|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.
between Purchaser and Seller, be borne by Seller. If during the Interim Period, the property or assets of the ProjectCos, including the Projects, are damaged by fire or other casualty (each such event, an “Event of Loss”), or are taken by a Governmental Authority by exercise of the power of eminent domain or condemnation (each, a “Taking”), then the following provisions of this Section 7.06 shall apply:
(a) Following the occurrence of (i) any one or more Events of Loss, if the aggregate costs to restore, repair or replace the property or assets of the ProjectCos subject to such Event of Loss to a condition reasonably comparable to its or their condition prior to such Event of Loss, plus the amount of any lost profits reasonably expected to accrue after Closing as a result of such Event of Loss (such amount pursuant to this clause (i) to be determined by an independent third party appraiser mutually selected by the Parties (collectively, “Restoration Costs”)) or (ii) any one or more Takings, if the value of the property subject to such Taking plus the amount of any lost profits reasonably expected to accrue after Closing as a result of such Taking, less any condemnation award received by Purchaser (provided, that any such condemnation award is made available to Purchaser) (such amount pursuant to this clause (ii) to be determined by an independent third party appraiser mutually selected by the Parties (collectively, the “Condemnation Value”)), is, in the aggregate, less than or equal to five million dollars ($5,000,000) in the case of each of clauses (i) and (ii), net of and after giving effect to (A) any insurance or condemnation award proceeds reasonably expected to be available to the applicable ProjectCos of Seller for such event (net of any out-of-pocket costs or expenses reasonably expected to collect such proceeds) and (B) any reasonable out-of-pocket costs and expenses expended by the applicable Project Company or Seller prior to Closing to restore damage caused by such casualty event, there shall be no effect on the transactions contemplated hereby.
(b) Upon the occurrence of any one or more Events of Loss or Takings involving aggregate Restoration Costs or Condemnation Value in excess of five million dollars ($5,000,000) (a “Major Loss”), Seller shall have, in the case of a Major Loss relating solely to one or more Events of Loss, the option, exercised by written notice to Purchaser, to restore, repair or replace the damaged assets or properties prior to Closing to a condition comparable in all material respects to their condition prior to such Event of Loss or Taking, as the case may be. If Seller so elects to restore, repair or replace the assets or properties relating to a Major Loss, which election shall be made by notice to Purchaser prior to the Closing Date and as soon as practicable following the occurrence of the Major Loss (but in all events within ten (10) Business Days after the occurrence of such Major Loss), Seller will complete or cause to be completed the repair, replacement or restoration of the damaged assets or property prior to the Closing and the Closing Date shall be postponed for the amount of time reasonably necessary to complete the restoration, repair or replacement of such property or assets as reasonably agreed between Purchaser and Seller (including, if necessary, the extension of the date contemplated by Section 14.01(b) (but for no more than thirty (30) days) to allow for the restoration, repair or replacement of such assets or properties). If Seller elects not to cause the restoration, repair or replacement of the property or assets affected by a Major Loss (or fails to make its election within the foregoing time period), or such Major Loss is the result in whole or in part of one or more Takings or is otherwise not reasonably capable of being restored, repaired or replaced prior to the date contemplated by Section 14.01(b) (subject to the foregoing extension, if applicable), the provisions of Section 7.06(c) will apply.
(c) In the event that Seller elects not to cause the restoration, repair or replacement of a Major Loss, or in the event that Seller, having elected to cause repair, replacement or restoration of the Major Loss, fails to cause its completion within the period of time agreed upon by the Parties pursuant to Section 7.06(b) (subject to extension for up to ninety (90) days for causes beyond Seller’s control), or in the event that a Major Loss is the result in whole or in part of one or more Takings or is otherwise not capable of being restored, repaired or replaced, then the Parties shall adjust the Base Purchase Price downward by the aggregate Restoration Cost and Condemnation Value, and proceed to Closing in accordance with this Agreement. To assist Purchaser and any independent third party appraiser in its evaluation of any and all Events of Loss, Seller shall provide Purchaser and such independent third party appraiser such access to the properties and assets and such information as Purchaser and such independent third party appraiser may reasonably request