Exhibit 10.16
This instrument prepared by and
when recorded, please return to:
Elizabeth B. Chandler, Esq.
Troutman Sanders LLP
600 Peachtree Street, Suite 5200
Atlanta, Georgia 30308-2216
EASEMENT DEED
WITNESSETH this Easement Deed ("Easement Deed") by and between Scott
Paper Company and Mobile Energy Services Company, L.L.C., dated as of the 8th
day of December, 1995.
R E C I T A L S
(i) Scott Paper Company ("Scott") is a Pennsylvania corporation with
an office at Scott Plaza, Philadelphia, Pennsylvania 19113-1585;
and
(ii) Mobile Energy Services Company, L.L.C. ("MESC"), is an Alabama
limited liability company whose principal place of business is at
200 Bay Bridge Road, Mobile, Alabama 36652; and
(iii)Scott owns Lots 8, 10, and 11 (separately, "Lot 8," "Lot 10," or
"Lot 11," Lot 8 and 11 together, "Lots 8 and 11") of the Scott
Paper Company Subdivision (the "Scott Subdivision") as shown on a
plat thereof recorded in Map Book 64, page 39, in the Office of
the Judge of Probate of Mobile County, Alabama; and
(iv) By lease agreement ("MESC Lease") dated as of December 12, 1994,
Scott leased and demised unto Mobile Energy Services Holdings,
Inc. ("MESH") (formerly known as "Mobile Energy Services Company,
Inc.") portions of Lot 11, a memorandum of which is recorded in
Real Property Book 4222, page 1248, in the Office of the Judge of
Probate of Mobile County, Alabama; and
(v) By bill of sale dated as of December 12, 1994, and pursuant to
the Asset Lease Assumption Agreements, Scott transferred to MESH
various utility and recovery pipes, structures, and equipment
(collectively, the "MESC Equipment") situated upon the Leased
Premises and upon Lots 8 and 11; and
(vi) Scott, MESH and S.D. Warren Company entered that certain
unrecorded Master Operating Agreement ("Master Operating
Agreement") dated as of December 12, 1994; and
(vii)By Omnibus Deed, Bill of Sale, General Assignment and
Conveyance, dated as of July 14, 1995, MESH transferred the MESC
Equipment to MESC and assigned all of MESH's right, title, and
interest in and to the MESC Lease; and
(viii) By Second Amendment to Supplementary Lease Agreement, dated as
of August 1, 1995, Scott and MESC amended the MESC lease to
substitute for the Original
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Leased Premises the legal descriptions which are attached
hereto as Exhibit "A" and by this reference incorporated
herein (collectively, the "Leased Premises"), a memorandum of
which is recorded in Real Property Book ___, page ___, in the
Office of the Judge of Probate, Mobile County, Alabama
records; and
(ix) Scott and MESC agree that MESC may need access to (1) various
utility and recovery pipes, structures, and equipment
(collectively, the "Pulp Mill Utility Equipment") that benefit
the Leased Premises and that are situated upon Lots 8 and 11,
and/or (ii) certain services utilized by MESC employees, invitees
and/or licensees ("Utilized Services") performed or provided for
the benefit of the Leased Premises at facilities situated upon,
or to which access is obtained through and/or over, Lot 8, Lot
11, and/or Lots 8 and 11, and (iii) the Leased Premises; and
(x) MESC acknowledges that it is aware that Scott intends to
construct a clarifier on the portion of Lot 11 (the "Clarifier
Site") to the north and the west of Parcel II of the Leased
Premises in the vicinity of "Landing Lane" west of its
intersection with "Environmental Land", and MESC agrees that it
will select routes for the various services across Lot 11 to and
from Parcel II of the Leased Premises that will not occupy the
Clarifier Site; and
(xi) Capitalized terms used herein that are not otherwise defined
herein shall have the meanings given in Exhibit A to the Master
Operating Agreement; and
AGREEMENTS
AND
GRANTS OF EASEMENTS
1. Scott and MESC hereby agree that the RECITALS hereto, Exhibit "A"
hereto, the Master Operating Agreement, and Exhibit "A" to the Master Operating
Agreement shall be, and hereby are, incorporated herein as a part of this
Easement Deed.
2. For and in consideration of the premises, the mutual covenants
herein contained, the sum of Ten and No/100ths Dollars ($10.00), and other good
and valuable consideration in hand paid to Scott by MESC, the receipt and
sufficiency of which Scott hereby acknowledges and confirms, Scott does, subject
to the reservations and restrictions set forth herein, hereby grant, bargain,
sell, and convey unto MESC a non-exclusive easement upon, over, beneath, and
across Lot 11, as indicated below (excluding the Clarifier Site) (and Lots 8
and/or 10 where indicated below), for the following purposes:
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a. Ingress to and egress from, and for operation and use of, all pipes
located on the Lots 8 and 11 utilized by or in connection with the
Leased Premises;
b. Pedestrian and vehicular ingress to and egress from the Leased
Premises and the buildings and facilities at which the Utilized
Services are provided or performed, over that part of Environmental
Lane situated in Lot 10 and all present and future roads located on
Lot 11, including (except as to "Landing Lane," west of its
intersection with "Environmental Lane") and otherwise without
limitation, all of the roads shown as being located on Lot 11 at the
Pulp Mill on the Scott Paper Company Mill Wide Road Plan, Drawing
A52045, prepared by BE&K Engineering Company in February, 1991, and
revised on February 26, 1991, April 23, 1991, and August 8, 1993;
c. Ingress to and egress from the location of, and for the support,
use, installation (in such location(s) thereof as to be mutually
agreed upon by Scott and MESC), repair, replacement, alteration, and
restoration, of the electrical wiring and facilities owned by MESC and
located on Lot 8 and/or Lot 10 and/or Lot 11 for the use of the Leased
Premises;
d. Ingress to and egress from the location of, and for the
installation, operation and maintenance of a storm sewer system in
such location(s) thereof as to be mutually agreed upon by Scott and
MESC to benefit Parcel II of the Leased Premises on, under, over, and
across: (i) that part of Lot 11 lying due east of Parcel II of the
Leased Premises; and (ii) if a storm sewer connection exists as of the
date hereof on Lot 10, that part of Lot 10 between such existing storm
sewer connection and Parcel II of the Leased Premises;
e. Ingress to and egress from the location of, and for the
installation, operation and maintenance of a potable water system to
benefit Parcel II the Leased Premises on, under, over and across Lot
11 (excluding the Clarifier Site) in such location(s) as to be
mutually agreed upon by Scott and MESC;
f. Ingress to and egress from the location of, and for the
installation, operation and maintenance of a process sewer system in
such location(s) as to be mutually agreed upon by Scott and MESC to
benefit Parcel II of the Leased Premises on, under, over, and across:
(i) Lot 11 (excluding the Clarifier Site); and (ii) if a process sewer
connection exists as of the date hereof on Lot 10, that part of Lot 10
between such existing process sewer connection and Parcel II of the
Leased Premises;
g. Ingress to and egress from the location of, and for the
installation, operation and maintenance of a sanitary sewer system to
benefit Parcel II of the Leased Premises on, under, over, and across
Lot 11 (excluding the Clarifier Site) in such location(s) as to be
mutually agreed upon by Scott and MESC;
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h. Ingress to and egress from the location of, and for the
installation, operation and maintenance of telephone and communications
lines to benefit Parcel II of the Leased Premises on, under, over and
across Lot 10 and Lot 11 in such location(s) as to be mutually agreed
upon by Scott and MESC;
i. Ingress to and egress from the location of, and for support,
operation, use, maintenance, repair, (and in such location(s) as to be
mutually agreed upon by Scott and MESC, the construction, erection,
replacement, improvement, alteration, and reinstallation of), to the
extent owned by MESC for the operation and use of the Leased Premises
the fire protection system located on Lots 8 and 11;
j. Ingress to and egress from, and for the operation and use of a
drainage system in such location(s) as to be mutually agreed upon by
Scott and MESC on, under, over, and across: (i) that part of Lot 11
lying due east of Parcel II of the Leased Premises, including, but not
limited to, the right to discharge surface water, if any, from the
Parcel II of the Leased Premises on to that part of Lot 11 lying due
east of Parcel II of the Leased Premises from time to time; and (ii) if
a surface water drain exists as of the date hereof on Lot 10, the right
to tie into such existing surface water drain on Lot 10 together with
ingress thereto and egress therefrom;
k. Ingress to and egress from, and for the installation, maintenance,
operation and use of all existing pipes, electrical lines, instrument
lines, and communication lines serving Parcel I of the Leased
Premises;
together with all rights and privileges necessary for the use, maintenance, and
enjoyment by MESC of the aforesaid easements (the "Easements").
TO HAVE AND TO HOLD the Easements unto MESC and its successors and assigns from
the date hereof until the termination of the Easements as set forth herein.
3. In addition, Scott does, subject to the reservations and
restrictions set forth herein, hereby grant, bargain, sell and convey unto MESC
a non-exclusive temporary construction easement (the "Interim Easement") upon,
over, beneath, and across the a strip of land lying between Parcel II of the
Leased Premises and the boundary of Lot 11 or a distance of fifty feet,
whichever is larger, but excluding the Clarifier Site for the storage of
materials during the construction of a maintenance facility (the "Maintenance
Facility") on Parcel II of the Leases Premises;
TO HAVE AND TO HOLD such Interim Easement unto MESC and its successors and
assigns from the date hereof until the termination of such Interim Easement as
set forth herein.
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4. MESC shall exercise its easement rights granted hereunder in such a
manner as not to interfere unreasonably with the use, occupancy, or enjoyment of
Lot 8, Lot 11, and/or Lots 8 and 11 or the improvements thereon, taking such
precautions as may be reasonably necessary to prevent unnecessary foreseeable
damage to adjacent or adjoining property or injury to persons. Upon MESC's
completion of any maintenance, repair, or replacement work, MESC shall restore
the subject area to its former condition (insofar as possible) with all debris
removed.
5. Scott shall not interfere in any manner with the easements granted
hereunder, nor with the location any of the MESC Equipment, Pulp Mill Utility
Equipment, or Utilized Services to which MESC has access, use and/or other
rights hereunder, except as expressly permitted as hereinafter provided. Scott
reserves the right to relocate, at its sole cost and expense, any and/or all of
the MESC Equipment located on Lot 8, Lot 10, Lot 11, and/or Lots 8 and 11, the
Pulp Mill Utility Equipment and the Utilized Services (collectively, the "Pulp
Mill Facilities") subject to the following restraints on such relocation rights:
a. Scott shall have the right from time to time to relocate any
one or more of such Pulp Mill Facilities to other locations
within the Pulp Mill Lots, subject to the terms and provisions
of this Easement Deed.
b. Prior to any relocation of any one or more of the Pulp Mill
Facilities, Scott shall give thirty (30) days' written notice of
the proposed relocation(s) to MESC and to the Site Operating
Committee. The notice shall include a detailed description of the
design for the relocated Pulp Mill Facility. With respect to the
relocation of any Pulp Mill Facility that transfers electricity,
gas, any fluid, or any other Metered Flow, the proposed design
for the relocated Pulp Mill Facility shall ensure that the
relocated Pulp Mill Facility will not cause any increase in costs
to MESC or any system changes reasonably unacceptable to MESC.
c. Scott shall not commence construction of any such relocated
Pulp Mill Facility without obtaining MESC's written approval
of the proposed design for the relocated Pulp Mill Facility,
provided, however, that MESC shall not unreasonably withhold
such approval. Any dispute regarding the withholding of such
approval shall be resolved as provided in the Master Operating
Agreement.
d. Scott shall conduct such post-construction tests of any such
relocated Pulp Mill Facility as may be reasonably required by
MESC. Any dispute regarding such required tests shall be
resolved as provided in the Master Operating Agreement.
e. If relocating a Pulp Mill Facility shall require an outage,
shutdown, or slowdown, the Site Operating Committee shall
determine the appropriate date and time for
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such relocation, provided however, that such relocation shall
occur not later than the next scheduled Cold Shutdown.
6. This Easement Deed and the easements created hereunder shall run
with the land and are and shall be binding upon and inure to the benefit of
Scott and MESC and their respective successors and assigns. The easements herein
granted to MESC may be utilized by MESC's employees, invitees, and licensees.
7. The Interim Easement herein granted to MESC hereunder shall cease
and terminate upon the earlier to occur of (a) May 30, 1996, and (b) the
thirtieth (30th) day following the date upon which the facility that MESC
desires to construct upon Parcel II of the Leased Premises is substantially
completed.
8. The easement herein granted to MESC pursuant to Paragraph B hereof
and all rights of MESC hereunder, except to the extent otherwise provided in
Paragraph 7, shall cease and terminate upon the expiration or termination of all
rights of MESC under the MESC Lease, including, without limitation, as
applicable, upon the expiration or termination of all of any New Tenant's rights
under a New Lease entered into pursuant to the Mortgagee Cure Rights set forth
in Section 11.5 of the MESC Lease.
IN WITNESS WHEREOF, Scott and MESC have caused their names to be
executed hereto as of the date first set out above by their duly authorized
representatives.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SCOTT PAPER COMPANY
By: /s/
As Its: Assistant Treasurer
STATE OF ALABAMA
COUNTY OF MOBILE
I, the undersigned Notary Public in and for said County in said State,
hereby certify that Thomas C. Deas, Jr., whose name as Assistant Treasurer of
Scott Paper Company, a Pennsylvania corporation, is signed to the foregoing
easement deed, and who is known to me, acknowledged before me on this day that,
being informed of the contents of the instrument, he, as such officer executed
the same voluntarily for and as the act of said corporation.
Given under my hand and official seal this the 8th day of December,
1995.
/s/
Notary Public
[AFFIX NOTARIAL SEAL]
My Commission Expires: April 23, 1997
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MOBILE ENERGY SERVICES COMPANY,
L.L.C.
By: /s/
As Its: Vice President
STATE OF GEORGIA
COUNTY OF FULTON
I, the undersigned Notary Public in and for said County in said State,
hereby certify that S. Marce Fuller, whose name as Vice President of Mobile
Energy Services Company, L.L.C., an Alabama limited liability company, is signed
to the foregoing easement deed, and who is known to me, acknowledged before me
on this day that, being informed of the contents of the instrument, he, as such
officer executed the same voluntarily for and as the act of said corporation.
Given under my hand and official seal this the 16th day of January,
1996.
/s/
Notary Public
[AFFIX NOTARIAL SEAL]
My Commission Expires: June 19, 1996
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EXHIBIT "A"
ALL that certain plot, piece or parcel of land, situate, lying and being in the
City of Mobile, County of Mobile, and State of Alabama, bounded and described as
follows:
Parcel I
Beginning at a point in Lot 11 of the Scott Paper Company Subdivision as
recorded in Map Book 64, Page 39, in the Office of the Judge of Probate of
Mobile County, Alabama, said point being 3570.10 feet North and 431.54 feet East
of the Site of the Great Magnolia, and at Alabama State Plane Coordinate, (West
Zone, NAD 1927), North 270056.327 and East 326422.733; Thence N-10-53'-56"-W for
356.22 ft.; Thence S-89-01'-08"-E for 105.36 ft.; Thence S-68-5 2'-49"-E for
194.97 ft.; Thence S-15-17'-38"-E for 241.11 ft.; Thence S-80-56'- 54"-W for
287.04 ft. to the Point of Beginning. Said Parcel (the "East Fuel Tank Parcel")
lying and being in Lot 11 of the Scott Paper Company Subdivision and containing
1.968 acres, more or less.
LESS AND EXCEPT:
Beginning at a point 38.85 feet South and 7.65 feet West of the North East
corner of the Parcel described above, said point being at Alabama State Plane
Coordinate, (West Zone, NAD 1927), North 270295.212 and East 326634.957; Thence
S-42-00'-44"-W for 42.00 ft.; Thence N-47- 59'-16"-W for 50.00 ft.; Thence
N-42-00'-44"-E for 42.00 ft.; Thence S-47-59'-16"-E for 50 ft. to the Point of
Beginning. Said Parcel (the "Excluded Parcel") lying entirely within the East
Fuel Tank Parcel described above and containing 2100.00 square feet, more or
less.
Parcel II
Beginning at a point in Lot 11 of the Scott Paper Company Subdivision as
recorded in Map Book 64, Page 39, in the office of the Judge of Probate of
Mobile County, Alabama; Said point being 2029.873 feet North and 2185.566 feet
East of the Site of the Great Magnolia, and at Alabama State Plane Coordinate,
West Zone, NAD 1927, North 268516.033, East 328173.913; Thence
N-41(degree)-44'-09"-E for 197.45 feet; Thence S-26(degree)-32'-42"-E for 123.69
feet; Thence S- 34(degree)-20'-56"-E fir 96.39 feet; Thence
S-41(degree)-44'-09"-W for 143.79 feet; Thence Northwesterly, around a curve to
the left having a radius of 438.37 feet and a Delta angle of 27(degree)-35'-10",
the Chord of which bears N-44(degree)-04'-04"-W for 209.02 feet, for an arc
distance of 211.06 feet to the Point of Beginning. Said Parcel lying and being
entirely within the boundaries of Lot 11 of the aforesaid Scott Paper Company
Subdivision, and containing 0.759 acres, more or less.