|NRG ENERGY, INC. filed this Form 10-K on 03/01/2018|
NRG ENERGY, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS DOCUMENT, WHICH ARE INDICATED BY ASTERISKS, BE ACCORDED CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934.
(a) If Purchaser or Seller timely objects to the other Party’s determination of any matter that may be resolved under this Section 2.04 (such matter, the “Disputed Matter”), then Purchaser and Seller shall negotiate in good faith and attempt to resolve the particular items and values that are identified in the applicable written notice of objection over a five (5) Business Day period commencing on delivery of such written notice of objection. Should such negotiations not result in an agreement as to the Disputed Matter within such five (5) Business Day period (or such longer period as Purchaser and Seller may mutually agree), then either Party may submit such disputed items and values to the Neutral Auditor. Each Party agrees to promptly execute a reasonable engagement letter, if requested to do so by the Neutral Auditor. Purchaser and Seller, and their respective Representatives, shall cooperate fully with the Neutral Auditor. The Neutral Auditor, acting as an expert and not an arbitrator, shall resolve such disputed items and determine the values to be ascribed thereto, and using those values (together with other items not in dispute) determine the Disputed Matter (prepared on the same basis used to prepare the Disputed Matter). The Parties hereby agree that the Neutral Auditor shall only decide the specific disputed items, the values ascribed thereto and using those values determine the Disputed Matter, and the Neutral Auditor’s decision with respect to such disputed items and values must be within the range of values assigned to each such item in the applicable Disputed Matter and the notice of objection, respectively. All fees and expenses relating to the work, if any, to be performed by the Neutral Auditor will be borne equally by Purchaser and Seller. The Neutral Auditor shall be directed to resolve the disputed items and amounts and deliver to Purchaser and Seller a written determination of the Disputed Matter (such determination to be made consistent with this Section 2.04(a), including a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Neutral Auditor by Purchaser and Seller) within ten (10) days after being retained, which determination will be final, binding and conclusive on the Parties and their respective Affiliates and representatives, successors and assigns. Notwithstanding anything herein to the contrary, the dispute resolution mechanism contained in this Section 2.04(a) shall be the exclusive mechanism for resolving disputes, if any, regarding the Disputed Matters, if any, and neither Seller nor Purchaser shall be entitled to indemnification pursuant to Article 13 for Losses resulting or arising from the amounts of the Disputed Matters or the determination thereof.
(b) If any disputed items have been submitted to the Neutral Auditor pursuant to Section 2.04(a) and, prior to the resolution of such disputed items by the Neutral Auditor as provided in Section 2.04(a), all of the conditions set forth in Article 9 and Article 10 have been satisfied, or irrevocably waived, other than those conditions that require deliveries or are tested at the time of Closing, which conditions would have been satisfied if the Closing had occurred, the Closing shall take place; provided, that within five (5) Business Days after the delivery to Purchaser and Seller by the Neutral Auditor of its written determination of the Disputed Matters, if such determination shows that Purchaser owes an amount to Seller, Purchaser shall pay to Seller such amount or, if such determination shows that Seller owes an amount to Purchaser, Seller shall pay to Purchaser such amount, in each case by wire transfer of immediately available funds to the applicable payee’s account as such payee shall specify to the other Party in writing.
Section 2.05 Zephyr Business Plan Adjustment Amount. If, during the Interim Period, Seller deposits cash into the Lock Box Account in order to permit the Company Entities to meet those obligations set forth in the Zephyr 2018 Business Plan (the amount of such cash, the “Zephyr Business Plan Adjustment Amount”), then at the Closing, as more specifically set forth in Section 2.02 and Section 2.03(b)(i), the Base Purchase Price shall be increased by such Zephyr Business Plan Adjustment Amount. For the avoidance of doubt, the Zephyr Business Plan Adjustment Amount shall not include any amounts that have been (or were required to be) deposited into the Lock Box Account as of the Effective Date and shall not include any deposits that are made for reasons other than to permit the Company Entities to meet their obligations set forth in the Zephyr 2018 Business Plan.
Section 2.06 Patriot Adjustment Amount.