TAXES COVERING
THE PERIOD AFTER THE CLOSING DATE) AND FUEL INVENTORY (AT THE HIGHER OF COST OR
MARKET) LESS TRADE ACCOUNTS PAYABLE AND ACCRUALS (EXCLUDING TRADE ACCOUNTS AND
ACCRUALS DUE TO ITS AFFILIATES).
ACCOUNTS RECEIVABLE SHALL ALSO EXCLUDE: TAX
REFUNDS THAT ARE SUBJECT TO THE TERMS OF SECTION 2.03(B) BELOW; AND AMOUNTS
RELATED TO INSURANCE AND OTHER CLAIMS THAT ARE SUBJECT TO THE TERMS OF SECTION
2.03(E) BELOW.
TRADE ACCOUNTS PAYABLE AND ACCRUALS SHALL ALSO EXCLUDE: THE
REMEDIATION WORK AT THE SWINGING BRIDGE FACILITY THAT IS SUBJECT TO THE TERMS OF
SECTION 2.03(D) BELOW; AMOUNTS RECORDED FOR REMEDIATION AND MONITORING WORK AT
THE HILLBURN FACILITY; AND ASSET RETIREMENT
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OBLIGATIONS FOR ALL OF THE COMPANY'S GENERATING FACILITIES.
THE MARKET VALUE OF
FUEL INVENTORY SHALL BE DETERMINED BY REFERENCE TO THE PRICE LISTED IN PLATTS US
MARKETSCAN, ATLANTIC COAST, LOW SULFUR JET, BARGE QUOTE, PUBLISHED ON THE
CLOSING DATE, PLUS ALL APPLICABLE TAXES. IF NO PRICE IS PUBLISHED ON THE CLOSING
DATE, THEN THE PRICE SHALL BE THE AVERAGE OF (I) THE PRICE FOR THE FIRST DAY FOR
WHICH A PRICE (AS DETERMINED USING THE PRECEDING METHODOLOGY) IS PUBLISHED THAT
PRECEDES THE CLOSING DATE AND (II) THE PRICE FOR THE FIRST DAY FOR WHICH A PRICE
(AS DETERMINED USING THE PRECEDING METHODOLOGY) IS PUBLISHED THAT NEXT FOLLOWS
THE CLOSING DATE. IF PLATTS US MARKETSCAN, OR THE RELEVANT LOCATION OR FUEL TYPE
CEASES TO BE PUBLISHED, THE PARTIES SHALL AGREE ON THE APPROPRIATE INDEX TO BE
USED.
(II)
IN THE EVENT OF A DISPUTE WITH RESPECT TO SELLER'S CALCULATION OF
THE AMOUNT OF NET WORKING CAPITAL AND ANY ADJUSTMENT TO BE PAID BY PURCHASER OR
SELLER PURSUANT HERETO, PURCHASER AND SELLER SHALL ATTEMPT TO RECONCILE THEIR
DIFFERENCES.
IF PURCHASER AND SELLER ARE UNABLE TO DO SO WITHIN SIXTY (60) DAYS
OF RECEIPT BY PURCHASER OF SELLER'S WRITTEN NOTICE OF THE AMOUNT OF ITS
CALCULATION, PURCHASER AND SELLER SHALL SUBMIT THE DISPUTED ITEMS FOR RESOLUTION
TO DELOITTE & TOUCHE, LLP (ATLANTA OFFICE) (THE "REVIEW FIRM") WHICH, WITHIN
NINETY (90) DAYS FROM SUCH SUBMISSION, SHALL DETERMINE AND REPORT TO THE PARTIES
UPON SUCH DISPUTED ITEMS, AND SUCH REPORT SHALL BE FINAL, BINDING AND CONCLUSIVE
ON THE PARTIES HERETO.
IN ACTING PURSUANT TO THIS SECTION 2.03(A), THE REVIEW
FIRM SHALL HAVE THE RIGHTS, PRIVILEGES AND IMMUNITIES OF AN ARBITRATOR, AND ITS
FEES SHALL BE PAID ONE HALF BY PURCHASER AND ONE HALF BY SELLER.
(B)
TAX REFUNDS.
ALL REFUNDS OF TAXES RELATING TO THE COMPANY WITH
RESPECT TO TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE WILL BE FOR THE
ACCOUNT OF SELLER.
TO THE EXTENT THE COMPANY RECEIVES ANY SUCH REFUND AFTER THE
CLOSING DATE, PURCHASER SHALL PAY THE AMOUNT OF SUCH REFUND TO SELLER WITHIN
FIVE (5) BUSINESS DAYS OF RECEIPT.
(C)
PRE-APPROVED CAPITAL EXPENDITURES AND NECESSARY CAPITAL
EXPENDITURES.
FROM THE EFFECTIVE DATE THROUGH THE PLAN EFFECTIVE DATE, THE
COMPANY MAY (WITHOUT PURCHASER'S CONSENT) MAKE:
(I) THE CAPITAL EXPENDITURES
DESCRIBED ON SCHEDULE 2.03(C) (THE "PRE-APPROVED CAPITAL EXPENDITURES"); AND
(II) NECESSARY CAPITAL