereof.
9.7 Casualty Repair: Taking Proceeds
(a) If Unocal repairs or replaces any Assets that are destroyed or
damaged in whole or in part by fire or other casualty pursuant to
Section 5.2(a), it shall repair or replace such Assets with
reasonable promptness.
(b) If any of the Assets suffer a taking by eminent domain prior to the
Effective Time, Unocal shall supply Purchaser
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with the proceeds of the taking as and when such proceeds are received by
Unocal, if Purchaser had so agreed to such arrangement pursuant to Section
5.2(b).
9.8 Adjustment to Payment by Purchaser
(a) As soon as posssible after the Closing, Purchaser shall calculate:
(i) the "Exact Inventory Value", which shall be equal to the value
of the Inventory as of the Effective Time calculated as
provided below:
(A) Representatives of Unocal and Purchaser shall
immediately prior to or as soon as possible after the
Closing Date, jointly inspect, measure, take and compute
such inventory, determine what constitutes Inventory,
and shall value the Inventory for the purposes hereof in
accordance with the following valuation methods:
(1) hydrocarbon solvent products, including Inventory
intransit to a facility, supplied solely from The
UNOVEN Company shall be valued as follows:
For the products listed below under the heading
"Aliphatics", Inventory shall be valued on a facility by
facility basis at Unocal's average weighted bulk cost of
acquisition of Regular Mineral Spirits (Product Code
11005) including freight, if any, plus the "Add Charge"
for each listed product. In the event Regular Mineral
Spirits is not inventoried at any location, the average
weighted bulk acquisition cost of Mineral Spirits 75
(Product Code 11006) including freight, if any, shall be
used.
Aliphatics Code Add Charge
---------- ---- ----------
Mineral Spirits 66/3 11104 $ .02 per gal.
Naphthol Spirits 66/3 11103 .035
140 Solvent 66/3 11106 .25
Special Naphtholite
66/3 11101 .02
Rubber Solvent 11001 .05
Lactol Spirits 11135 .05
Roto Solv 11130 .10
Hexane 11487 .10
Heptane 11483 .13
Textile Spirits 11120 .10
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For Toluene (Product Code 11410) and Xylene (Product
Code 11420), Inventory shall be valued as follows:
Inventory Value = XxXxxx'x price + $.05 per
gallon
Where XxXxxx'x price shall be determined by adding the
simple average of the weekly FOB U.S. Gulf Coast spot
barge prices for Nitration Grade Toluene and for Mixed
Xylenes, respectively, for the weeks ending during the
month of Closing as published by XxXxxx and Company in
the "Toluene and Xylene Newsletter". If the newsletter
provides a range of prices, the average of all prices
quoted shall be used.
(2) All other Products in Inventory, including
Inventory intransit to a facility, shall be valued
at Unocal's average weighted cost of acquisition,
including freight, if any, on a facility by
facility basis, of such Inventory for the month of
Closing if Closing is on or after the sixteenth
day of the month or the month prior to Closing if
closing is prior to the sixteenth day of the
month.
(3) The value of Inventory packaged by Unocal shall
include the cost of drums, pallets, and other
packaging materials each at Unocal's average
weighted cost of acquisition for the month of
Closing.
(4) For the purpose of valuation of items in category
2, and 3 above, if any particular product or
packaging item was not purchased in the month of
Closing, the most recent invoice price and freight
cost, if any, will be applied.
(B) If there shall be a dispute as to the quantities of
Inventory, such dispute shall be settled by recounting
until there is agreement between the parties. If there
shall be a dispute as to what constitutes Inventory or
to the valuation thereof, such dispute shall be settled,
if possible, by an agreement of the representatives of
the parties, failing which an independent accounting
firm mutually
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agreeable to Unocal and Purchaser, shall decide such a
dispute.
(C) Physical inspection of the Inventory shall include
all bulk and packaged raw materials,
work-in-process, intermediates, finished goods and
containers at each Unocal Inventory stocking
location. Quantities of material intransit shall
be determined by transactional records and
reports. Bulk Inventory will be determined by tank
measurement by sticking the tanks and temperature
correction; packaged inventory by physically
counting and tagging all containers. Both parties
must agree in writing to the Inventory count at
the time of the inspection with no allowance for
further changes.
(ii) The "Exact Trade Accounts Receivable Value", shall
be equal to the value of the Trade Accounts
Receivable as of the Effective Time taken from the
books and records of Unocal; and
(iii) the "Exact Trade Accounts Payable Value", shall be
equal to the sum of all individual Trade Accounts
Payable transactions related to the Assets and
Operations as of the Effective Time taken from the
books and records of Unocal.
(b) Within fifteen (15) business days after Closing Unocal shall submit
to Purchaser the results of each amount determined in Section
9.8(a), including the total, and the details of the calculation of
the Working Capital Balance.
(c) If the Working Capital Balance is positive, then within ten (10)
business days after delivery of Unocal's calculation of the Working
Capital Balance, Purchaser shall pay to Unocal an amount equal to
the Working Capital Balance together with interest thereon at the
Base Rate for the period from the Effective Time through the date on
which such payment is made. If the Working Capital Balance is
negative, then within ten (10) business days after delivery of
Unocal's calculation of the Working Capital Balance, Unocal shall
pay to Purchaser an amount equal to the absolute value of the
Working Capital Balance together with interest thereon at the Base
Rate for the period from the Effective Time through the date on
which such payment is made.
(d) For purposes of this Agreement, purchases and sales of goods shall
be deemed to occur on the date title to the goods is transferred.
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9.9 Uncollected Trade Accounts Receivable
Purchaser shall use reasonable efforts to collect said Trade Accounts
Receivable. Unocal shall forthwith reimburse Purchaser the amount of each Trade
Account Receivable that has not been actually collected by Purchaser within 45
days following the individual Trade Accounts Receivable Due Date(s) established
by Unocal, which Purchaser notifies and reassigns to Unocal within 75 days from
the Due Date. Said payment shall include interest on the amount reimbursed at
the Base Rate for the period from the Due Date through the date on which payment
is made. Purchaser will apply all payments received first to the oldest accounts
unless specifically instructed otherwise by the customer.
9.10 Reimbursement for Certain Items
For a period of 4 months following the Closing Date, Unocal will reimburse
Purchaser for:
(a) All costs, including but not limited to, refund of purchase price
and costs of disposal, relating to the return of products of the
Chemicals Distribution Business sold and delivered to customers and
paid for by them prior to the Closing Date;
(b) Offsets, reductions and the like taken by customers of Unocal or its
Affiliates against the Chemicals Distribution Business sales; and
(c) Excess Trade Accounts Payable to the extent not adjusted or paid as
set forth in Section 9.8(c) or (e).
9.11 Cooperation
(a) Unocal and Purchaser will provide each other with such cooperation
and information as they may reasonably request of the other with
regard to a Claim subject to this Agreement or in conducting an
audit or other proceeding in respect of Taxes. Such cooperation
shall include, but not be limited to, making employees available on
a mutually convenient basis to provide information regarding events
relevant to the Claim, or explanation of any documents or
information provided hereunder. Purchaser and Unocal shall not
interfere with each other's performance of any Retained Liabilities
or Assumed Liabilities under this Agreement.
(b) With respect to any Retained Liabilities by Unocal for any
Environmental Claims, Environmental Cleanup Liability, Environmental
Compliance Costs or any claim arising out of Environmental Laws,
Purchaser shall:
(i) allow Unocal and its agents access to any facility:
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(ii) assist Unocal, as requested, in negotiations with third
parties;
(iii) make all books and records related to products, environmental
incidents and other documents related to Chemical Substances
available to Unocal;
(iv) allow Unocal reasonable use of its Real Estate for the purpose
of investigations, construction, repairs, maintenance and
remedial action with respect to the above Claims without rent
or other charge.
(c) Any information obtained under this Section 9.11 shall be kept
confidential, except as may be otherwise necessary in connection
with the handling of a Claim, the conduct of an audit, or other
proceeding.
(d) Each party shall bear all costs and expenses incurred as a result of
its request for assistance over and above the Further Assurances or
cooperation contemplated in Sections 9.2 or this Section 9.11.
(e) (i) With respect to all sites acquired by Purchaser under this
Agreement, nothing herein shall prevent Purchaser from making any
report or performing any act which, in Purchaser's sole discretion,
it determines is required by law; provided however, without limiting
said discretion, that where circumstances reasonably permit,
Purchaser shall first inform consider its views, including any offer
said report or perform said act by Unocal where said report or act
may be related to Retained Liability, Claim or to Purchaser's
knowledge, potential Claim against Unocal. In any event, except for
a Release after the Effective Time as provided below, Purchaser
shall simultaneously with any report to a government agency of any
information which may be related to a Retained Liability, Claim or
potential Claim against Unocal, report such information to Unocal,
including but not limited to copies of all written materials
provided to the agency. All Releases after the Effective Time
reportable to a governmental agency shall be reported to Unocal, as
soon as practical but in any event within two (2) business days
after the Release;
(ii) Further, Purchaser shall maintain a program to record all
observable and otherwise detected Releases, including time, date,
specific location, Chemical Substance, quantity, source, cause, and
witnesses, test data, and measurements where applicable. Such
information and related reports and investigations shall be
maintained in a readily accessible manner and available to audit by
Unocal on request. The program described in this Section shall
continue and all such
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77
information described in this Section shall be retained until all
obligations of Unocal under this Agreement are satisfied. Unocal
shall meet all requirements of this Section 9.11(e) as to each
Category B Property, subject to audit by Purchaser until title to
the specific Property is transferred or the Option to Purchase
Agreement or Option to Assume Lease for said Property expires.
Purchaser may also audit all historical data, to the extent
available, subject to this Section 9.11(e)(ii), as to both Category
A and B Properties.
(f) Except as provided in Section 9.11(e) and (f), with respect to
Unocal's Retained Liabilities, or Claims or potential Claims against
Unocal under this Agreement, Purchaser will not communicate with any
government agency except as agreed to by Unocal in writing, or
otherwise seek to influence the remedy selection or requirements of
any Workplan, order, or permit issued by or subject to approval by
any government agency. Nothing in the foregoing shall limit
Purchaser's right to seek to influence the content of any
legislative or regulatory proposal. Unocal shall copy Purchaser on
all written correspondence with government agencies relating to
Workplan requirements. Unocal also shall keep Purchaser advised on
all material Workplan proposals. Purchaser may submit written
suggestions with respect thereto. Unocal will not unreasonably
refuse to accept the suggestions of Purchaser with respect thereto;
provided, however, that the decision of Unocal to submit to the
appropriate governmental agency, and to proceed with any Workplan
which is approved (or subsequently approved) by the appropriate
governmental agency shall be presumed to be reasonable subject to
rebuttal by Purchaser, provide further, that said presumption shall
not apply to any proposed Workplan requirements which Purchaser
shows will materially interfere with the operations of Purchaser at
such site.
9.12 Preparation of Returns
Unocal shall be responsible for filing all ad valorem tax returns for Assets
held on assessment date January l, 1992, or such other assessment date prior to
the Effective Time. Purchaser shall be responsible for filing all other returns
required to be filed with respect to the Assets after the Closing Date, except
those returns that Unocal is required by federal, state or local laws to file
upon disposition of the Assets and Operations. Unocal will reimburse Purchaser
within thirty (30) days after detailed invoice for any taxes paid (other than
interest and penalties) to the extent attributable to the Assets for any time
prior to the Effective Time. Purchaser will reimburse Unocal within thirty (30)
days after detailed invoice for any taxes paid (other than interest and
penalties) to the extent attributable to the Assets for any time after the
Effective Time.
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9.13 Removal of Non-Conforming Inventory and Stored Waste
Subject to Purchaser's obligations under this Agreement with respect to Taking
Category B Properties Out of Service, within ninety days after the actual
transfer of an individual parcel of Category A Property or Category B Property
to Purchaser, or within the time required by Environmental Laws, whichever is
earlier, Unocal will remove all Non-Conforming Inventory and Waste remaining at
such location and, at Unocal's sole cost and expense, sell or dispose of the
same in accordance with Environmental Laws and Legal Requirements. All risk of
loss and responsibility for such NonConforming Inventory and Waste shall be the
sole responsibility of Unocal. Nothing herein shall accelerate the time for
Unocal to respond to any Environmental Cleanup Liability or affect the
obligation of Purchaser to comply with the Claim Notice procedure in Article
Seven with respect to any Environmental Cleanup Liability or limit any
investigation or remedial action (including the storage, handling, treatment or
disposal of materials generated in the course of Unocal's performance of such
investigation or remedial action) pursuant to a Workplan (including a Workplan
covering investigation) as defined in Section 2.6.
9.14 Carteret
Once unocal's Environmental Cleanup Liability is satisfied, Purchaser shall add
or substitute its name on any consent order or Workplan and will provide
adequate bond letter of credit or other security as determined by the relevant
authorities which shall be sufficient to allow Unocal to remove or cancel any
such bond, letter of credit or other security it has in effect.
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ARTICLE TEN - MISCELLANEOUS
10.1 Like Kind Exchange
Unocal shall have the option, at or before Closing, to structure the closing of
this transaction in such a manner so as to qualify, in whole or in part, as a
like kind exchange pursuant to Section 1031 of the Internal Revenue Code of 1986
(as amended). Purchaser will cooperate with Unocal in facilitating a like kind
exchange. If Unocal desires such an exchange, Unocal shall timely notify
Purchaser, in writing, of its intent and Unocal shall be responsible for
arrangement of the structure of the exchange, compliance with time limits on
like kind exchanges, the preparation of the appropriate documents to complete
the transaction, and all additional costs, including costs to Purchaser,
directly related thereto.
10.2 Publicity
At all times prior to the Closing Date, Unocal and Purchaser shall cooperate
with the other in the development and distribution of all news releases and
other public disclosures relating to the proposed transactions and to ensure
that no such releases or disclosures are made without prior notice to the other
party; provided that any party may make all disclosures which in its reasonable
opinion are required or prudent under applicable Legal Requirements, including,
but not limited to, regulations of the Securities and Exchange Commission.
10.3 No Shopping
Prior to the Closing Date or termination of this Agreement, Unocal agrees that
it shall not, directly or indirectly,
(a) solicit or initiate the submission of proposals or offers from any
other Person relating to a possible disposition of any of the Assets
or Operations;
(b) solicit, initiate or enter into discussions relating to a possible
disposition of any of the Assets or Operations;
(c) furnish to any other Person any information (not already in the
public domain) relating to the Assets or Operations; or
(d) assist, participate in, facilitate or encourage any effort or
attempt by any other Person to do or seek any of the foregoing,
except in each case as may be required by any applicable Legal
Requirement or in connection with contractual obligations entered
into in the ordinary and usual course of business.
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10.4 Confidentiality. Nondisclosure and Noninterference
(a) Each of Unocal and Purchaser (and their respective Affiliates)
acknowledges that the information and materials (collectively, the
"Confidential Information") disclosed or made available to it by,
and relating to, the other (and its Affiliates) prior to the Closing
Date is confidential.
(b) Each of Unocal and Purchaser (and their respective Affiliates) shall
use reasonable efforts not to make any disclosure of the
Confidential Information to any Person other than officers,
employees, advisers and representatives to whom such disclosure is
necessary or convenient for the completion of the transactions
contemplated by this Agreement or any of the Related Agreements and
except as may be required by a court of competent jurisdiction or
governmental agency. Each of Unocal and Purchaser (and their
respective Affiliates) shall appropriately notify each officer,
employee, adviser and representative to whom any such disclosure is
made that such disclosure is made in confidence and shall be kept in
confidence.
(c) Each of Unocal and Purchaser (and their respective Affiliates)
agrees to use diligent efforts in accordance with customary and
reasonable commercial practice and at least with the same degree of
skill and care that it would manifest in protection of its own
confidential information to protect the Confidential Information.
(d) Each of Unocal and Purchaser (and their respective Affiliates) shall
notify the other promptly in the event that it becomes aware of the
unauthorized possession or use of the Confidential Information (or
any part thereof) by any third Person, including any of its
officers, employees, advisers or representatives. Each of Unocal and
Purchaser (and their respective Affiliates) shall cooperate with the
other in connection with the other's efforts to terminate or prevent
such unauthorized possession or use of its Confidential Information.
Each of Unocal and Purchaser (and their respective Affiliates) shall
pay the other's reasonable out-of-pocket expenses in so cooperating
with the payor in protecting its Confidential Information unless the
unauthorized possession or use of the Confidential Information
resulted from the willful misconduct or gross negligence of the
party otherwise entitled to reimbursement of its expenses.
(e) Each of Unocal and Purchaser (and their respective Affiliates)
acknowledges that the other will suffer injury for which the other
will not have an adequate remedy at law in the event of a breach of
the provisions of this Section 10.4, and that the other shall be
entitled to injunctive relief as is reasonably necessary to prevent
or curtail such breach, whether actual or threatened; provided that,
in no event (including, but not limited to a willful breach of
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81
this Agreement by Unocal or Purchaser, respectively) shall Unocal or
Purchaser (or their respective Affiliates) be prevented from exercising
all of the rights granted to it hereunder.
(f) Notwithstanding any other provision of this Agreement, the
obligations of each of Unocal and Purchaser (and their respective
Affiliates) to maintain the confidentiality of the Confidential
Information shall not apply to any portion of the Confidential
Information that:
(i) was in the public domain at the time of its disclosure to such
party;
(ii) enters the public domain through no fault of such party;
(iii) was communicated to such party by a third party free of any
obligation or confidence known to such party;
(iv) was developed by officers, employees or advisers or
representatives of such party independently of and without
reference to the Confidential Information; or
(v) was in the possession of such party prior to its disclosure to
such party by the other party.
(g) The obligations of Unocal and Purchaser (and their respective
Affiliates) pursuant to this Section 10.4 shall survive the Closing
and the consummation of the transactions contemplated by this
Agreement or any of the Related Agreements with respect to
Purchaser. After the Closing, Purchaser shall be free of any
obligation with respect to confidential information related to the
Chemicals Distribution Business. In the event of any inconsistency
between the provisions of this Section 10.4 and the confidentiality
provisions of any Related Agreement, the provisions of the Related
Agreement shall control with respect to any matters addressed by
such Related Agreement.
(h) The provisions of Section 10.4 supersede the July 1, 1991
confidentiality agreement entered into between Unocal and Purchaser.
(i) Unocal and its Affiliates shall after the Closing Date hold in
strictest confidence, and not disclose (except as may be
required by law or becomes lawfully obtainable from other
sources), confidential data, and other information relating to
the Chemicals Distribution Business including but not limited
to the finances, products, services, representatives,
suppliers. distributors and customers of the Chemicals
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Distribution Business or comprising any part of the Assets and
Operations; and
(ii) Unocal and its Affiliates shall not, for a period of five
(5) years after the Closing Date, without the prior written
consent of Purchaser, directly or knowingly induce any supplier,
employee, agent or other representative or associate of Purchaser
involved in the Chemicals Distribution Business as conducted by
Purchaser to terminate their relationship with Purchaser.
10.5 Costs and Expenses
Except as expressly provided herein or in any Related Agreement, each of the
parties to this Agreement and the Related Agreements shall bear its own expenses
incurred in connection with the negotiation, preparation, execution and closing
of this Agreement and the Related Agreements and the transactions provided for
hereby and thereby.
10.6 Notices
All notices or other communications required or permitted by this Agreement
shall be effective upon receipt and shall be in writing and personally delivered
or mailed by registered or certified mail, return receipt requested, or sent by
telex or facsimile, as follows:
If to Unocal:
Union Oil Company of California
0000 X. 0xx Xxxxxx, X.X. Xxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President, Corporate Budgets, Planning
and Economics
Telex: 188334
Facsimile: (000)000-0000
With a copy to:
Union Oil Company of California
0000 X. 0xx Xxxxxx, X.X. Xxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Telex: 188334
Facsimile: (000)000-0000
If to Purchaser:
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83
Ashland Chemical, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attn: President
Telex: 245385
Facsimile: (000)000-0000
With a copy to:
Ashland Chemical, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attn: General Counsel
Telex: 245385
Facsimile: (000) 000-0000
or to such other address as hereafter shall be furnished as provided in this
Section 10.6 by any of the parties hereto to the other parties hereto.
Notification shall be in accordance with Section 10.17.
10.7 Assignment
(a) Except as provided in Section 10.7(c) or the Options to Purchase
Agreement and the Options to Assume Lease, neither Unocal nor
Purchaser can assign any of its rights or benefits or delegate any
of its duties or obligations hereunder without the prior written
consent of the other, and any attempted assignment or delegation
which is not permitted under such Section shall be null, void and
without effect. Such consent shall not be unreasonably withheld.
(b) This Agreement may be assigned by Purchaser to an Affiliate of
Purchaser or upon the merger, consolidation or transfer by Purchaser
of all or substantially all of the assets of the Chemicals
Distribution Business to which this Agreement relates. The rights,
benefits, duties and obligations of each party hereto shall inure to
the benefit of, and be binding upon, any successors, assigns or
delegates permitted under Section 10.7(c).
(c) Any party hereto may delegate any of its duties or obligations
hereunder to any Person, but except as otherwise provided herein
such party shall remain liable for the full performance of such
duties and obligations. Unocal may assign its rights, benefits,
duties and obligations under this Agreement without Purchaser's
prior written consent if Unocal elects to structure the Closing as a
like kind exchange, as provided in Section 10.1. Any party hereto
may assign or delegate any of its rights, benefits, duties or
obligations hereunder
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84
(i) to any Person if it has received the prior written consent
provided for in Section 10.7(a),
(ii) to its legal successor if it merges (whether or not it is the
surviving corporation) or consolidates with one or more other
corporations or
(iii) to any Person to whom it has made any sale, lease, transfer or
other disposition of all or substantially all of its assets;
provided, however, that no party may make an assignment or delegation
described in clauses (ii) and (iii) above unless there are delivered to
the other parties hereto such written assumptions, affirmations and/or
legal opinions as such other parties may reasonably request to preserve
their rights and remedies hereunder.
10.8 Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute a single
instrument.
10.9 Entire Agreement
This Agreement sets forth the entire understanding and agreement between the
parties as to the matters covered herein and supersedes and replaces any prior
understanding, agreement discussion, negotiation or statement of intent, whether
written or oral.
10.10 Headings
The headings contained in this Agreement are for convenience of reference only
and do not qualify or affect in any way the meaning or interpretation of this
Agreement.
10.11 Schedules
The Schedules and Exhibits contained in the executed bound volumes shall be
deemed to be a part of this Agreement. The listing of any item on a Schedule or
Exhibit to this Agreement does not constitute an admission by the party
providing the Schedule that such item is material to the Assets and/or
Operations.
10.12 Governing Law
This Agreement shall be construed and enforced in accordance with, and governed
by, the laws of the State of California as though all parties had created it
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10.13 No Third Party Rights
This Agreement is intended to be solely for the benefit of the parties hereto
and is not intended to confer any benefits upon, or create any rights in favor
of, any Person other than the parties hereto, except as expressly provided to
the contrary elsewhere in this Agreement.
10.14 Limitation of Liability
Nothing contained in this Agreement will restrict either party from initiating
any action seeking specific performance or injunctive relief for the breach of
any of the terms of this Agreement.
10.15 Waivers and Amendments
No waiver of any portion of this Agreement shall be deemed to have been made by
any party of any of its rights under this Agreement unless the same shall be by
a written notice that expressly refers to this Section and is signed on its
behalf by its authorized officer. 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 such waiver in any other respect or
at any other time. This Agreement shall not be amended or modified except by an
instrument in writing signed by the party against whom enforcement is sought.
10.16 Severability
If and to the extent that any court of competent jurisdiction holds any
provision (or any part thereof) of this Agreement or Related Agreements to be
illegal, invalid, void or unenforceable, such holding shall in no way affect the
validity and enforceability of the remainder of this Agreement or Related
Agreements to the fullest extent permitted by law as if this Agreement or
Related Agreements did not at the time of execution contain the part, term or
provision held to be invalid.
10.17 Time Computation
In the computation of any period of time provided for in this Agreement or by
law, the day of the act or event from which said period of time runs 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 until the end of
the next day which is a business day. The term "business day" as used herein
means a calendar day other than a Saturday, Sunday or legal holiday observed by
the Lawyers Title Insurance Company.
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86
correctness of any report or payment under this Article, or to obtain
information as to the amounts payable in case of failure to report or pay. Any
such accountant shall sign a confidentiality agreement agreeable to Unocal
prior to his or her access to any Unocal document or information.
12.5 This Article 12 shall be binding upon Unocal and its Affiliates, and
upon the successor to, or tansferee of, substantially all the business
comprising Unocal's hydrocarbon sales business, and to Unocal's assignee of
the Hydrocarbon Supply Agreement, or either of them.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the
date first written above.
ATTEST: UNION OIL COMPANY OF CALIFORNIA
/s/ By: /s/
----------------------------- ---------------------------------
Title: Group Vice President
------------------------------
ATTEST: ASHLAND CHEMICAL, INC.
/s/ Xxxxxx X. X'Xxxxx By: /s/
----------------------------- --------------------------------
Assistant Secretary Title: Group Vice President
------------------------------
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87
(UNOCAL LETTERHEAD)
February 14, 1992
Xxxxxxx X. Askettle
Group Vice President
Ashland Chemical, Inc.
P. O. Xxx 0000
Xxxxxxxx, Xxxx 00000
Dear Xx. Xxxxxxxxx:
In accordance with Article IV (Successor Clause) of the Agreement between Unocal
Chemicals Division, Union Oil Company of California, representing our
Conshohocken Distribution Plant and Truck Drivers, Chauffeurs and Helpers Local
Union No. 384, (affiliated with the Eastern Conference of Teamsters and
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America located in Norristown, Pa.), this letter shall constitute notice of the
existence of said Agreement.
Very truly yours,
/s/ N.E. Xxxxx
---------------------
NEL/sl
cc: Truck Drivers, Chauffeurs
and Helpers Union No. 384
88
LIST OF EXHIBITS
Exhibit A - Asset Xxxx of Sale
Exhibit B - Assets Transferred
Exhibit C - Inventory Xxxx of Sale
Exhibit D - Kansas City Lease
Exhibit E - Software License Agreement
Exhibit F - Options to Purchase
Exhibit G - Options to Assume Leases
Exhibit H - Trade Accounts Payable Assumption
Exhibit I - Trade Accounts Receivable Assignment
Exhibit J - Operating Agreement
Exhibit K - Hydrocarbon Supply
Exhibit L - Assignment and Assumption of Leases
Exhibit M - Taking Category B Property Out of Service
Exhibit N - Deeds
Exhibit O - The Offer Letter
Exhibit P - Opinion of Counsel for Unocal
Exhibit Q - Opinion of Counsel for Purchaser
Exhibit R - Bridging Services Agreement
Exhibit S - Carteret Operating Agreement
Exhibit T - Certificate of No Additional Liens and
Encumbrances
Exhibit U - Clark, New Jersey Sublease
Exhibit V - Conshohocken Operating Agreement
