Exhibit 10.9
AGREEMENT RELATING TO
REAL ESTATE
October 22, 1998
AES Ironwood, Inc.
and
Pennsy Supply, Inc.
TABLE OF CONTENTS
PAGE
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SECTION 1 RECITALS AND CONDITIONS PRECEDENT...................................3
1.1 Recitals.......................................................3
1.2 Conditions Precedent to Specific Transfers and Grants..........3
SECTION 2 AES ACCESS ROAD.....................................................4
2.1 Deed of Dedication/Easement....................................4
2.2 Access Road Utilities..........................................5
2.3 Permits and Approvals..........................................5
2.4 Expenses.......................................................5
SECTION 0 XXXXXXXX XXXX IMPROVEMENTS..........................................5
3.1 Deed of Dedication.............................................5
3.2 Permits and Approvals..........................................6
3.3 Expenses.......................................................6
3.4 Compliance with Permits........................................7
SECTION 0 XXXX XXXXXX EASEMENT................................................7
4.1 Easement to East Street........................................7
4.2 Permits and Approvals..........................................8
4.3 Expenses.......................................................8
SECTION 5 MET-ED EASEMENT.....................................................8
5.1 Met-Ed Easement................................................8
5.2 Permits and Approvals..........................................9
5.3 Expenses.......................................................9
SECTION 6 STORM WATER EASEMENT................................................9
6.1 Storm Water Easement...........................................9
6.2 Permits and Approvals.........................................10
6.3 Expenses......................................................10
SECTION 7 RESCO PROPERTY.....................................................10
7.1 Resco Property................................................10
7.2 Transfer of AES Title to Pennsy...............................10
7.3 Title.........................................................11
7.4 Transfer Tax/Real Estate Taxes................................11
7.5 Use of Resco Property.........................................12
7.6 Existing Easements/Uses.......................................12
7.7 Resco Closing and Conditions to Closing.......................13
7.8 Resco Closing Deliveries......................................13
7.9 Further Assurances; Additional Agreements.....................14
(i)
TABLE OF CONTENTS - Continued
PAGE
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SECTION 8 WATER RIGHTS.......................................................14
8.1 Water Supply..................................................14
8.2 Equipment; Easements; Access..................................17
8.3 Operation, Repair and Maintenance.............................18
8.4 Compliance with Permits.......................................18
8.5 Utility Expense...............................................18
8.6 Application/Condition.........................................19
8.7 Effective Date................................................19
8.8 Operational Pumping Changes...................................19
8.9 Right to Terminate............................................19
8.10 Future Recorded Agreement.....................................20
SECTION 9 CONRAIL............................................................20
9.1 Easement......................................................20
9.2 Conrail Utilities.............................................20
9.3 Applications and Permits......................................21
9.4 Expenses......................................................21
9.5 Financial Security/Release of AES.............................22
9.6 Cooperation Expedited.........................................22
9.7 Delays........................................................22
SECTION 10 GENERAL...........................................................23
10.1 Plans, Applications, Permits and Licenses....................23
10.2 Mutual Cooperation...........................................23
10.3 Pennsy Operations............................................24
10.4 Closing and Conditions Precedent to Closing..................25
10.4.1 Closing Deliveries.........................................27
10.4.2 Further Assurances; Additional Agreements..................28
10.4.3 Pre-Closing Deliveries.....................................28
10.5 Right of Access..............................................29
10.5.1 Temporary Construction Easement............................29
10.5.2 Indemnification Relating to Entry on Property..............30
10.5.3 Delivery of Materials......................................30
10.6 Survey.......................................................30
10.7 Representations and Warranties of Pennsy.....................31
10.8 Representations and Warranties of AES........................33
10.9 Indemnification Relating to Breach of
Representation or Warranty................................36
10.10 Default and Remedies Upon Default............................36
10.11 Interest.....................................................38
10.12 Preferred Vendor Status......................................38
SECTION 11 MISCELLANEOUS.....................................................38
11.1 Invalidity of Provisions.....................................38
11.2 Maintenance .................................................38
(ii)
TABLE OF CONTENTS - Continued
11.3 Assignment, etc..............................................39
11.4 Gender/Number................................................40
11.5 Heirs, Successors and Assigns................................40
11.6 Entire Agreement.............................................40
11.7 Headings.....................................................40
11.8 Governing Law; Jurisdiction and Venue........................40
11.9 Notice.......................................................40
11.10 Waiver, Modification or Amendment............................41
11.11 Counterparts.................................................41
11.12 Telecopier...................................................41
11.13 Survival.....................................................41
11.14 Consent of Mortgagees........................................41
11.15 Estoppel Certificates........................................42
11.16 Memorandum of Agreement......................................42
(iii)
TABLE OF CONTENTS - Continued
Defined Terms
PAGE
ACCESS EASEMENT..............................................................4
ACCESS ROAD..................................................................2
ADDITIONAL PUMPING FACILITIES...............................................17
AES..........................................................................1
AES PLANT....................................................................1
AES PLANT FLOW..............................................................14
AES PRESCOTT IMPROVEMENTS....................................................2
AES PROPERTY.................................................................1
APPLICATIONS.................................................................2
BASE FLOW...................................................................14
CLOSING.....................................................................25
CLOSING DATE................................................................26
CONDITION PRECEDENT/CONDITIONS PRECEDENT....................................27
CONRAIL......................................................................3
CONRAIL EASEMENTS...........................................................20
CONRAIL PROPERTY.............................................................3
CONTINGENCY DATE............................................................27
CREEK.......................................................................14
CREEK FLOW..................................................................14
CREEK REPAIRS...............................................................16
DRAINAGE EASEMENTS...........................................................9
DRBC........................................................................14
EFFECTIVE DATE............................................................. 19
EVENT OF DEFAULT........................................................... 36
GAS COMPANY.................................................................12
GPM.........................................................................14
INTEREST RATE...............................................................38
MET-ED.......................................................................8
PENNDOT......................................................................2
PENNSY.......................................................................1
PENNSY CONNECTING PROPERTY...................................................4
PENNSY IMPROVEMENTS..........................................................2
PENNSY PENNDOT HOP APPLICATION...............................................6
PENNSY PROPERTY..............................................................1
PERMITS......................................................................2
PRESCOTT QUARRY..............................................................1
PRESCOTT ROAD IMPROVEMENTS.................................................. 6
PROPERTIES..................................................................27
PUBLIC OR PRIVATE UTILITY....................................................5
PUMPING FACILITIES..........................................................14
REGULATORY AUTHORITIES.......................................................2
RESCO........................................................................1
RESCO CLOSING...............................................................13
RESCO CLOSING DATE..........................................................12
RESCO PROPERTY...............................................................1
STORM WATER FACILITIES.......................................................9
SURVEY......................................................................30
TOWNSHIP/TOWNSHIPS...........................................................1
UTILITIES....................................................................2
WATER QUALITY CRITERIA......................................................15
(iv)
AGREEMENT RELATING TO REAL ESTATE
THIS AGREEMENT, made this 22nd day of October, 1998, by and
between AES Ironwood, Inc., a Delaware corporation, with offices at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 ("AES") and Pennsy Supply, Inc.,
a Pennsylvania corporation, with offices at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 ("Pennsy").
The background to this Agreement is as follows:
RECITALS:
R-1. By virtue of an option dated March 26, 1997 with Xxxx
and Xxxxxxx Xxxxxx, AES is the equitable owner of an approximately 35 acre tract
of ground located in South Lebanon Township (the "Township"), Lebanon County,
Pennsylvania, as shown on the plan attached hereto as Exhibit A, incorporated
herein by reference (the "AES Property").
R-2. By virtue of a deed dated June 22, 1998, a copy of which
is attached hereto as Exhibit B and is incorporated herein by reference, AES
acquired title to an approximately 8 acre tract of ground formerly owned by
Resco Products, Inc. ("Resco") which is also identified and shown on Exhibit A
(the "Resco Property").
R-3. Pennsy is the owner of several large tracts of ground on
which Pennsy conducts quarrying and related activities, located in South Lebanon
Township and Xxxxxxx Township (collectively the "Townships"), Lebanon County,
Pennsylvania, which, in some instances, border on the AES Property and the Resco
Property and in other instances are to the East of Prescott Road, and which are
also shown on Exhibit A. They are designated herein and on Exhibit A as the
Pennsy West Tract and the Pennsy East Tract, and are collectively referred to
herein as the "Pennsy Property" or the "Prescott Quarry").
R-4. AES intends to construct an electrical generating plant
and related improvements (the "AES Plant") on the AES Property and, for that
reason, has proposed, and Pennsy and AES have negotiated, certain real estate
transfer, access and easement agreements and certain operational water pumping
and material supply arrangements which the parties deem to be mutually
beneficial, and which are described in this Agreement. As of the date of this
Agreement, some, but not all, of these agreements have been reduced to writing.
AES and Pennsy anticipate that all agreements and arrangements contemplated by
this Agreement will be consummated, according to the terms hereof, on or before
the dates otherwise described herein.
R-5. As a condition to securing land development plan
approval for its truck washing facility, Pennsy previously applied to the
Pennsylvania Department of Transportation
("PennDOT") for highway occupancy permits, and has been granted multiple highway
occupancy permits both for access and the making of improvements to Prescott
Road (the "Pennsy Improvements"). Pennsy has neither commenced nor completed
construction of any of the Pennsy Improvements.
R-6. As a condition to developing the AES Property, and to
securing subdivision and/or land development plan approval from the Township, it
will be necessary for either AES or Pennsy, with the cooperation and assistance
of the other, as appropriate, to apply to PennDOT for a highway occupancy permit
or permits and to the Township for such plan approvals; PennDOT has notified AES
and Pennsy that it will require additional improvements to Prescott Road beyond
the limits of and in addition to the Pennsy Improvements (the additional
improvements being the "AES Prescott Improvements").
R-7. PennDOT has also notified AES and Pennsy that the AES
Prescott Improvements will require the dedication of additional right-of-way
along the western side of Prescott Road to the Commonwealth from the Pennsy West
Tract, by Pennsy, and from the Resco Property, either by AES or Pennsy depending
on the date of the dedication relative to the completion of the Resco Property
transfer contemplated herein.
R-8. The construction of the AES Plant will require the
construction and installation of an access road which will run from Prescott
Road to the AES Property, crossing the Resco Property and the Pennsy Property as
shown on Exhibit R-8 (the "Access Road"), as well as construction, installation,
and dedication of easements over, upon, under and through the Resco Property and
the Pennsy Property for public and private utilities, including, without
limitation, water, sewer, gas, electric, stormwater, fiber optic, and cable (the
"Utilities").
R-9. The construction of the AES Plant will also require the
submission of plans, license and permit applications, variance applications,
requests, supporting tests, studies and data, and other similar documentation
(the "Applications") to one or both Townships, the Commonwealth of Pennsylvania,
and various agencies, departments, boards or authorities thereof; to the federal
government, and various agencies, departments, boards or authorities created by
or to serve it; and to other governmental or quasi-governmental entities created
for the purpose of regulating facilities such as the AES Plant (the "Regulatory
Authorities") for the issuance of permits, licenses, certifications and other
similar approvals (the "Permits").
R-10. AES has agreed to convey the Resco Property to Pennsy,
subject to and in accordance with the terms of this Agreement. This conveyance
shall be made either as partial consideration for the grant by Pennsy to AES of
the easements and
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other rights contemplated herein, or should AES determine not to proceed with
the AES Plant, for such other consideration as stated herein.
R-11. In order for Pennsy and its predecessors to quarry the
limestone and other minerals located at the Prescott Quarry, Pennsy and its
predecessors, for many years, have pumped water, which, excepting incidental
storm drainage, accumulates entirely from underground sources below the quarry
pits at the Prescott Quarry, into the Tulpehocken Creek. AES has agreed, for its
benefit and as partial consideration for the grant by Pennsy to AES of the
easements and other rights contemplated herein, to utilize a portion of the
water which Pennsy is required to pump to conduct its mining operations and to
bear, in most instances, all of the expense which would be incurred by Pennsy
therefor.
R-12. AES has entered into negotiations with Consolidated
Rail Corporation (with its successors, hereinafter "Conrail") for the
construction, installation and extension of a rail spur which will begin on
property owned by Conrail (the "Conrail Property") and then extend to serve the
AES Property, the Resco Property and the Pennsy Property, including, without
limitation, switching from Conrail's main tracks and onto the spur in a location
adjacent to the AES Property.
NOW, THEREFORE, the parties hereto, in consideration of the
mutual promises and covenants herein contained, AND INTENDING TO BE LEGALLY
BOUND, promise, covenant and agree as follows:
1. Recitals and Conditions Precedent
1.1 Recitals. The Recitals set forth above are incorporated
herein by reference, and made a part hereof, as if fully set forth herein.
1.2 Conditions Precedent to Specific Transfers and
Grants.
(a) Provided that AES proceeds with this Agreement as
contemplated by Section 10.4 and does not exercise its rights under Section
7.2(b), those grants and conveyances set forth in Sections 2, 3, 4, 5, 6 and
7.2(a) shall occur at the Section 10.4 Closing or at such other time following
the date hereof as contemplated herein, and the activities contemplated by
Sections 8, 9 and 10 shall commence as provided for therein.
(b) If AES elects to proceed under Section 7.2(b),
performance of the transfer referred to therein shall occur in accordance with
the terms and conditions of such section. All other provisions of this Agreement
(1) which have not been completed or effected, including the deliveries
contemplated by Section 10.4.1 other than possession of the Resco Property, or
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(2) which are not expressly or by implication reasonably intended to continue,
shall be terminated.
2. AES Access Road
2.1 Deed of Dedication/Easement.
(a) Pennsy will grant and convey to AES for so long as it (or
its approved assignee) uses the AES Property for the Permitted Uses, as
hereinafter defined,a perpetual, uninterrupted easement and right-of-way for the
installation and maintenance of identification signs, including appropriate
landscaping, and for ingress, egress and regress from Prescott Road to the AES
Property, across the Resco Property and across a portion of the Pennsy Property
located between the AES Property and the Resco Property (the "Pennsy Connecting
Property") in substantially the location shown on Exhibit A (the "Access
Easement"). The Access Agreement shall be in form and content reasonably
acceptable to both parties. AES shall have the obligation, at its sole expense,
to regrade and relocate the spoil piles and other conditions on the Pennsy
Connecting Property to other reasonable locations on the Pennsy Property
(adjacent to the current spoil piles, as reasonably determined by AES and
reasonably approved by Pennsy). The Access Easement will be granted for the
exclusive use of AES, except to the extent that it may be used by Pennsy for
occasional access to the Resco Property and the Pennsy Connecting Property
(which use by Pennsy, however, shall not impede or impair AES's use of the
Access Easement) and by Public or Private Utilities pursuant to utility
easement(s) approved by AES and Pennsy, as set forth in Section 2.2 below.
(b) In addition, Pennsy will grant and convey to PennDot good
and marketable fee simple title by a deed of dedication, using PennDot's usual
and customary form, the minimum amount of additional land required by PennDOT to
widen Prescott Road for construction of the Access Road.
(c) The Access Easement shall have a minimum width of fifty
(50) feet; shall have a cartway width of twenty-four (24) feet, with two (2)
foot wide shoulders (28' total width), unless a different width is required by
any of the Regulatory Authorities; and such curbing (but only such curbing) as
is required by PennDot or the Township.
(d) In lieu of Pennsy granting the Access Easement or other
rights, or both, to AES across the Resco Property, AES may reserve the same in
the location shown on Exhibit R-8 in a form otherwise reasonably approved by
Pennsy, the same rights of access in a deed of the Resco Property which AES
provides or causes to be provided to Pennsy at the Section 10.4 Closing, but not
in connection with a closing under Section 7.2(b), and will
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directly grant and convey to PennDot the property rights on the Resco Property
which PennDot requires.
2.2 Access Road Utilities. Pennsy will grant and convey, in
form and content reasonably acceptable to both AES and Pennsy, to AES or to any
applicable public or private utility company or governmental agency or authority
providing utility service (a "Public or Private Utility"), for so long as it (or
its approved assignee) uses the AES Property for the Permitted Uses, as
hereinafter defined,a perpetual, uninterrupted, non-exclusive easement and
right-of-way within the Access Easement for construction, reconstruction,
operation, maintenance and repair of any of the Utilities within the Access
Easement. If the easement and right-of-way is to be granted to a Public or
Private Utility, the form of easement shall generally follow the form of
easement utilized by such Public or Private Utility, shall, to the extent
deviations from such form are deemed appropriate by Pennsy, be negotiated
promptly and in good faith by Pennsy, and shall be reasonably acceptable to both
Pennsy and such Public or Private Utility, and shall include such additional
reasonable requirements of such Utility as are necessary to provide appropriate
service to the AES Plant.
2.3 Permits and Approvals. AES, at its sole cost and expense,
will prepare for execution by AES and Pennsy, as appropriate, and submit all
Applications for all required Permits from any Public or Private Utility or
Regulatory Authority having jurisdiction over the Access Road, the Access Road
improvements or the Utilities. Pennsy shall have the right, prior to its
execution thereof, to review and approve all such Applications for content, form
and consistency with this Agreement, which approval shall not be unreasonably
withheld, delayed or conditioned.
2.4 Expenses. AES will be responsible for, and will pay the
expenses incurred for preparing all Applications necessary for construction of
the Access Road and Utilities therein, as well as the cost of construction,
reconstruction, maintenance and repair of the Access Road and such Utilities.
This section is specifically intended to result in no cost, expense or other
amount being borne by Pennsy unless necessitated by Pennsy's negligence or
intentional misconduct, in which case Pennsy at its sole cost shall be
responsible for such costs of construction, reconstruction, maintenance and
repair.
3. Prescott Road Improvements
3.1 Deed of Dedication.
(a) Pennsy will grant to PennDOT good and marketable fee
simple title using a deed of dedication in PennDOT's usual and customary form
for additional land along Prescott Road, so as
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to widen Prescott Road by an average width of approximately thirteen and
one-half (13.5) feet, all as shown on Highway Occupancy Permit Applications
previously reviewed and approved by Pennsy (the "Pennsy PennDOT HOP
Application"), and submitted to PennDOT, substantially as shown on Exhibit A.
(b) If PennDOT requires additional dedication or a
supplemental highway occupancy permit, or both, to extend the water lines
provided for in Section 8 in a northerly direction along Prescott Road (from the
terminus provided in the currently filed Pennsy PennDOT HOP Application), Pennsy
will make the additional dedication and willexecute such additional documents as
are reasonably necessary therefor.
(c) The exact width of the additional dedication shall be the
minimum width necessary to construct both the Prescott Road Improvements and the
Utilities necessary to serve the facilities on the Pennsy Property, the Resco
Property and the AES Plant, as reasonably determined by PennDOT and, if
appropriate, the Township and any Public or Private Utility or Regulatory
Authority having jurisdiction.
(d) If a Public or Private Utility or Regulatory Authority
requires an easement and right-of-way prior to dedication of the additional
property to PennDOT, or in addition to the additional property dedicated by
Pennsy to PennDOT, Pennsy will grant and convey to the Public or Private Utility
or Regulatory Authority such easement and right-of-way utilizing a form of
easement which is reasonably acceptable to all parties and shall include any
special requirements necessary for utility service to the AES Plant.
3.2 Permits and Approvals. AES, at its sole cost and expense,
will prepare and submit all Applications for all required Permits from any
Public or Private Utility company or Regulatory Authority having jurisdiction
over the AES Prescott Improvements and the Pennsy Improvements (jointly the
"Prescott Road Improvements"). Pennsy shall have the right, prior to its
execution thereof, to review and approve all such Applications for content, form
and consistency with this Agreement, which approval shall not be unreasonably
withheld, delayed or conditioned.
3.3 Expenses.
(a) AES will be responsible for, and will pay the expenses
incurred for preparing all Applications and other documents necessary for
construction of the AES Prescott Improvements. As Pennsy has not constructed and
paid for the Pennsy Improvements, and subject to the limitations of Section
3.3(d), Pennsy will be responsible for and will pay the cost and expenses which
Pennsy would have paid if the Pennsy Improvements
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had been bonded and installed, as reasonably estimated by the consulting
engineers for Pennsy and AES, or if that estimate is not satisfactory to both
Pennsy and AES, then by the lowest responsible bid therefor (the "Pennsy
Improvements Cost").
(b) AES will post a bond, letter of credit or other security
required by PennDOT or any other applicable Regulatory Authority for costs
associated with the Prescott Road Improvements. Pennsy shall reimburse AES for a
portion of the costs thereof, determined by multiplying such security costs by a
faction, the numerator of which is the Pennsy Improvement Costs and the
denominator of which is all of the Prescott Road Improvements Costs.
(c) For purposes of this section, the cost and expenses of
each party shall include, without limitation, all construction, permit, bond,
letter or credit, other security application, filing, engineering, legal, and
other fees, costs or expenses associated with the particular improvements for
which a party is responsible. AES will pay all such costs and expenses for the
AES Prescott Improvements and will timely secure and provide any bonds, letters
of credit or security required therefor.
(d) Pennsy shall reimburse AES for the Pennsy Improvements
Costs, subject to a $100,000 maximum. Pennsy will not be obligated to pay any
cost, expense or other amount unless associated directly with the Pennsy
Improvements, and Pennsy will not be obligated to pay any amount in excess of
$100,000 for the Pennsy Improvements, such excess being the responsibility of
AES.
3.4 Compliance with Permits. Following completion of the AES
Prescott Improvements, Pennsy, unless necessitated by the operations of AES on
the AES Property, will be responsible for all reconstruction, maintenance,
repair and operations on the Pennsy Property and, if owned by Pennsy, on the
Resco Property, including, without limitation, any such work or operations
necessary to maintain all Permits relating to Prescott Road.
4. East Street Easement
4.1 Easement to East Street. Pennsy will grant and convey to
AES for so long as it (or its approved assignee) uses the AES Property for the
Permitted Uses, as hereinafter defined, or to any applicable Utility (including,
without limitation, GPU Energy, Inc., with whom Pennsy will reasonably
cooperate), a perpetual, non-exclusive easement or easements, in form and
content which generally follows the form of easement utilized by the applicable
Public or Private Utility and where deviations from such form are deemed
appropriate by Pennsy, Pennsy will negotiate the same promptly and in good
faith. Such easement
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shall be reasonably acceptable to Pennsy, for water, natural gas, sewage and
other Utility purposes and emergency access purposes not exceeding seventy (70)
feet in width (in the aggregate), with an additional temporary construction
easement not exceeding twenty-five (25) feet in width in form and content
reasonably acceptable to Pennsy, from East Street to the AES Property, in a
location generally parallel to the property of Conrail. The southern boundary of
said seventy (70) foot wide easement area shall be the dividing line between the
Pennsy Property and the property owned by Conrail (or, if not owned in fee by
Conrail, then upon which Conrail has an easement) all substantially as shown on
Exhibit A.
4.2 Permits and Approvals. AES, at its sole cost and expense,
will prepare for execution by AESand Pennsy, as appropriate, and submit all
Applications for all required Permits necessary from any Public or Private
Utility company or Regulatory Authority having jurisdiction over the East Street
Easement. Pennsy shall have the right to review and approve all such
Applications, which approval shall not be unreasonably withheld, delayed or
conditioned.
4.3 Expenses. AES will be responsible for, and will pay the
expenses incurred for preparing all Applications necessary for construction of
the improvements to the East Street Easement and Utilities therein, as well as
the cost of construction, reconstruction, maintenance and repair of the East
Street Easement and such Utilities (to the extent not undertaken, completed or
paid by the applicable Utility). This section is specifically intended to result
in no cost, expense or other amount being borne by Pennsy unless necessitated by
Pennsy's negligence or intentional misconduct, in which case Pennsy at its sole
cost shall be responsible for such costs of construction, reconstruction,
maintenance and repair.
5. Met-Ed Easement
5.1 Met-Ed Easement. Pennsy will give to Metropolitan Edison
Company ("Met-Ed") or such other electrical utility as is reasonably designated
by AES, a perpetual, non-exclusive easement and right-of-way for the
construction, reconstruction, operation, maintenance and repair of electric
utility lines, towers, and other facilities from the existing Met-Ed
right-of-way to the AES Property, in form and content which generally follows
the form of easement utilized by the applicable Met-Ed, and where deviations
from such form are deemed appropriate by Pennsy, Pennsy will negotiate the same
promptly and in good faith. Such easement shall be reasonably acceptable to
Pennsy, which approval shall not be unreasonably withheld, delayed or
conditioned. The right-of-way shall be one hundred (100) feet in width, unless
Met-Ed agrees to a lesser width, and shall be no closer than seventy-
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five (75) feet south of the northern property line of the AES Property,
extended, substantially as shown on Exhibit A.
5.2 Permits and Approvals. AES, at its sole cost and expense
will prepare for execution by AES and Pennsy, as appropriate, and submit all
Applications for all Permits necessary from any Public or Private Utility or
Regulatory Authority having jurisdiction over the Met-Ed Easement. Pennsy shall
have the right to review and approve all such Applications, which approval shall
not be unreasonably withheld, delayed or conditioned.
5.3 Expenses. AES will be responsible for, and will pay the
expenses incurred for preparing all Applications necessary for construction of
the Met-Ed Easement and Utilities therein, as well as the cost of construction,
reconstruction, maintenance and repair of the Met-Ed Easement and such Utilities
(to the extent not undertaken, completed or paid by Met-Ed). This section is
intended to result in no cost, expense or other amount being borne by Pennsy
unless necessitated by Pennsy's negligence or intentional misconduct, in which
case Pennsy at its sole cost shall be responsible for such costs of
construction, reconstruction, maintenance and repair.
6. Storm Water Easement
6.1 Storm Water Easement. Pennsy will grant and convey to
AES, for so long as it (or its approved assignee) uses the AES Property for the
Permitted Uses, as hereinafter defined,a perpetual, uninterrupted, non-exclusive
easement for the construction, reconstruction, operation, maintenance and repair
of stormwater drainage pipes, pipelines, standpipes, manholes, outlets,
overflows, and other facilities ("Storm Water Facilities") from the northeast
corner of the AES Property to the pit on the Pennsy West Tract, substantially as
shown on Exhibit A, in form and content reasonably acceptable to Pennsy, which
approval shall not be unreasonably withheld, delayed or conditioned; provided,
however, that if the mining operations of Pennsy enter the Storm Water Easement
Area, Pennsy will, at its expense, relocate Storm Water Facilities installed or
constructed by AES, including granting the minimum necessary or appropriate
easements and securing the minimum necessary approvals and permits therefor, all
as approved by AES, in the exercise of reasonable commercial discretion, and in
accordance with all Applicable Laws. Pennsy will further grant and convey to AES
perpetual, uninterrupted, and non-exclusive easements for the construction,
grading and maintenance of drainage xxxxxx to facilitate the development of the
AES Property and the Access Drive (the "Drainage Easements"). Said Drainage
Easements are required by South Lebanon Township as a condition of land
development plan approval. The Drainage Easements are located along the north
and east sides of the AES Property and along the
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north side of the Access Road, and are substantially as shown on
Exhibit A.
6.2 Permits and Approvals. Except as provided above in the
case of relocation of Storm Water Facilities, AES, at its sole cost and expense,
will prepare for execution by AES and Pennsy, as appropriate, and submit all
Applications for all Permits necessary from any Public or Private Utility
company or Regulatory Authority having jurisdiction over the Storm Water
Easement or Storm Water Facilities. Pennsy shall have the right to review and
approve all such Applications, which approval shall not be unreasonably
withheld, delayed or conditioned.
6.3 Expenses. AES will be responsible for, and will pay the
expenses incurred for preparing all Applications necessary for construction of
the Storm Water Easement or Storm Water Facilities and Utilities therein, as
well as the cost of construction, reconstruction, maintenance and repair of the
Storm Water Easement or Storm Water Facilities. Unless necessitated by a change
in Pennsy's mining operations as contemplated by Section 6.1, this section is
specifically intended to result in no cost, expense or other amount being borne
by Pennsy unless necessitated by Pennsy's negligence or intentional misconduct,
in which case Pennsy at its sole cost shall be responsible for such costs of
construction, reconstruction, maintenance and repair.
7. Resco Property
7.1 Resco Property. AES will at its sole expense (except as
expressly provided herein) grant and convey the Resco Property to Pennsy in
accordance with and subject to the terms and conditions of this Agreement.
7.2 Transfer of AES Title to Pennsy.
(a) Transfer to Pennsy if AES proceeds as contemplated by
this Agreement. If AES determines to proceed with development and construction
of the AES Plant, AES will, at the Closing provided for in Section 10.4, grant
and convey title to the Resco Property to Pennsy in accordance with Sections 7.3
through 7.9 below.
(b) Transfer to Pennsy if AES Determines not to proceed as
contemplated by this Agreement. If AES determines not to proceed with
development and construction of the AES Plant, Pennsy will, upon no less than 45
days notice from AES to Pennsy, purchase the Resco Property from AES, and AES
will grant and convey the Resco Property to Pennsy, upon the terms and
conditions set forth in Sections 7.2(c) and 7.3 at a closing date, time and
place mutually agreed to by AES and Pennsy. Possession of the Resco Property
shall be delivered at such closing. Notwithstanding anything contained in this
Agreement to
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the contrary, Pennsy's obligation to purchase the Resco Property is expressly
conditioned and contingent upon there having occurred no material adverse change
to the Resco Property since the date hereof, other than relocation of the spoil
piles and construction of the Access Easement (if said work has been undertaken)
and shall be subject to any easements to Conrail or to a Public or Private
Utility in the Access Easement if delivered and recorded prior to the closing
provided for in Section 7.7 below.
(c) Payment by Pennsy. In the event AES exercises its rights
under Section 7.2(b) above, Pennsy will pay to AES the sum of One Hundred
Thousand ($100,000.00) Dollars, as well as making payment of all usual and
customary buyer's closing costs for Pennsy's acquisition of the Resco Property,
including, without limitation, payment of all legal fees incurred by Pennsy;
one-half of the realty transfer taxes applicable to the purchase price; deed
recording costs; title insurance; survey; and applicable prorations. AES will
not seek recovery from Pennsy for any additional consideration paid to Resco to
complete the Resco to AES transfer, and AES shall pay all of the usual and
customary Seller's costs associated with the Section 7.2(b) transfer to Pennsy.
7.3 Title. Whether delivered under Section 7.2(a) or 7.2(b),
title to the Resco Property shall be good and marketable fee simple title,
subject only to easements, restrictions and conditions of record or visible on
the Resco Property, or reserved or contemplated by this Agreement. AES has
secured or will secure an owner's title insurance commitment for the Resco
Property, issued to AES or Pennsy, or both, as the proposed insured(s), by a
reputable title insurance company licensed to do business in the Commonwealth of
Pennsylvania. Unless AES exercises its rights under Section 7.2(b) above, AES
will be responsible for payment at Closing of any title insurance premium on
title insurance issued to Pennsy for the Resco Property.
7.4 Transfer Tax/Real Estate Taxes. Unless AES exercises its
rights under Section 7.2(b) above, AES will pay or cause to be paid all real
estate transfer taxes in connection with the acquisition of the Resco Property
and transfer of the Resco Property to Pennsy, and in connection with all other
transfers contemplated by this Agreement, by easement or otherwise if this
Agreement proceeds under Section 7.2(a); provided, however, that real estate
taxes and, if applicable, water and sewer rentals, tenant rentals, and other
charges normally and customarily pro rated by buyer and seller will be pro rated
as of the Closing on the AES to Pennsy sale, with Pennsy paying its share
thereof (or reimbursing AES therefor).
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7.5 Use of Resco Property.
(a) AES acquired the Resco Property in order to provide
access and utilities to the AES Property, entrance improvements thereto
(including property for entrance, signs and landscaping) and, generally, to
control the development thereof to facilitate the AES Plant; pursuant to that
purpose, AES shall have the right to locate the Access Easement, Utility
easements, entrance improvements, and other rights on the Resco Property
necessary or desirable for development of the AES Property, as it reasonably
determines, including, without limitation, removing the two story portion of the
existing building at the southwest corner of the Resco Property and the
one-story modular attachment to the building, all to accommodate AES' planned
access to the AES Property.
(b) AES will, at its sole expense: (1) repair the one story
portion of such building to provide an exterior finish similar to the existing
building, (2) repair or restore any other buildings or structures which are not
intended to be removed or demolished, and (3) grade to appropriate contours and
otherwise restore other areas disturbed by its activities. To the extent such
improvements are shown on Exhibit A, or have otherwise been submitted to Pennsy
and approved by Pennsy as of the date of this Agreement (e.g., highway occupancy
permit plans), they shall be deemed approved by Pennsy, as of the date this
Agreement is executed.
(c) To the extent such improvements have not been so
approved, AES shall consult with Pennsy with respect to such decisions and AES
and Pennsy will negotiate in good faith concerning any actions planned or
desired by AES in connection with this Section 7.5. Pennsy shall have the right
to approve any such features or conditions on the Resco Property which are
material to the use of the Resco Property by Pennsy, but such approval shall not
be unreasonably withheld, delayed or conditioned.
7.6 Existing Easements/Uses. The Resco Property and the
Pennsy Property are subject to existing easements or uses, or both, not
otherwise referenced in this Agreement, including, without limitation, an
electric service line connecting Pennsy to Met-Ed and an easement to P.G. Energy
(formerly Pennsylvania Gas and Water Company) (the "Gas Company") for a
non-operating gas line. AES has approached the Gas Company for a release of that
easement, and was advised that the Gas Company might approve removing the
pipeline therein at the expense of AES, but the easement would not be released
or abandoned. The Gas Company easement also crosses the Pennsy Property. Should
either AES or Pennsy deem it advisable to relocate any such easement or use,
then AES and Pennsy will cooperate with such relocation, including execution of
any relocation, abandonment or release
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agreements necessary or appropriate to conclude the same. All costs associated
therewith shall be borne by the party requesting such relocation, abandonment or
release.
7.7 Resco Closing and Conditions to Closing. If AES elects to
proceed with development and construction of the AES Plant and not to exercise
its rights under Section 7.2(b), closing of the sale of the Resco Property by
AES to Pennsy shall be held at the time, place and on the date established under
Section 10.4. The obligations of AES and Pennsy to close on the transfer of the
Resco Property to Pennsy are conditioned and contingent upon the occurrence of
the following:
a. All of AES's and Pennsy's representations and warranties
made in this Agreement shall be true and correct as of the
date hereof and as of the Closing Date as if then made; there
shall have occurred no material adverse change to the Resco
Property since the date hereof; Pennsy and AES shall have
performed to the Closing Date all of its covenants and other
obligations under this Agreement; and Pennsy and AES shall
have executed and delivered to each other at Closing a
certificate to the foregoing effect.
b. AES shall have obtained a survey of the Resco Property and
Pennsy and AES each shall have obtained title insurance for
its respective proposed interests therein that is acceptable
to it.
c. AES shall have been granted the Access Easement, if it so
requires.
AES's and Pennsy's respective obligations under this Section 7.7 to close on the
transfer of the Resco Property to Pennsy are subject to AES and Pennsy each
being satisfied, in the exercise of reasonable commercial discretion, that all
of the foregoing conditions have been fulfilled or can be fulfilled on or prior
to the Closing, or to the applicable party waiving the same.
7.8 Resco Closing Deliveries. If this transaction proceeds as
contemplated by Section 7.2(a), the following deliveries shall occur at the
Closing, unless previously delivered or otherwise waived by AES or Pennsy, as
applicable (in which case that item will then become a post-Closing delivery):
possession of the Resco Property shall be delivered to Pennsy; the Access Road
Easement, the Storm Water Easement and the Water Pumping Agreement and Pumping
Facilities easements and licenses shall be executed and granted to AES; and the
East Street Easements, the Met-Ed Easement and the Conrail Easements shall be
executed and granted to the appropriate parties.
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7.9 Further Assurances; Additional Agreements. Pennsy and AES each
covenant and agree to sign, execute and deliver, or cause to be signed, executed
and delivered, and to do or make, or cause to be done or made, upon the written
request of the other party, any and all agreements, instruments, papers, deeds,
acts or things, supplemental, confirmatory or otherwise, as may be reasonably
required by either party hereto for the purpose of or in connection with
consummating the Resco transactions described in this Section 7. This covenant
survives as long as is necessary to consummate the transactions and intent
described herein, whether AES proceeds under Section 7.2(a) or 7.2(b).
8. Water Pumping
8.1 Water Supply.
(a) Construction Pumping. Pennsy will make available and AES
shall have the right, at its sole cost and expense, beginning in March of 1999
and continuing throughout construction of the AES Plant until the Effective Date
under Section 8.7, to pump not more than 3,000 gallons per minute ("GPM") from
the Prescott Quarry on the Pennsy East or Pennsy West Tract for construction
purposes and for testing the AES Plant. The water shall be drawn from the
Prescott Quarry pit selected by AES, at a location acceptable to Pennsy, in the
exercise of reasonable commercial discretion. Pennsy shall grant and convey to
AES a temporary easement, in form and content reasonably acceptable to the
parties, for the Pumping Facilities and Additional Pumping Facilities (as
hereinafter defined) to convey the water for such purposes.
(b) General Pumping.
(1) On the Effective Date and unless unavailable due to
circumstances absolutely beyond its control, including, but not limited to, war,
strike, government action, acts of God or other natural causes, conditions or
occurrences, Pennsy will make available from the Prescott Quarry, for general
use by AES on a continuous basis, and AES will have the right to pump, for as
long as AES or its approved assignee operates the AES Plant,a minimum of 1,500
GPM and, if required by AES, up to 3,000 GPM, of Pennsy's Prescott Quarry water
(or such lesser amount as may be approved or required by the Regulatory
Authorities) for use at the AES Plant (the "AES Plant Flow").
(2) Pennsy will make available and AES will have the right to
pump, the minimum flow to the Tulpehocken Creek (the "Creek") as determined and
required by the Delaware River Basin Commission ("DRBC") or other Regulatory
Authorities having jurisdiction (the "Creek Flow") (the AES Plant Flow and the
Creek Flow together are referred to as the "Base Flow").
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(3) In addition to the Base Flow, Pennsy will also make
available and AES shall have the right to pump additional water from the
Prescott Quarry for emergency use (such as fire) during periods of such
emergency without regard to the 3,000 GPM limitation.
(c) Operational Concept.
(1) AES.
(i) AES will pump water for the AES Plant Flow from the
Pennsy East Tract and for the Creek Flow from the Pennsy West Tract, provided
and as long as the water quality for the Base Flow meets all water quality
standards established by AES, DRBC, Pennsy's Non-Coal Mining Permit and any
other Regulatory Authorities having jurisdiction (the "Water Quality Criteria").
(ii) Water for emergency use by AES will be drawn from the
most convenient Pennsy Tract.
(iii) If it appears that the Water Quality Criteria will not
be met on a regular basis (for any reason), or if available water supplies are
not sufficient to maintain and sustain Creek Flow from the Pennsy West Tract,
then AES will, after notice from Pennsy, pump water for the Creek Flow from
whichever Tract is best suited to maintain and sustain Creek Flow quality and
volume requirements. Pennsy is and shall at all times remain responsible for the
Water Quality of the Creek Flow pursuant to its Non-Coal Mining Operating
Permit.
(iv) If AES is not satisfied with Water Quality from the
Pennsy East Tract as it pertains to AES Plant Flow Water Quality Criteria, AES
may request a modification of pumping operations so as to achieve its quality
standards or may otherwise suggest corrective actions or modifications designed
to improve water quality. Pennsy will cooperate in this regard but will only
bear such water quality obligations as may arise as a result of the actions of
Regulatory Authorities directed at Pennsy, or as a result of the negligence or
intentional misconduct of Pennsy. To the extent Creek Flow Water Quality is
substandard as a result of the negligence or intentional misconduct of AES, AES
shall indemnify and hold Pennsy harmless in connection with all costs of
correction which may result and as imposed by the action of any Regulatory
Authority having jurisdiction over such water quality. To the extent Creek Flow
Water Quality is substandard as a result of the negligence or intentional
misconduct of Pennsy, Pennsy shall indemnify and hold AES harmless in connection
with all costs of correction which may result and as imposed by the action of
any Regulatory Authority having jurisdiction over such water quality.
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(v) Should Pennsy request a modification of this operational
concept which (1) does not have a material adverse effect on the Base Flow, (2)
which does not materially increase the projected costs to AES, and (3) which is
in compliance with applicable laws and Permits, AES will cooperate reasonably
with Pennsy to incorporate such changes into the future recorded agreement
provided for in Section 8.10 below.
(2) Pennsy. Pennsy shall, consistent with its obligations
pursuant to the other provisions of this section, have the right to reasonably
direct and control the dewatering of the Pennsy Tract being mined (currently the
Pennsy West Tract) by AES. Pennsy shall have, by way of illustration, the right
to direct AES (1) to increase or decrease pumping by twenty (20%) percent,
daily, to provide for greater or lesser dewatering of the Pennsy Tract then
being mined; and (2) to pump at times when Utility Expenses are at the lowest
rates. An example of the type of direction which may be provided by Pennsy is
attached hereto as Exhibit 8.1(c)(2), incorporated herein by reference.
(d) Repairs to Creek. If repairs to sinkholes or other
repairs or improvements in or to the Creek (the "Creek Repairs") are necessary
or required by the DRBC or are necessary to maintain the AES DRBC approval, or
any other Permit or Approval necessary to maintain the contemplated operations
on the AES Property, then AES, and not Pennsy, will pay the costs thereof. If
Creek Repairs are required to maintain Pennsy's Non- Coal Mining Permit, to
maintain Pennsy's quarrying operations, or because of other activities on the
Pennsy Property or the Resco Property, or both, then Pennsy, and not AES, will
pay the costs thereof. If the repairs are required to maintain both the AES and
the Pennsy permits, or are not required to maintain a permit, as aforesaid, but:
(1) are otherwise attributable to conditions on both the AES Property and the
Pennsy Property, or (2) cannot be primarily attributed to only the Pennsy
Property or the AES Property, but the interests of Pennsy and AES are both
substantially served by making the repairs, then the costs of the Creek Repairs
will be shared equally between AES and Pennsy.
(e) Water Priorities. On the Effective Date and unless
unavailable for reasons beyond the control of Pennsy, including, but not limited
to war, strike, government action, acts of God or other natural causes,
conditions or occurrences, and subject to the requirements of any applicable
Permits, water shall be made available from the Prescott Quarry in the following
order of priorities:
(1) To the Creek, an amount sufficient to maintain the Creek
Flow;
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(2) To AES, 3,000 GPM, or such lesser amount as used by AES or
as may be required by an appropriate Regulatory Authority;
(3) Emergency Use for the AES Plant; and
(4) To Pennsy, the remainder.
8.2 Equipment; Easements; Access.
(a) Pennsy will provide to AES for unrestricted and
continuous use by AES personnel, Pennsy's existing pumps, pump houses, docks,
pipes, pipelines, associated fixtures, and related transformers and electrical
supply facilities (including those currently on order) (collectively the
"Pumping Facilities").
(b) AES will be responsible for the construction and
installation of any additional pumps, pump houses, docks, pipes, pipelines,
generators, generator sheds, fixtures, transformers, meters and electrical
supply facilities necessary to pump water from the Pennsy Tract quarries to the
AES Property and for emergency use (the "Additional Pumping Facilities").
(c) Pennsy will grant and convey to AES for so long as it (or
its approved assignee) uses the AES Property for the Permitted Uses, as
hereinafter defined,a perpetual, uninterrupted and exclusive easement over,
across, upon, under and through the Pennsy Property, substantially at the
location shown on Exhibit A or at such other locations determined by mutual
agreement, for the Additional Pumping Facilities. Pennsy will further grant AES
an irrevocable, perpetual, and uninterrupted license to enter easements that
currently exist in favor of Pennsy that are located between the Pennsy Property
and the Creek.
(d) The easements shall include the right to install
underground electrical cable or other utilities in the easement area, as well as
the right to construct and operate a reserve power generator in a generator shed
or house to be constructed by AES on the southwest corner of Quarry Pit #2.
(e) In addition, Pennsy will provide to AES, its agents, and
its designated contractors, for so long as it (or its approved assignee) uses
the AES Property for the Permitted Uses, as hereinafter defined,a general access
easement, for access to the Pumping Facilities and the Additional Pumping
Facilities. The easement and access agreements referenced in this section shall
be substantially in the form attached hereto as Exhibit 8.2, incorporated herein
by reference.
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8.3 Operation, Repair and Maintenance.
(a) From and after the Effective Date and for so long as the
Base Flow is available to AES, AES will be responsible for providing personnel
to operate the Pumping Facilities and the Additional Pumping Facilities, and for
the repair, replacement and maintenance of the Pumping Facilities and Additional
Pumping Facilities which AES acquires from Pennsy on the Effective Date or which
AES installs. AES shall make the decision of when and whether to repair or
replace such Pumping Facilities and Additional Pumping Facilities. All repair,
replacement and maintenance obligations shall be carried out consistent with
usual and customary commercial practices for such activities and in such a
manner as not to unreasonably impede or otherwise unreasonably interfere with
Pennsy's mining operations.
(b) If Pennsy chooses to improve, expand, upgrade or change
the Pumping Facilities and/or the Additional Pumping Facilities for any reason,
Pennsy may do so at Pennsy's sole cost and expense, provided, however, that no
such modifications shall increase the expenses for which AES is responsible or
have a material adverse effect on the Base Flow or the AES Plant operations
without the prior written consent of AES.
(c) AES shall, at its expense, maintain on the AES Property
or on the Pennsy Property, as reasonably determined by AES and Pennsy, metering
equipment to measure the Utility Expenses (as defined below) for and the
delivery of water to the AES Property. AES shall, if requested by Pennsy from
time to time, keep records of the daily amount of Utility Expenses and water
delivered to the AES Property and shall, upon request, provide written
notification to Pennsy of the amount of Utility Expenses and water so delivered.
8.4 Compliance with Permits. Except for AES's operational
responsibilities (as expressly provided herein) for the Pumping Facilities and
Additional Pumping Facilities, Pennsy shall be responsible for and obligated to
perform and maintain all conditions (past, present and future) on the Pennsy
Property or relating to Pennsy's operations and discharges in order to comply
with its Non-Coal Mining Operating Permit and any other Permit not related to
AES' operations applicable to the Pennsy Property, the Resco Property (when
acquired by Pennsy) or operation of Pennsy's business or the Prescott Quarry.
8.5 Utility Expense. AES will pay, when due, the Utility
Expenses for the Construction Requirements incurred under Section 8.1(a) for
pumping or otherwise and for (a) the Base Flow or (b) provided it is available
to AES, for 1,500 GPM, whichever is greater. Utility Expenses, unless
attributable to AES emergency water needs, which are above the Base Flow will be
paid by Pennsy, including the cost of pumping from the Pennsy West
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Tract to the Pennsy East Tract, or vice versa as determined by the needs of
Pennsy's quarrying activities. Utility Expenses shall include electricity, gas,
diesel, or other fuel and utility expenses for energizing and operating the
Pumping Facilities and the Additional Pumping Facilities.
8.6 Application/Condition. AES, at its sole cost and expense,
will file any Applications with the Regulatory Authorities necessary or
appropriate for approval of its utilization plan and all necessary Permits
therefor. AES and Pennsy agree to cooperate with one another and to negotiate,
in good faith, a resolution of any conditions which might be required by any of
the Regulatory Authorities in connection with approval of any such
Application(s). Pennsy shall have the right to review and approve all such
Applications, which approval shall not be unreasonably withheld, delayed or
conditioned.
8.7 Effective Date. The Effective Date of the operational
duties and responsibilities contained in this Section 8 shall be the earlier of
a date following receipt by AES and Pennsy of all Permits to allow operation of
the AES Plant, or shortly prior to a time when AES requires the Base Flow from
Pennsy, as determined by no less than ten (10) business day's written notice
given by AES to Pennsy.
8.8 Operational Pumping Changes. AES will consider any
operational pumping changes requested by Pennsy. AES will not unreasonably
withhold approval of such changes. In considering operational pumping changes,
AES will examine, among other criteria, Base Flow changes, the quality of the
Base Flow both to the AES Plant and the Creek, and the quantity of Base Flow to
the AES Plant and the Creek.
8.9 Right to Terminate.
(a) AES shall have the right to terminate its obligations
pursuant to this Section 8 if Pennsy is in default hereunder following the
giving of notice thereof and the expiration of all applicable cure periods set
forth in Section 10.10 hereof, or in the event of any determination that AES is
not entitled to the Water Rights provided in this Section 8 which in fact
terminates the availability of water as provided herein. AES may terminate this
Agreement without cause upon 3 months written notice to Pennsy, provided,
however, that the date of termination without cause may not occur sooner than 3
years after the Effective Date; and, provided further, that the termination of
the Agreement set forth in this Section 8 shall not relieve AES or Pennsy of or
from any duties or obligations which it was required to perform while the
provisions of this Section 8 were in effect.
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(b) Pennsy may terminate this Agreement after the Effective
Date if AES is in default of any of its obligations under this Section 8
following the giving of notice thereof and the expiration of all applicable cure
periods set forth in Section 10.10 hereof.
8.10 Future Recorded Agreement. The terms and provisions of
this Section 8 are intended to be further defined and developed as engineering
and design of the AES Plant and the machinery to be installed in it progress.
The provisions of Section 8, as so modified, are intended to be set forth in a
separate, recordable document, binding upon the parties hereto. The parties
agree to negotiate in good faith and execute an amendment to this Agreement
pursuant to Section 11.10 to reflect such changes.
9. Conrail
9.1 Easement. To the extent required for construction and
operation of the rail spur:
(a) AES will grant and convey to Pennsy or Conrail, or both,
as appropriate, a perpetual, non-exclusive easement and right-of-way for the
construction, reconstruction, operation, maintenance and repair of railroad
tracks over, across and upon the Resco Property to serve the Resco Property, the
AES Property and the Pennsy Property, it being understood that AES will use said
rail spur for the delivery of equipment and materials during construction of the
AES Plant; and
(b) Pennsy will grant and convey to AES or Conrail, or both,
as appropriate, a perpetual, non-exclusive easement and right-of-way for access
to (including loading and unloading therefrom) and the construction,
reconstruction, operation, maintenance and repair of railroad tracks over,
across and upon the Pennsy Property (other than the Pennsy Connecting Property)
and the Resco Property, if necessary.
(c) Such easements shall be substantially in the location
shown on Exhibit A (collectively the "Conrail Easements") and shall be in form
and content reasonably acceptable to Pennsy, which approval shall not be
unreasonably withheld, delayed or conditioned.
9.2 Conrail Utilities. AES and, as appropriate, Pennsy (on
the Resco Property), will grant and convey to Conrail, to Pennsy, or to any
appropriate Public or Private Utility a perpetual, non-exclusive easement and
right-of-way within the Conrail Easements, in form and content reasonably
acceptable to Pennsy, which approval shall not be unreasonably withheld, delayed
or conditioned, for the construction, reconstruction, operation, maintenance and
repair of any Utility necessary to the
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proper use, operation and functioning of the Conrail Easements as a railroad
spur, subject only to reasonable provisions for the use and protection of the
Pennsy Property, the AES Property and the AES Plant. If the easement and
right-of-way is to be granted to a Public or Private Utility, the form of
easement shall be the usual and customary form utilized by such Public or
Private Utility so long as it is reasonably acceptable to Pennsy, which approval
shall not be unreasonably withheld, delayed or conditioned, subject only to such
additional reasonable requirements of such Utility as are necessary to provide
appropriate service and protection to the AES Plant.
9.3 Applications and Permits. AES, at its sole cost and
expense except as stated in Section 9.4, will prepare for execution by AES and
Pennsy, as appropriate, and submit to Conrail or any other Regulatory Authority,
all Applications for all Permits necessary from Conrail or any Public or Private
Utility or Regulatory Authority having jurisdiction over the Conrail Easements.
Pennsy will, at its expense, prepare and cause its engineers and consultants to
prepare, all portions of any Applications and supporting data for all permits
and approvals necessary from Conrail or any Public or Private Utility or
Regulatory Authority having jurisdiction over the Conrail Spur, all to the
extent that the Conrail Spur is located on the Resco Property and the Pennsy
Property. To the full extent required by any Application, Pennsy shall be
responsible for and shall provide verification of any such information. All such
Applications, including the location, shall be satisfactory to AES and Pennsy,
in the exercise of reasonable, commercial discretion.
9.4 Expenses.
(a) Except as provided in Section 9.3, AES will be
responsible for, and will pay the expenses incurred for preparing all
Applications (including design cost) necessary for construction of the Conrail
Spur on the Conrail Property, and, provided the existing easement and rail bed
are utilized across the Resco Property, on the Resco Property. Provided that the
final design of the Conrail Spur utilizes the existing easement and existing
rail bed across the Resco Property to access the Pennsy Property, AES will be
responsible for the hard costs of initial construction thereof on the Conrail
Property and the Resco Property. Should the final design not utilize the
existing easement and existing rail bed across the Resco Property to access the
Pennsy Property, AES will be responsible for that portion of the hard costs of
construction for the existing bed and Pennsy will be responsible for all
incremental costs associated with the alternative location of the easement or
rail bed. In addition to any other condition precedent set forth herein, AES'
obligation to install the rail spur and switch are conditioned on the financial
closing for the construction of the
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AES Plant. Pennsy will be responsible for, and will pay the expenses incurred
for preparing all Applications (including design cost) necessary for
construction of the Conrail Spur on the Pennsy Property and the Resco Property,
all costs other than the hard costs of construction and, following initial
construction of the Conrail Spur by AES, all costs of reconstruction, operation,
maintenance and repair of the Conrail Spur on the Conrail Property, the Resco
Property and the Pennsy Property, including, without limitation, any maintenance
or licensing fees to Conrail, unless due to the negligence or intentional
misconduct of AES, in which case AES shall be responsible for such costs of
reconstruction, maintenance, and repair.
(b) The Conrail Spur shall be constructed by Conrail and AES,
under the supervision and control of Conrail and AES. Construction activities
shall be coordinated with Pennsy to tie into Pennsy's planned extensions of the
rail spur.
9.5 Financial Security/Release of AES.
Notwithstanding any provisions of this Section 9 which may impose duties on AES,
Pennsy alone, and not AES, will be responsible for timely providing any and all
financial security required by Conrail or any Governmental Authority in
connection with the construction, operation or maintenance of the Conrail Spur.
Following initial construction of the Conrail Spur, Pennsy shall assume all
obligations and liabilities incident to the operation and maintenance thereof,
and shall secure the Release of AES by Conrail, any Governmental Authority, or
any other legal person or entity with which AES may have contracted or to which
AES may be obligated in connection with the operation and maintenance of the
Conrail Spur.
9.6 Cooperation Expedited. Pennsy will not be obligated to
complete the design and construction of the Conrail Spur on the Pennsy Property,
but will fully and promptly cooperate with AES, its design professionals and
contractors to secure an expedited design approval of the Conrail Spur on the
Conrail Property and the Resco Property, and its construction thereon.
9.7 Delays. Provided AES uses reasonable commercial efforts
to pursue securing Approvals for the Conrail Spur, the failure to secure any or
all Permits for or any commercially reasonable delays in construction of the
Conrail Spur shall not excuse or delay the performance by Pennsy or AES of any
other duties or responsibilities in this Agreement. Furthermore, unless AES
determines not to pursue or not to construct and operate the AES Plant, the
obligations of the parties hereunder shall survive closing on any other portions
of this Agreement.
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10. General
10.1 Plans, Applications, Permits, and Licenses. Unless
otherwise noted, AES and its engineers shall have the responsibility of
preparing the Applications required for construction of the AES Plant, including
access and utilities to serve the AES Plant and need not receive the approval or
review of Pennsy except to the extent that the Applications are for easements or
resources on the Resco Property or Pennsy Property, in which case AES will, when
such plans and Applications have been preliminarily approved by AES internally
and are considered to be substantially final, submit or cause the AES engineers
to submit progress plans and Applications to Pennsy for review and approval.
Pennsy agrees to review such plans and provide approval or conditional approval
with explanatory comments with respect thereto as expeditiously as possible, but
no later than fifteen (15) days after each such submission by AES. AES will
consider such comments, but Pennsy shall not have the right to reject the
Applications (or any portion thereof) based upon matters which are addressed by
this Agreement.
10.2 Mutual Cooperation.
(a) Pennsy and AES agree, in all respects, to cooperate
promptly, in good faith, and reasonably with each other in the Application
process (including the execution of Applications by Pennsy when necessary) and
in providing or developing plans, engineering studies, traffic studies and
surveys, drainage, water quality, discharge and other similar studies and
surveys which are necessary or incidental to the AES, Pennsy and Resco
Applications, including the provision to AES of appropriate data for purposes of
completion of any aspects of the AES Applications.
(b) AES will provide or will cause its engineers to provide
drafts of Applications, final Applications and, where appropriate,
specifications with respect thereto for review and comment. Pennsy agrees to
review such Applications and to provide explanatory comments with respect
thereto, as expeditiously as possible, but no later than fifteen (15) days after
each such submission by AES. Pennsy will be responsible for and will pay all
engineering, legal and other professional fees and expenses which Pennsy incurs
in connection with the foregoing Applications, and AES will be responsible for
and will pay all of the engineering, legal and other professional fees and
expenses which it incurs in connection with the foregoing Applications. In
addition, AES shall pay all application, filing fees and all other costs of any
type incurred in connection with any of the Applications.
(c) In the event that any Regulatory Agency requires Pennsy
to execute an Application or to provide financial security
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in connection therewith, Pennsy will, upon providing its approval in accordance
with the terms of this Agreement, execute such Applications and, if the credit
for the security and primary liability is on AES, will execute any bonds, letter
of credit applications, or other similar documents required to secure the
issuance thereof, provided there is no material financial or other exposure to
Pennsy which is not indemnified by AES to the reasonable satisfaction of Pennsy.
10.3 Pennsy Operations.
(a) Restrictions.
(1) Notwithstanding any change in the laws or regulations
which govern quarry operations, Pennsy will not within twenty-five (25) feet
from any boundary line of the AES Property or within twenty-five (25) feet of
the boundary line of any permanent easement (other than the Storm Water Easement
and the Drainage Easements) granted to or for the benefit of AES pursuant to
this Agreement:
(i) conduct or permit any quarrying or other rock or
subsurface excavation;
(ii) conduct or permit significant or extensive excavation;
or
(iii) conduct or permit any blasting activities.
Furthermore, Pennsy will not violate any restrictions or limitations currently
applicable to Pennsy, whether imposed or applicable by operation of law,
regulations or conditions to its Non-Coal Mining Permit, with respect to
blasting or similar operations conducted by Pennsy on the Pennsy Property.
(2) AES, in connection with any and all of its activities
contemplated by this Agreement, will not unreasonably interfere with, delay,
obstruct, impede or otherwise compromise or cause or allow to be so affected the
ongoing, uninterrupted and continuous quarrying and related operations of Pennsy
at the Prescott Quarry. Pennsy, in connection with any and all of its activities
contemplated by this Agreement, will not unreasonably interfere with, delay,
obstruct, impede or otherwise compromise or cause or allow to be so affected the
ongoing, uninterrupted and continuous operation of the AES Plant and the use by
AES of the AES Property and the various easements described herein. Should any
activity of either party present a material, substantial and adverse
interference to the other party, the parties will work with and cooperate with
one another to time and schedule operations to minimize such interference.
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(b) Limited Conditional Consent. Notwithstanding the
foregoing restrictions, so long as no event or condition on the Pennsy Property
or the Resco Property has occurred or is occurring which causes or would
potentially, reasonably cause damage to the buildings or other structures or
improvements on the AES Property or to improvements constructed by AES or any
Public or Private Utility or Regulatory Authority on the AES Property or in any
easements granted by Pennsy pursuant to this Agreement, then AES agrees that
Pennsy may quarry to within 100 feet of any such buildings, structures or other
improvements. AES will provide to Pennsy, from time to time, when reasonably
requested by Pennsy, written confirmation of this conditional undertaking.
(c) Pennsy Operational Changes.
(1) Without limiting or modifying any of the rights provided
to AES pursuant to this Agreement, in the event Pennsy should contemplate any
changes in its operations which might have a material adverse impact upon the
operations of AES, Pennsy will provide reasonable advance written notice to AES.
Those changes are intended to include, without limitation, any activities which
might interrupt access to or utility service to or from the AES Property (even
on a temporary basis); or stormwater drainage from the AES Property; or the
supply of water to the AES Property; or the quality or characteristics of the
water in the Pennsy quarries being supplied (or made available) to the AES
Property.
(2) Upon receipt of such notice, AES shall have the right to
consult with Pennsy; to have access to any and all reports or studies prepared
by Pennsy with respect to such operational changes (or the background to such
operational changes); to make recommendations to Pennsy concerning the proposed
changes, including modifications to the proposed operational changes; and, if
deemed appropriate by AES, to compensate Pennsy for modifications to its
proposed operational plans in order to avoid any adverse impact to the
operations of AES.
(3) Each party will treat as confidential any confidential or
propriety materials or studies or other materials which are furnished pursuant
to the provisions of this section, and will not disclose, use, publish or
display such information within or outside its organization without the consent
of the other party, it being the intent of both parties that they will cooperate
in good faith to reach a resolution of any proposed operational changes which
might have an adverse impact on the AES operations.
10.4 Closing and Conditions Precedent to Closing.
Closing of the transactions contemplated in this Agreement, other
than as contemplated under Section 7.2(b), (the "Closing") shall
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be held upon not less than ten (10) days nor more than 60 days following written
notice from AES to Pennsy, at 10:00 a.m. at the offices of Wix, Wenger &
Xxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or at a
location that is mutually acceptable to the parties, and on or before March 31,
1999 (the "Closing Date").
(a) The obligations of AES to close on the transactions
contemplated by this Agreement are conditioned and contingent upon the
occurrence of the following:
(1) AES securing (at AES' sole cost and expense except as
expressly provided herein) all final, unappealable permits, licenses and
approvals which AES, in its sole discretion, deems necessary or desirable for
the construction, operation, maintenance and repair of the AES Plant, including
the acquisition of all rights-of-way and services necessary therefor.
(2) AES securing for its sole benefit andat AES' sole cost
and expense an environmental study or studies of the Resco Property indicating
no condition on or affecting the Resco Property which AES, in the exercise of
its sole discretion, is not willing to remediate or which AES believes would
expose it to an unreasonable risk.
(3) AES closing on all real estate acquisitions and loans
which AES, in its sole discretion, deems essential for the acquisition of the
necessary property rights for and construction and operation of the AES Plant.
(4) Pennsy shall have delivered to AES on or before the date
of Closing, in a form reasonably acceptable to AES, unless otherwise expressly
provided herein, all of the documents and other information required to be
delivered by Pennsy pursuant to Section 10.4.1 and that may be necessary to be
delivered by Pennsy to AES or a Public or Private Utility or the Township for
the benefit of AES, to complete the transactions contemplated in this Agreement.
(5) All of Pennsy's representations and warranties made in
this Agreement shall be true and correct as of the date hereof and as of the
date of Closing as if then made; there shall have occurred no material adverse
change to the Resco Property, since the date hereof except changes expressly
contemplated herein; Pennsy shall have materially performed all of its
respective covenants and other obligations under this Agreement; and Pennsy
shall have executed and delivered to AES at Closing a certificate to the
foregoing effect.
(6) AES shall have obtained affirmative title insurance for
the easements that are set forth in this Agreement
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or that may otherwise be required for the operation of the AES Plant.
(7) AES shall have obtained a survey that is acceptable to
it, as set forth in Section 10.6 hereof.
AES's obligations under this Agreement are subject to AES being satisfied, in
its reasonable discretion, that all of the foregoing conditions (individually,
"Pennsy Condition Precedent" and collectively, "Pennsy Conditions Precedent")
applicable thereto have been fulfilled or can be fulfilled on or prior to
December 31, 1999 (the "Contingency Date").
(b) The obligations of Pennsy to close on the transactions
contemplated by this Agreement are conditioned and contingent on the occurrence
of the following:
(1) AES shall have delivered to Pennsy, on or before the date
of Closing, in a form reasonably acceptable to both AES and Pennsy, unless
otherwise expressly provided herein, all of the documents and other information
required to be delivered by AES pursuant to Section 10.4.1 and that may be
necessary to be delivered by AES to Pennsy, for the benefit of Pennsy to
complete the transactions contemplated in this Agreement.
(2) All of AES' representations and warranties made in this
Agreement shall be true and correct as of the date hereof and as of the date of
Closing as if then made; there shall have occurred no material adverse change to
the Resco Property, since the date hereof except changes expressly contemplated
herein; AES shall have materially performed all of its respective covenants and
other obligations under this Agreement; and AES shall have executed and
delivered to each other at Closing a certificate to the foregoing effect.
(3) Pennsy shall have obtained title insurance evidencing
good and marketable fee simple title to the Resco Property as provided herein.
Pennsy's obligations under this Agreement are subject to Pennsy being satisfied,
in its reasonable commercial discretion, that all of the foregoing conditions
(individually, "AES Condition Precedent" and collectively, "AES Conditions
Precedent") applicable thereto have been fulfilled or can be fulfilled on or
prior to December 31, 1999 (the "Contingency Date").
10.4.1 Closing Deliveries. The following deliveries shall
occur at the Section 10.4 Closing, unless otherwise waived by AES or Pennsy, as
applicable (in which case that item will then become a post-Closing delivery);
possession of the Resco Property shall be delivered to Pennsy; the Access Road
Easement, the Storm Water Easement and the Pumping Facilities easements
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shall be executed and granted to AES; and the East Street Easement, the Met-Ed
Easement and the Conrail Easements shall be executed and granted to the
appropriate parties.
10.4.2 Further Assurances; Additional Agreements. Pennsy and
AES each covenant and agree to sign, execute and deliver, or cause to be signed,
executed and delivered, and to do or make, or cause to be done or made, upon the
written request of the other party, any and all agreements, instruments, papers,
deeds, acts or things, supplemental, confirmatory or otherwise, as may be
reasonably required by either party hereto for the purpose of or in connection
with consummating the transactions described. This covenant survives as long as
is necessary to consummate the transactions and intent described herein,
including beyond the Closing Date. To that effect, Pennsy and AES acknowledge
that various agreements in addition to this Agreement will have to be entered
into (some of which must be in recordable form) in order to cause the
transaction contemplated herein to occur, including but not limited to, the
following generally described agreements:
a) Access Road Easement Agreement;
b) Deed of Dedication for Prescott Road Improvements;
c) Deed of Dedication for Access Road Improvements;
d) East Street Easement Agreement;
e) Met-Ed Easement Agreement;
f) Storm Water Easement Agreement;
g) Pumping Facilities Agreement, Easements and Licenses;
h) Conrail Easements (both for railroad and related
Utilities); and
i) Temporary Construction Easements.
All recording charges and real estate transfer taxes due in connection with the
executing and delivery or recording of any of the above-referenced agreements or
instruments, and in connection with all other agreements contemplated by this
Agreement (except as set forth in Section 7.2(c)), shall be the responsibility
of AES.
10.4.3 Pre-Closing Deliveries. In order to secure some of the
Approvals, AES may require, prior to Closing, delivery of some of the easements
or other documents granting property rights or otherwise contemplated herein, to
be provided
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by Pennsy, including, without limitation, the documents specifically identified
in Section 10.4.2. Pennsy agrees to execute and deliver any and all such
documents, provided that, if requested by Pennsy, any such document contains as
a condition precedent to its effectiveness that AES has closed on substantially
all of the transactions contemplated by this Agreement.
10.5 Right of Access. From and after the date of this
Agreement, AES shall:
(i) conduct such tests, inspections and investigations with
regard to the Pennsy Property, the Resco Property and the AES Property (if and
to the extent permitted under its option for the AES Property), (collectively
the "Properties") as AES deems appropriate;
(ii) have the right (together with AES's engineers,
surveyors, architects, contractors and other designated agents), subject to the
terms of its option for the AES Property, to enter upon the Properties and to
conduct such tests, investigations, measurements and other inspections of the
Properties, as AES may deem desirable; and
(iii) determine, in AES's sole and absolute discretion,
whether the Properties are suitable in all respects for development in
accordance with AES's plans therefor or whether AES otherwise desires to proceed
with the transaction contemplated by this Agreement. Pennsy shall reasonably
cooperate with AES's conduct of such tests, inspections and investigations.
Notwithstanding anything contained in this Agreement to the contrary, any entry
by AES or any of its engineers, surveyors, architects, contractors or other
designated agents onto the Pennsy Property or the Resco Property shall be at
such person's sole risk and Pennsy shall have no responsibilities or obligations
with respect thereto. Furthermore, any such entry shall be subject to reasonable
rules and requirements established by Pennsy, such as checking in, wearing
goggles and hard hats and other rules reasonably necessary to comply with
federal or state laws, regulations or orders).
10.5.1 Temporary Construction Easement. Pennsy will grant and
convey to AES and to any applicable Utility, as appropriate, a temporary
construction easement of twenty-five (25) feet in width unless a greater width
is necessary (due to, for example, the presence of a spoil pile which must be
graded to create stable slopes), such temporary easement to be on each side
(owned by Pennsy) of any permanent easement which Pennsy has agreed herein to
provide, for the purpose of constructing improvements in and to such permanent
easement. AES and any such
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Utility utilizing such construction easement shall coordinate use thereof with
Pennsy and will, subject to construction requirements, make reasonable efforts
to minimize interference with Pennsy's operations on such temporary construction
easements. All such easements shall generally follow the form of easement
utilized by such Public or Private Utility, shall, to the extent deviations from
such form are deemed appropriate by Pennsy, be negotiated promptly and in good
faith by Pennsy, and shall be reasonably acceptable to both Pennsy and such
Public or Private Utility; in the case of AES, in form and content reasonably
acceptable to Pennsy, incorporated herein by reference, and shall expire one
year following completion of construction and written acceptance thereof by AES
or the applicable Utility.
10.5.2 Indemnification Relating to Entry on Property.
(a) Except for Pennsy's negligence or intentional misconduct,
AES agrees to indemnify, defend and hold Pennsy harmless from and against any
and all damages, cost, loss, liability, charge, claim or lien (including
reasonable attorneys' fees and costs) arising from any entry by or activity of
or on behalf of AES on the Resco Property or the Pennsy Property both before and
after the Effective Date.
(b) Except for AES' negligence or intentional misconduct,
Pennsy agrees to indemnify, defend and hold AES harmless from and against any
and all damages, cost, loss, liability, charge, claim or lien (including
reasonable attorneys' fees and costs) arising from any entry by or activity of
or on behalf of Pennsy on the Resco Property while owned by AES or on the AES
Property.
10.5.3 Delivery of Materials. To facilitate AES's inspection
and review of the Property, Pennsy, within the thirty (30) day period
immediately following the date of execution and delivery of this Agreement by
each of the parties hereto, will use reasonable, good faith efforts to deliver
or cause to be delivered to AES copies of all Records and Plans and all Licenses
and Permits in the possession of Pennsy or under the reasonable control of
Pennsy regarding the Pennsy Property.
10.6 Survey. Prior to the Contingency Date, AES, at AES's
sole cost and expense, shall cause a survey ("Survey") of the AES Property and
the Resco Property, to be prepared by a Pennsylvania Registered Surveyor. The
Survey shall be certified to AES, Pennsy, the Title Insurer and such other
persons as AES shall reasonably deem necessary as having been prepared in
compliance with the Pennsylvania Land Survey Standards and the Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys adopted in 1992 and meeting
the accuracy requirements of an "Urban" survey. The Survey may, at AES's
election, contain
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such information as AES or AES's lender may require and shall be sufficient to
cause the Title Insurer to delete the general exceptions relating to survey
matters applicable to the AES Property and the Resco Property. AES shall also
cause all easements contemplated by this Agreement to be surveyed and described
to the extent necessary, showing all other information typically provided for
easements. Said description need not meet ALTA/ACSM requirements.
10.7. Representations and Warranties of Pennsy. Pennsy hereby
represents and warrants to AES that, the following are true and correct on and
as of the date hereof, shall continue to be true and correct as the Closing
Date, and shall survive the Closing and delivery of the Deed.
(a) All requisite action (corporate or otherwise) has been
taken by Pennsy in connection with the entering into of this
Agreement and the instruments referenced herein, and the
consummation of the transaction contemplated hereby. To
Pennsy's knowledge, no consent of any creditor, shareholder,
judicial or administrative body, governmental or
quasi-governmental authority, or other party is required for
the performance of Pennsy's obligations hereunder. The
individual(s) executing this Agreement and the instruments
referenced herein on behalf of Pennsy have the legal power,
right and actual authority to bind Pennsy to the terms and
conditions hereof and thereof. This Agreement and all
documents required hereby to be executed by Pennsy are and
shall be valid, legally binding obligations of and enforceable
against Pennsy in accordance with their respective terms,
subject only to applicable bankruptcy, insolvency,
reorganization, moratorium laws or similar laws or equitable
principals affecting or limiting the rights of contracting
parties generally.
(b) Pennsy has received no written or oral notice of any
violation of law, municipal ordinance or other governmental
requirement affecting the Pennsy Property, or any portion
thereof which has not yet been remedied or cured by Pennsy.
Pennsy does not have knowledge that any governmental authority
contemplates issuing such a notice or that any such violation
exists.
(c) Pennsy has received no written or oral notice of any
condemnation or eminent domain proceedings, or of negotiations
for purchase in lieu of condemnation, relating to the Pennsy
Property, or any portion thereof. Pennsy does not have
knowledge that any condemnation or eminent domain proceedings
have been
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commenced or threatened in connection with the Pennsy
Property, or any portion hereof.
(d) Pennsy is not a party to any existing agreement, contract
or commitment to sell, convey, let, assign, transfer, provide
rights of first refusal or other similar rights with respect
to, or otherwise dispose of, any part of the Pennsy Property,
or any interest therein, or occupancy right thereto, other
than this Agreement and Pennsy does not have knowledge of the
existence of any such agreement, contract or commitment
regarding the Pennsy Property, or any part thereof, other than
this Agreement. Except for this Agreement and the Permitted
Exceptions, to Pennsy's knowledge, neither Pennsy, nor any
person or entity claiming by, through or under Pennsy, has
done, suffered or permitted anything whereby any lien, claim
or right of another has been created against the Pennsy
Property, or any portion thereof or any interest therein.
Pennsy has not received written notice, and has no knowledge,
or any current default or breach under the terms and
provisions of any of the Title Documents.
(e) Pennsy has no knowledge of any existing laws, ordinances
or restrictions, including, without limitation, so-called
recapture agreements, which would prevent or limit the right
or ability of AES, or its lessees, invitees, successors or
assigns, to use the Pennsy Property as contemplated by this
Agreement or to obtain any government approvals necessary to
redevelop the Property for that purpose.
(f) Pennsy has not received written notice of, and to the best
of Pennsy's knowledge, there are no, pending threatened or
contemplated actions, suits, arbitrations, claims or
proceedings, at law or in equity, adversely affecting the
Pennsy Property or which Pennsy is, or will be a party by
reason of Pennsy's ownership of the Pennsy Property, which
will adversely affect the Pennsy Property.
(g) To the best of Pennsy's knowledge, (a) no attachments,
execution proceedings, assignments for the benefit of
creditors, insolvency, bankruptcy, reorganization or other
proceedings are pending or threatened against Pennsy nor (b)
are any such proceedings contemplated by Pennsy.
(h) All operations or activities upon, or use or occupancy of,
all or any part of the Pennsy Property by Pennsy, and to the
best of Pennsy's knowledge, any current occupant or tenant or
any prior tenant,
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occupant or owner, are in all material respects in compliance
with all state, federal and local laws and regulations
governing or in any way relating to the generation, handling,
manufacturing, treatment, storage, use, transportation,
spillage, leakage, dumping, discharge, release or disposal
(whether accidental or intentional) of any toxic, hazardous or
radioactive substances, materials or waste. Neither Pennsy
nor, to Pennsy's knowledge, any current occupant or tenant or
any prior tenant, occupant or owner, of all or any part of the
Pennsy Property, has engaged in or permitted any dumping,
discharge, disposal, spillage or leakage (whether legal or
illegal, accidental or intentional) of such toxic, hazardous
or radioactive substances, materials or waste, at, on, in,
under, or about the Pennsy Property. Pennsy has not received
written notice of, and to the best of Pennsy's knowledge, (i)
there is no proceeding or inquiry by any authority with
respect to the presence of any toxic, hazardous or radioactive
substance, material or waste, including, without limitation,
hazardous materials, in, on, under or about the Pennsy
Property or the migration thereof from or to other property,
and (ii) there has been no production, storage or disposal on
the Pennsy Property of any Hazardous Materials. With the
exception of four (4) registered underground storage tanks
("UST's") and certain other USTs that were removed in
accordance with applicable regulations, there are not now and,
and to the best of Pennsy's knowledge, have never been any
underground storage tanks located on or under the Pennsy
Property.
(i) All instruments, documents, lists, schedules and items
delivered to AES by Pennsy pursuant to this Agreement will
fairly present the information set forth in a manner that is
not misleading and will be true, complete and correct in all
material respects on the date of delivery and upon the Closing
Date, as they may be updated, modified or supplemented in
accordance with this Agreement.
The accuracy of the foregoing representations and warranties
shall be a condition to AES's obligations under this Agreement.
10.8 Representations and Warranties of AES. AES hereby
represents and warrants to Pennsy that the following are true and correct on and
as of the date hereof, shall continue to be true and correct through the Closing
Date, and shall survive the Closing:
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(a) There is no action, proceeding or investigation pending,
or to the best of AES's knowledge threatened, against AES
before and court or governmental department, commission,
board, agency or instrumentality that would have a material
adverse affect on AES's ability to perform its obligation when
and as required hereunder. AES has no knowledge of any basis
for any such action, proceeding investigation.
(b) All requisite action (corporate or otherwise) has been
taken by AES in connection with the entering into this
Agreement and the instruments referenced herein, and the
consummation of the transaction contemplated hereby. No
consent of any creditor, shareholder, judicial or
administrative body, governmental or quasi-governmental
authority, or other party is required for the performance of
AES' obligations hereunder. The individual(s) executing this
Agreement and the instruments referenced herein on behalf of
AES have the legal power, right, and actual authority to bind
AES to the terms and conditions hereof and thereof. This
Agreement and all documents required hereby to be executed by
AES are and shall be valid, legally binding obligations of and
enforceable against AES in accordance with their terms,
subject only to applicable bankruptcy, insolvency,
reorganization, moratorium laws or similar laws or equitable
principals affecting or limiting the rights of contracting
parties generally.
(c) AES has received no written or oral notice of any
violation of law, municipal ordinance or other governmental
requirement affecting the Resco Property, or any portion
thereof which has not yet been remedied or cured by AES. AES
does not have knowledge that any governmental authority
contemplates issuing such a notice or that any such violation
exists.
(d) AES has received no written or oral notice of any
condemnation or eminent domain proceedings, or of negotiations
for purchase in lieu of condemnation, relating to the Resco
Property, or any portion thereof. AES does not have knowledge
that any condemnation or eminent domain proceedings have been
commenced or threatened in connection with the AES Property,
or any portion hereof.
(e) AES is not a party to any existing agreement, contract or
commitment to sell, convey, let, assign, transfer, provide
rights of first refusal or other similar rights with respect
to, or otherwise dispose of, any part of either the AES
Property or the Resco Property, or any interest therein, or
occupancy right
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thereto, other than as provided in this Agreement and AES does
not have knowledge of the existence of any such agreement,
contract or commitment regarding either the Resco Property or
the AES Property, or any part thereof, other than as provided
in this Agreement. Except as provided in this Agreement,
neither AES, nor any person or entity claiming by, through or
under AES, has done, suffered or permitted anything whereby
any lien, claim or right of another has been created against
the Resco Property, or any portion thereof or any interest
therein. AES has not received written notice, and has no
knowledge, or any current default or breach under the terms
and provisions of any of the title documents for the Resco
Property.
(f) AES has no knowledge of any existing laws, ordinances or
restrictions, including, without limitation, so-called
recapture agreements, which would prevent or limit the right
or ability of AES, or its lessees, invitees, successors or
assigns, to use the Resco Property as contemplated by this
Agreement or to obtain any government approvals necessary to
redevelop the Resco Property for that purpose.
(g) AES has not received written notice of, and to AES'
knowledge, there are no, pending threatened or contemplated
actions, suits, arbitrations, claims or proceedings, at law or
in equity, adversely affecting the AES Property or the Resco
Property or which AES is, or will be a party by reason of AES'
ownership of the AES Property or the Resco Property, which
will adversely affect either such property.
(h) To AES' knowledge, (a) no attachments, execution
proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings
are pending or threatened against AES nor (b) are any such
proceedings contemplated by AES.
(i) All instruments, documents, lists, schedules and items
delivered to Pennsy by AES pursuant to this Agreement will
fairly present the information set forth in a manner that is
not misleading and will be true, complete and correct in all
material respects on the date of delivery and upon the Closing
Date, as they may be updated, modified or supplemented in
accordance with this Agreement.
The accuracy of the foregoing representations and warranties shall be a
condition to Pennsy's obligations under this Agreement.
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10.9 Indemnification Relating to Breach of
Representation or Warranty.
(a) AES and Pennsy hereby indemnify and hold each other
harmless, from and against all damages, costs, expenses, liabilities, penalties
and fines, including without limitation, attorneys' fees, disbursements, expert
witness fees, paralegal fees, reporters fees, reproduction and printing costs,
incurred in connection with any suit, proceeding, legal process or appeal, and
amounts paid in settlement of same, which may be incurred by the other as a
result of remedying any representation or warranty set forth in this Agreement
which is discovered to have been false when made, or materially misleading as it
relates to the essence of this Agreement.
(b) This Section 10.9 shall survive Closing, the Effective
Date and shall remain in effect for a period of six years following the closing.
10.10 Default and Remedies Upon Default.
(a) Default. The occurrence of any of the following events
shall, at the election of the non-defaulting party, constitute an Event of
Default hereunder:
(i) Failure of either party, within fifteen (15) days
following written notice of failure to make any payment when
due, to make such payment to the other as contemplated herein.
(ii) Subject to (b) below, the failure of either party to
perform any duty or obligation undertaken by such party in
this Agreement or the documents implementing it.
(iii) Subject to (b) below, the failure of the transaction
contemplated herein to close because of the failure of either
party to perform any of its duties as required hereunder. The
non-occurrence of a Condition Precedent shall not be deemed to
be such a failure.
(iv) The entry of any order, judgment or decree of any court
of competent jurisdiction approving a petition appointing a
receiver, sequestrator, trustee or liquidator for either party
or any of such party's property which is the subject of this
Agreement, which order, judgment or decree shall continue to
be in effect for a period in excess of sixty (60) days.
(v) If either party shall be adjudicated bankrupt or make an
assignment for the benefit of creditors if such party shall
institute any proceeding under any law
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related to bankruptcy or insolvency or if the same shall be
instituted against either party and not be dismissed within
sixty (60) days.
(vi) Commencement of any action or proceeding affecting either
party's properties hereunder or any part thereof which would
have the effect of materially impairing the rights of the
other party hereto, which action or proceeding is not stayed
or terminated before having a material adverse effect on the
other party and which is not eventually dismissed or
terminated within two (2) years and without having a material
adverse effect on such other party.
(vii) If any representation, warranty or covenant or any other
information furnished by a party in connection with this
transaction shall prove to have been false or erroneous in any
material respect when made or furnished.
(b) Notice of Default. Upon the occurrence of a default
pursuant to subsection (a)(ii) or (a)(iii), the defaulting party shall have
thirty (30) days from the receipt of notice from the non-defaulting party in
which to cure such default. If the nature of such default makes it incapable of
being cured within thirty (30) days following notice, then the defaulting party
shall, provided that the defaulting party commences such a cure within thirty
(30) days and diligently pursues the same, have a reasonable time in which to
cure, not to exceed one year unless otherwise expressly provided in an easement
or other agreement contemplated by this Agreement.
(c) Remedies Upon Default. This Agreement relates to real
estate, and of rights and obligations of parties with respect thereto. As such,
the terms and provisions of it are unique to the parties, and not susceptible to
ordinary damages alone. Accordingly, each party acknowledges that upon the
occurrence of an Event of Default, damages alone are not a sufficient remedy, so
the terms and provisions hereof may be specifically enforced by an injunction or
other equitable remedy. Upon the occurrence of an Event of Default, the
non-defaulting party shall have any and all remedies available against the other
under this Agreement, at law or in equity, including, without limitation:
(i) specific performance;
(ii) the right of set off; and
(iii) to recover from the defaulting party all actual damages
incurred as a result of such default, including costs of
enforcement, collection and reasonable
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attorneys' fees. Specifically, in the event of an action to
enforce any terms or provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable legal
fees and costs actually incurred in the enforcement of such
party's rights, including, without limitation, legal fees
incurred in evaluating such party's rights prior to filing any
legal proceeding.
10.11 Interest. In the event that any party hereto shall fail
to make any payment which is due pursuant to the terms of this Agreement, then
such party shall be obligated to pay, from the date of such due date, until
collection, whether before or after judgment, interest at the prime rate of
interest in effect from time to time, as published in The Wall Street Journal,
or any successor publication, plus three (3%) percent (the "Interest Rate"). The
Interest Rate shall be adjusted monthly, on the first business day of each
month, and the Interest Rate as so determined shall be applicable for the entire
month.
10.12 Preferred Vendor Status. Provided there is no Event of
Default by Pennsy hereunder, and provided AES determines to construct the AES
Plant, AES agrees to purchase, or to cause its contractors to purchase, if
economically appropriate, the following materials from Pennsy for use in the
initial construction of the AES Plant and all related improvements:
stone, gravel, sand, concrete and asphalt paving.
11. Miscellaneous
11.1 Construction/Maintenance/Cure of Defaults. In all cases
where there are construction and ongoing maintenance, reconstruction or repair
responsibilities for either AES or Pennsy as stated in this Agreement, all such
activities shall be carried out and performed diligently and in a good and
workmanlike manner. If any Event of Default occurs with respect to any such
responsibility, or any other obligation set forth in or contemplated by this
Agreement, then the non-defaulting party may, but shall not be required to, cure
such default on behalf of the defaulting party. The expense of such cure, with
interest accruing and payable thereon at the Interest Rate from the date such
expense is incurred by the non-defaulting party to the date of payment by the
defaulting party, shall be payable to the defaulting party to the non-defaulting
party upon demand.
11.2 Assignment, etc.
(a) AES shall have the right to assign this Agreement, and
the easements and other agreements between Pennsy and AES which are contemplated
hereby, to any AES Affiliate which will, in accordance with this Agreement,
engage in the construction and
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operation of a power generating plant or a substantially similar, related or
ancillary use to a power generating plant, on the AES Property (the "Permitted
Use").
(b) AES may assign its right, title and interest in and to
this Agreement and the easements and other agreements between AES and Pennsy
contemplated hereby to any lender to AES as collateral security for the
Permitted Use.
(c) Except as provided in Section 11.2(a) and 11.2(b), AES
may not assign its rights under this Agreement and any other agreements between
Pennsy and AES contemplated hereby unless the proposed assignee (1) delivers to
Pennsy evidence which, in Pennsy's reasonable commercial judgment, which
judgment shall not be unreasonably withheld, delayed or conditioned, indicates
that such assignee possesses the technical expertise and the financial capacity
and stability to undertake the Water Pumping set forth in Section 8 hereof and
under the other agreements related to water contemplated hereby, (2) will be
engaged in the Permitted Use on the AES Property and (3) delivers to Pennsy a
written statement that this Agreement (and the related agreements referenced
herein) are affirmed and ratified.
(d) For purposes of this Section 11.2:
(1) any transfer or change in control of AES (or any approved
assignee) by operation of law or otherwise, provided that the Permitted Use
continues after such transfer or change in control, shall be deemed an
assignment hereunder, including, without limitation, any merger, consolidation,
dissolution or any change in the controlling equity interests of AES (or any
approved assignee), whether in a single transaction or a series of related
transactions; and
(2) "AES Affiliate" shall mean, each person that, directly or
indirectly, controls or is controlled by or is under common control with AES.
For the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to AES, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of AES,
whether through the ownership of voting securities or by contract or otherwise.
11.3 Invalidity of Provisions. In the event any one or more
of the provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provisions had never been contained herein.
-39-
11.4 Gender/Number. Whenever the context herein so requires,
the singular number shall include the plural, the plural shall include the
singular, and the use of any gender shall be applicable to all genders.
11.5 Heirs, Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors and assigns. Nothing contained in this Section
11.5 shall be deemed to void or in any way limit the restrictions or
requirements set forth in Section 11.2.
11.6 Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof.
All prior negotiations, agreements and understandings, whether written or oral,
are either merged into this Agreement or are hereby superseded.
11.7 Headings. The headings or captions preceding the
sections in this Agreement are inserted for convenience of reference only and
shall not be construed in interpreting this Agreement.
11.8 Governing Law; Jurisdiction and Venue.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without reference
to its conflicts of laws provisions.
(b) Jurisdiction and venue for all disputes under this
Agreement shall be in the United States District Court for the Middle District
of Pennsylvania, provided the disputes meets the requirements for federal
diversity jurisdiction. Otherwise, jurisdiction and venue shall be in the
Lebanon County, Pennsylvania Court of Common Pleas.
11.9 Notice. Any notice required hereunder shall be hand
delivered, sent by certified United States mail, postage prepaid, or sent by
overnight delivery service requiring receipt (such as Federal Express or UPS) to
the parties, and shall be deemed to have been given upon actual receipt or
refusal of such notice, at the addresses set forth below:
To AES at: AES Ironwood, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
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With a copy to: Wix, Wenger & Xxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
To Pennsy at: Pennsy Supply, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxxx, Esquire
Saul, Ewing, Xxxxxx &
Xxxx LLP
PNI Tower
0 X. Xxxxxx Xxxxxx, 0xx Xxx.
Xxxxxxxxxx, XX 00000
11.10 Waiver, Modification or Amendment. Failure of any party
to exercise any of their respective rights under this Agreement upon the
default, nonperformance or defective performance by any other party of any
condition, promise or provision contained in this Agreement shall not be
construed as a waiver of that or any subsequent default, nonperformance or
defective performance. No waiver, release, modification or amendment of any of
the terms, conditions or provisions of this Agreement shall be valid or relied
upon by any party or offered at any judicial proceeding or otherwise, unless in
writing and duly executed by all parties hereto.
11.11 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be considered an original instrument and
all of which together shall be considered one and the same agreement, and shall
become effective when counterparts, which together contain the signatures of
each party, shall have been delivered to Buyer and Seller. Delivery of executed
signature pages by facsimile transmission shall constitute effective and binding
execution and delivery of this Agreement.
11.12 Telecopier. This Agreement may be executed by each
party hereto on separate counterparts. When such executed counterparts have been
exchanged by telecopier among all parties, this Agreement shall be delivered,
binding, and in full force and effect. Thereafter, the parties will make good
faith efforts to exchange original signed counterparts.
11.13 Survival. Any provisions of this Agreement which are
expressly or impliedly intended to be performed after Closing shall survive any
and all Closings hereunder.
11.14 Consent of Mortgagees. Pennsy and AES shall each
obtain, without charge to the other, the written consent to this Agreement and
the transactions contemplated herein, in a
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form reasonably satisfactory to the other party, from any mortgagee or other
party holding a lien on the respective properties of Pennsy and AES. The
foregoing consent shall be delivered to the requesting party within thirty (30)
days of the execution of this Agreement.
11.15 Estoppel Certificates. Each party shall, without
charge, from time to time, within twenty (20) days after written request by the
other party, certify by a written instrument in a form reasonably requested by
the other party the effectiveness of this Agreement and any defaults, or lack
thereof, of either party under the terms of this Agreement and other factual
matters relevant to this Agreement. Such certificate shall be delivered to any
actual or proposed mortgagee, assignee or purchaser, or to any other person or
entity as may be reasonably requested by the other party.
11.16 Memorandum of Agreement. Until such time as the Water
Requirements agreement contemplated by Section 8 and the Access Easement, East
Street Easement, Met-Ed Easement, Storm Water Easement, Drainage Easement and
Conrail Easement are all recorded, each party shall execute, at the request of
either party, a memorandum of this Agreement that complies with all statutory or
other legal requirements, prepared by AES at its cost, in a recordable form. The
party recording the memorandum shall pay the recording costs.
[SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have executed this Agreement as of the day and year first
above written.
WITNESS: AES Ironwood, Inc.
/s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
------------------------- ----------------------------
its Xxxxxxx X. Xxxx
Vice President
ATTEST/WITNESS: Pennsy Supply, Inc.
/s/ Xxxx X. Page By: /s/ Xxxxx X. Xxxx Xx.
------------------------- ----------------------------
its Xxxxx X. Xxxx Xx.
Senior Vice President
-43-
EXHIBIT A
Survey Drawing of
Site Plan, located in
South Lebanon Township,
Lebanon County, Pennsylvania
[Drawing]
EXHIBIT X-0
Xxxxxx Xxxxx Plan
to Site
[Drawing]
EXHIBIT B
Commonwealth Land Title
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
THIS DEED
Tax Parcel No.30-58A-320
Made the 22nd day of June, in the year of our Lord one thousand
nine hundred ninety-eight (1998)
Between RESCO PRODUCTS, INC., a Pennsylvania corporation, party
of the first part ("Grantor")
AND
AES IRONWOOD, INC., a Delaware corporation, party of
the second part ("Grantee")
Witnesseth, that the said Grantor, for and in consideration of the sum of One
Hundred Thirty-Five Thousand and 00/100 ($135,000.00) Dollars lawful money of
the United States unto Grantor well and truly paid by the Grantee, the receipt
of which is hereby acknowledged, does hereby grant, bargain, sell, alien,
enfeoff, release, convey and confirm unto the said Grantee, Grantee's
successors and assigns,
ALL THAT CERTAIN piece or parcel of land, with the improvements thereon
erected, lying and situate in the Township of South Lebanon, Lebanon County,
Pennsylvania, as described in an ALTA/ASON Land Title Survey for Resco
Properties, Inc., prepared by Xxxxxxx, Xxxxxxx & Xxxxxx, Inc., dated June 18,
1998; more particularly bounded and described as follows, to wit:
BEGINNING at a spike in the center line of Prescott Road (33 feet wide), being
S. R. 2005, at the northern right-of-way line of the Consolidated Rail
Corporation; thence along said northern right-of-way line of the Consolidated
Rail Corporation the following four (4) courses and distances: (1) in a
generally westwardly direction S 61(degrees) 04(minutes) 35(degrees) W, a
distance of 239.67 feet to an iron pin (to be set); (2) in a generally
southwardly direction S 23(degrees) 05(minutes) 45(degrees) W, a distance of
130.00 feet to an iron pin (to be set); (3) in a generally westwardly direction
S 61(degrees) 03(minutes) 00(degrees) W, a distance of 358.06 feet to an iron
pin (to be set); and (4) in a generally westwardly direction by a curve to the
right, having a radius of 5,679.65 feet, and a chord bearing of S 62(degrees)
29(minutes) 14(degrees) W, an arc distance of 264.93 feet to a rebar (found) on
lands of Lebanon Rock, Inc.; thence along the last mentioned line of lands, the
following three (3) courses and distances: (1) in a generally northwardly
direction N 15(degrees) 00(minutes) 00(degrees) W, a distance of 80.00 feet to a
rebar (found); (2) in a generally northwardly direction N 19(degrees)
28(minutes) 15(degrees) E, a distance of 476.64 feet to a rebar (found); and (3)
in a generally eastwardly direction N 54(degrees) 39(minutes) 50(degrees) E, a
distance of 705.00 feet to a spike in the center line of Xxxxxxxx Xxxx, X.X.
0000; and thence along the center line of said Prescott Road in a generally
southwardly direction S 16(degrees) 04(minutes)
05(degrees)E, a distance of 410.00 feet to a spike (found), said point being the
point and the place of BEGINNING.
CONTAINING 7.955 acres (7.809 acres to the western right-of-way line of
Prescott Road).
BEING the same premises which Resco Holdings, Inc., a Pennsylvania corporation,
by deed dated December 15, 1993 recorded December 30, 1993 in Lebanon County
Deed Book 300, Page 556, granted and conveyed unto Resco Products, Inc., a
Pennsylvania corporation, Grantor herein.
UNDER AND SUBJECT to a certain right-of-way granted to Pennsy Supply Inc., its
successors and/or assigns, now containing a railroad siding and switch through
the western portion of said tract, which railroad siding is currently serving
the lands of Pennsy Supply, Inc. to the north of said tract, for the purpose of
material transportation by rail, together with the right to enter upon the same
for the purpose of maintaining, repairing, replacing and removing said siding
and switch equipment.
ALSO UNDER AND SUBJECT to the rights of Pennsy Supply, Inc., its successors
and/or assigns, in and to a certain concrete block building containing
electrical switching equipment and an existing right-of-way over, upon and
across an existing gravel driveway running north from said concrete block
building to the remaining lands of Pennsy Supply, Inc., which concrete block
building and right-of-way are along the eastern line of said tract, for
maintenance of an electrical service line or lines, together with the right and
privilege to enter upon said right-of-way and building to repair, replace,
remove and maintain said electrical service line and related switching
equipment.
ALSO UNDER AND SUBJECT to all covenants, conditions, easements, restrictions,
reservations and rights-of-way of record.
Together with all and singular the hereditaments and appurtenances thereunto
belonging or in anywise appertaining and the reversions and remainders, rents,
issues and profits thereof and all the estate, right, title, interest,
property, claim and demand whatsoever of the Grantor, in law, equity or
otherwise, of, in and to the same and every part thereof.
To Have and to Hold the above-described premises with the appurtenances unto
the Grantee, Grantee's successors and assigns, forever.
And the Grantor does hereby covenant and agree to and with the said Grantee,
that the Grantor, its successors and assigns, shall and will SPECIALLY WARRANT
AND FOREVER DEFEND the hereinabove described premises, with the hereditaments
and appurtenances, unto the Grantee, Grantee's successors and assigns, against
the Grantor and against every other person lawfully claiming or who
shall hereafter claim the same or any part thereof, by, from or under it, him,
her, them or any of them, shall and will, subject as aforesaid, SPECIALLY
WARRANT AND FOREVER DEFEND.
In Witness Whereof, the Grantor has hereunto set its hand and seal the day and
year first above written.
ATTEST: Resco Products, Inc.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
------------------------- ------------------------
Secretary President
- COMMONWEALTH OF PENNSYLVANIA
- DEPARTMENT OF REVENUE
-
Commonwealth of Pennsylvania )
County of Xxxxxxxxxx ) SS:
On this, the 5th day of August 1998, before me, a Notary Public, the
undersigned officer, personally appeared Xxxxxx Xxxxxxxxxx, who acknowledged
himself to be the President of Resco Products, Inc., a Pennsylvania
corporation, and that he, as President being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing the name of
the corporation by himself as President.
In Witness Whereof, I hereunto set my hand and official seal.
Xxxxx X. Xxxxxxxxxx
--------------------------
Notary Public
My Commission Expires: March 4, 2000
I Hereby Certify that the precise residence of the Grantee is AES Ironwood,
Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000
/s/ SR Xxxxxxxxxx
------------------------------
Realty Transfer Tax Paid on : 135,000.00
-------------------
State Tax 1,350.00
-----------------------: ---------------
Cornwall Leb. Sch. Dst. 675.00
-----------------------: ---------------
675.00
-----------------------: ---------------
South Lebanon Twp
-----------------------: ---------------
_______________________ Collector.
EXHIBIT 8.1(C)(2)
EXHIBIT 8.1 (C)(2)
Pennsy hereby directs AES to increase its dewatering
operations of the Pennsy West Tract by 20% per day until it
reaches a pumping level of 17,915,040 gallons per day, at which
time AES will pump such daily volume until further notice. Such
pumping, above and beyond the Base Flow (including the Creek Flow) shall be
conducted by AES, to the full extent of available pumps, between the hours of
10:00 p.m. and 6:00 a.m., daily. Pennsy and AES agree that the following table
illustrates the dewatering operation following the issuance of this notice:
GPM GPD
Day 1 6,000 8,640,000
Day 2 7,200 10,368,000
Day 3 8,640 12,441,600
Day 4 10,368 14,929,920
Day 5 12,441 17,915,040
EXHIBIT 8.2 -- Easement and Access
Agreements is filed as Exhibit 10.10
to this Amendment No. 1 to
Registration Statement No. 333-91391
on Form S-4.
