FOLLOWING CLOSING AND, EXCEPT AS PROVIDED IN SECTION 2.03(E) BELOW, SELLER SHALL
HAVE NO LIABILITY OR OBLIGATION TO PURCHASER OR COMPANY FOR THE COSTS OF SUCH
COMPLETION.
(E)
REMEDIATION SHORTFALL.
IF THE COMPANY IS NOT REASONABLY EXPECTED
TO COMPLETE THE SWINGING BRIDGE BASIC REMEDIATION ON OR BEFORE THE CLOSING DATE,
THEN SELLER SHALL NOTIFY PURCHASER, WITHIN FIFTEEN (15) DAYS PRIOR TO THE
CLOSING, OF SELLER'S OPTION TO:
(I)
REDUCE THE PURCHASE PRICE FOR SELLER'S GOOD FAITH WRITTEN
ESTIMATE OF AMOUNTS REQUIRED TO BE EXPENDED TO COMPLETE THE APPLICABLE
REMEDIATION, OR
13
(II)
CAUSE THE COMPANY TO CONTRACT WITH A THIRD PARTY REASONABLY
ACCEPTABLE TO PURCHASER TO COMPLETE THE APPLICABLE REMEDIATION, IN WHICH CASE
THE PURCHASE PRICE SHALL BE REDUCED BY THE AMOUNT PAYABLE TO SUCH THIRD PARTY
UNDER SUCH CONTRACT;
PROVIDED, HOWEVER, THAT IN THE CASE OF EITHER OPTION SPECIFIED IN (I) OR (II)
AFOREMENTIONED, SELLER'S LIABILITY SHALL BE LIMITED TO AN AMOUNT WHICH, WHEN
AGGREGATED WITH SELLER'S LIABILITY UNDER SECTION 2.03(D) HEREOF AND SECTION
11.03(B)(III) HEREOF, DOES NOT EXCEED THE PURCHASE PRICE.
(F)
INSURANCE PROCEEDS AND AFFIRMATIVE CLAIMS AGAINST THIRD PARTIES.
PRIOR TO THE CLOSING DATE, THE COMPANY WILL
(I) ASSIGN TO SELLER (OR SUCH
AFFILIATE OF SELLER AS SELLER MAY DIRECT PURSUANT TO THE PLAN) ALL OF THE
COMPANY'S PENDING INSURANCE CLAIMS FILED WITH RESPECT TO AND RELATED TO ITS
REMEDIATION EXPENDITURES AT BOTH THE SWINGING BRIDGE FACILITY AND THE HILLBURN
FACILITY, WHICH MAY INCLUDE, BUT SHALL NOT BE LIMITED TO, CLAIMS IN RESPECT OF
PROPERTY, BUSINESS INTERRUPTION, AND ENVIRONMENTAL LOSSES.
TO THE EXTENT AN
INSURANCE CARRIER PAYS AMOUNTS RELATED TO SUCH CLAIMS TO THE COMPANY AFTER
CLOSING, THE COMPANY SHALL HOLD SUCH AMOUNTS IN TRUST FOR SELLER (OR SELLER'S
AFFILIATE, AS THE CASE MAY BE) AND PURCHASER SHALL CAUSE THE COMPANY TO PAY
SELLER OR ITS AFFILIATE SUCH AMOUNTS WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT,
(II) ASSIGN TO SELLER (OR SUCH AFFILIATE OF SELLER AS SELLER MAY DIRECT PURSUANT
TO THE PLAN)
THE COMPANY'S AFFIRMATIVE CLAIMS AGAINST ANY THIRD PARTIES
(INCLUDING, BUT NOT LIMITED TO, CLAIMS ORIGINALLY FILED IN THE BANKRUPTCY CASE
AGAINST ORANGE AND ROCKLAND UTILITIES INC. AND CONSOLIDATED EDISON, INC. AND/OR
ANY OF THEIR RESPECTIVE AFFILIATES) FOR ACTIONS OR INACTIONS ARISING PRIOR TO
THE CLOSING DATE, AND (III) ASSIGN TO SELLER (OR SUCH AFFILIATE OF SELLER AS
SELLER MAY DIRECT PURSUANT TO THE PLAN) ALL INTERCOMPANY CLAIMS.
IF REQUESTED
BY SELLER, PURCHASER SHALL CAUSE RE-ORGANIZED MIRANT NY-GEN TO COOPERATE WITH
SELLER (OR SELLER'S DESIGNATED AFFILIATE) IN THE PROSECUTION OF SUCH INSURANCE
AND AFFIRMATIVE CLAIMS, INCLUDING MAKING PERSONNEL, RECORDS, AND ACCESS TO THE
ASSETS REASONABLY AVAILABLE AS NEEDED BY SELLER; PROVIDED, HOWEVER, THAT THE
COSTS OF PROSECUTING ANY SUCH CLAIMS SHALL BE BORNE BY, AND BE FOR THE ACCOUNT
OF, SELLER.
IT IS EXPRESSLY UNDERSTOOD THAT NOTHING HEREIN SHALL AFFECT ANY
CLAIMS THAT THE COMPANY MAY OR COULD HAVE ASSERTED AGAINST ANY AFFILIATE THAT IS
PARTY TO THE O&R SETTLEMENT AGREEMENT FOR SETOFF, CONTRIBUTION, REIMBURSEMENT OR
INDEMNITY UNDER THE O&R SETTLEMENT AGREEMENT, OR ANY