|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.
(f) None of the Company Entities conducts (i) any business other than the development, ownership, operation and management of the Projects or (ii) any operations other than those incidental to the ownership, operation, and management of the Projects.
Section 4.02 No Undisclosed Liabilities. The Company Entities have no material Liabilities that would be required to be reflected or reserved against in a balance sheet of the Company prepared in accordance with GAAP, consistently applied, except for (a) Liabilities set forth, reflected in, reserved against or disclosed in the Financial Statements, (b) Liabilities incurred in the ordinary course of business since the Balance Sheet Date, (c) Liabilities under any Contract (other than as a result of a breach thereof by such Company Entity), and (d) Liabilities incurred in connection with the transactions contemplated hereby.
Section 4.03 Taxes.
(a) Except as set forth on Schedule 4.03:
(i) Each Company Entity has (A) duly and timely filed, or caused to be filed, all Tax Returns that it is required to file and (B) duly and timely paid or caused to be paid all Taxes that are required to be paid by it (whether or not shown to be due and payable on such Tax Returns). All such Tax Returns are correct and complete in all material respects. Each Company Entity is properly entitled to any Tax credit or depreciation allowance reflected on a Tax Return of such Company Entity. There are no Liens for Taxes on any of the assets of any Company Entity other than Permitted Liens. Each Company Entity has duly and timely withheld all Taxes that it is obligated to withhold from amounts paying to any employee, independent contractor, shareholder, creditor, or other third party.
(ii) There are no outstanding agreements or waivers extending the statutory period of limitations applicable to the assessment of any Tax against the Company Entities (other than automatic extensions arising from an extension of the due date for filing an income Tax Return).
(iii) There are no pending (or, the Knowledge of Seller, threatened in writing) audits, investigations, examinations or other proceedings in respect of any Tax imposed on any Company Entity. No deficiency with respect to any Tax has been proposed, asserted or assessed against any Company Entity.
(iv) No Company Entity has participated in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4
(v) No Company Entity (A) is party to, is bound by or has any obligation under any Tax sharing, indemnification or similar agreement (except for any Project Company (as defined in the Consent and Indemnity Agreement) that has agreed to provide a tax indemnity to an investor in such Project Company where such indemnity is based on solar investment tax credits, production tax credits, or other tax credits or tax benefits of the Project Company (a “Tax Equity Investor Indemnity”)), (B) has any liability pursuant to any Tax Equity Investor Indemnity, (C) has ever been a member of an affiliated, combined, unitary or similar group for purposes of filing Tax Returns or paying Taxes (other than the group of which NRG is the common parent), or (D) has any liability under Treasury Regulation Section 1.1502-6 (or any comparable or similar provision of state, local or non-U.S. law), as a transferee or successor or otherwise.
(vi) No written claim has been made by a Governmental Authority in a jurisdiction in which a Company Entity does not file Tax Returns that such Company Entity is or may be required to file Tax Returns in, or subject to taxation by, that jurisdiction, which claim has not been resolved.
(vii) Each Company Entity has been treated as a disregarded entity or partnership for U.S. federal income tax purposes at all times since its formation, and no election has ever been filed to treat any Company Entity as an association taxable as a corporation for U.S. federal income Tax purposes.