|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.
(viii) Each Company Entity that is a partnership for U.S. federal income tax purposes has in effect, or will have in effect, an election under Section 754 of the Code (and any equivalent election for applicable state and local income Tax purposes) for the taxable year that includes the Closing Date. There have been no technical terminations under Section 708 of the Code of any Company Entity that is treated as a partnership for Tax purposes.
(ix) The Company Entities have collected all sales and use Taxes required to be collected, and have remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Authorities, or have been furnished properly completed exemption certificates, and have maintained all such records and supporting documents in the manner required by all applicable sales and use Tax statutes and regulations.
(x) No Company Entity will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Tax period (or portion thereof) beginning after the Closing Date as a result of any (A) written agreement with a Governmental Authority with regard to any Tax liability of the Company Entities, (B) change in or incorrect method of accounting, (C) installment sale or open transaction disposition made prior to the Closing, (D) intercompany transaction or excess loss account under Section 1502 of the Code (or similar provision of state, local or non-U.S. law), (E) prepaid amount received or deferred revenue accrued on or prior to the Closing Date, or (F) any election under Section 108(i) of the Code.
(xi) NYLD has not experienced an “ownership change” within the meaning of Section 382 of the Code and does not have a net operating loss or other Tax attribute that is presently, or that will as a result of the transactions contemplated by this Agreement, subject to limitation under Section 382, 383 or 384 of the Code.
(b) For purposes of this Section 4.03, the Company Entities shall include the NYLD Entities.
Section 4.04 The Material Company Contracts.
(a) Schedule 4.04(a) contains a true and complete list of all the Material Company Contracts and all amendments, modifications and supplements thereto (other than those Material Company Contracts that Seller is permitted to exclude from Schedule 4.04(a) under the definition of Material Company Contracts). Each Material Company Contract constitutes the legal, valid, binding and enforceable obligation of the Company Entity party thereto and, to the Knowledge of Seller, the other parties thereto, and is enforceable in accordance with its terms. Each Material Company Contract is in full force and effect in all material respects.
(b) No Company Entity, nor to the Knowledge of Seller, any of the other parties thereto is in material breach, violation or default, and no event, condition or omission exists or has occurred which with notice or lapse of time or both would constitute any such material breach, violation or default, or permit termination, modification, or acceleration by such other parties, under such Material Company Contracts, except (i) that, with respect to the Material Company Contracts for which Consents are set forth in Schedule 3.03, the applicable Consents set forth in Schedule 3.03 may be required in order to avoid a default, violation or breach thereof under any Material Company Contract, and (ii) as would not reasonably be expected to individually or in the aggregate, result in material Losses to Purchaser or the Company Entities, or otherwise materially impair the conduct of the Business of the Company.
(c) Neither Seller nor the Company has received any notice that any Material Company Contract is not in full force or effect or that any party to any of the Material Company Contracts intends to terminate or fail to renew at the end of its term, materially increase or decrease any rates, costs or fees charged to or payable by or to the Company or materially reduce the goods and services provided to or by the Company