WITHIN SEVEN (7) DAYS PRIOR TO THE CLOSING DATE. PRIOR TO CLOSING, ALL
NEW WRITTEN AGREEMENTS REFERRED TO IN THIS SECTION 7.27 SHALL HAVE BEEN TIMELY
FILED WITH THE NEW YORK STATE PUBLIC SERVICE COMMISSION AND SHALL BE FINALLY
APPROVED BY THE BANKRUPTCY COURT WITH RESPECT TO EACH PROCEEDING THEREIN
APPLICABLE TO THE PARTIES TO SUCH WRITTEN AGREEMENTS.
36
7.28
AIR TITLE V PERMITS (HILLBURN AND SHOEMAKER FACILITIES).
COMPANY IS
THE HOLDER OF AN AIR TITLE V PERMIT ISSUED BY THE NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION ("DEC") FOR THE HILLBURN FACILITY (PERMIT
#3-3926-00059/00003) AND THE SHOEMAKER FACILITY (PERMIT #3-3309-00040/00004)
(RESPECTIVELY, THE "HILLBURN AIR PERMIT" AND THE "SHOEMAKER AIR PERMIT",
COLLECTIVELY THE "AIR PERMITS" AND INDIVIDUALLY EACH AN "AIR PERMIT").
AFTER
THE EFFECTIVE DATE, COMPANY SHALL APPLY FOR A MODIFICATION OF EACH PERMIT TO
REMOVE THE HILLBURN AND SHOEMAKER FACILITIES FROM THE CALCULATION OF THE SYSTEM
WIDE AVERAGE OF NITROGEN OXIDE EMISSIONS USED TO DETERMINE COMPLIANCE WITH THE
NOX RACT LIMIT (AS DEFINED IN AND REQUIRED BY EACH PERMIT) (SUCH CALCULATION
BEING REFERRED TO HEREIN AS THE "NOX BUBBLE").
PRIOR TO FILING ANY SUCH
APPLICATION, SELLER SHALL PROVIDE PURCHASER WITH A COPY THEREOF AND ACCEPT
COMMENTS FROM PURCHASER FOR A REASONABLE TIME THEREAFTER.
OTHER THAN SUCH
COMMENTS TO SELLER, PURCHASER SHALL TAKE NO ACTION OPPOSING COMPANY'S
APPLICATIONS FOR SUCH MODIFICATION.
IF PURCHASER REQUESTS SELLER TO CAUSE ANY
SUCH APPLICATION TO INCLUDE A MODIFICATION TO A PERMIT WHICH PURCHASER
DETERMINES IS REASONABLY NECESSARY TO ALLOW THE COMPANY TO OPERATE IN COMPLIANCE
WITH THE NITROGEN OXIDE EMISSION LIMITS IN THE PERMITS AFTER THE AMENDMENT
REMOVING THE RELEVANT FACILITY FROM THE NOX
BUBBLE, SELLER AGREES TO INCLUDE
SUCH REQUESTED MODIFICATION,
PROVIDED THAT THE IMPLEMENTATION THEREOF SHALL NOT
CAUSE THE COMPANY TO INCUR COSTS PRIOR TO THE CLOSING.
SELLER AND PURCHASER
SHALL COOPERATE IN GOOD FAITH TO OBTAIN MODIFIED PERMITS CONSISTENT WITH THIS
SECTION 7.28 THAT SHALL BE EFFECTIVE ON THE CLOSING DATE.
7.29
ASSIGNMENT OF CERTAIN PURCHASE ORDERS.
PRIOR TO THE CLOSING DATE,
SELLER SHALL CAUSE COMPANY TO ASSIGN TO SELLER OR SELLER'S DESIGNEE THE
FOLLOWING PURCHASE ORDERS:
(A) PURCHASE ORDER NO. NY-6867 BETWEEN COMPANY AND
MEAD AND HUNT, INC. (ITEM #9 ON SCHEDULE 4.16), AND (B) PURCHASE ORDER NO.
NY-8296 BETWEEN COMPANY AND BURNS AND ROE ENTERPRISES, INC. (ITEM #13 ON
SCHEDULE 4.16).
SELLER OR SELLER'S DESIGNEE SHALL ASSUME AND PERFORM ALL OF
COMPANY'S OBLIGATIONS UNDER SAID PURCHASE ORDERS FOR SERVICES PERFORMED BY THE
OTHER PARTY THERETO AFTER THE EFFECTIVE DATE.
ARTICLE VIII
MUTUAL CONDITIONS
The respective obligations of each Party to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, on or before the
Closing Date, of each of the following conditions, unless waived in writing by
each Party.
8.01
HSR ACT.
ALL APPLICABLE WAITING PERIODS (AND ANY EXTENSIONS THEREOF)
UNDER THE HSR ACT SHALL HAVE EXPIRED OR OTHERWISE BEEN TERMINATED.
8.02
REGULATORY AND OTHER AUTHORIZATIONS AND CONSENTS.
ALL AUTHORIZATIONS,
CONSENTS AND APPROVALS OF GOVERNMENTAL AUTHORITIES, THIRD PARTIES AND THE
BANKRUPTCY COURT, SHALL HAVE BEEN OBTAINED