|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.
(g) Purchaser shall be permitted to perform an accounting of the Patriot Adjustment Amount and Patriot True-Up Amount for the Interim Period in order to confirm the Patriot Adjustment Amount and Patriot True-Up Amount. Seller shall be permitted to perform an accounting of the Patriot Adjustment Amount and Patriot True-Up Amount for the period from the Closing Date until the closing of the Patriot Sale Transaction in order to confirm the Patriot Adjustment Amount and Patriot True-Up Amount. In conjunction with such accounting (but no later than sixty (60) days after the Closing Date), Purchaser or Seller may deliver a notice to the other Party of any differences in such Party’s determination of the Patriot Adjustment Amount or Patriot True-Up Amount as a result of such accounting (together with supporting documentation), and, if the other Party does not object to such notice within twenty (20) Business Days of receipt, such other Party shall pay the amount of such differences to the notifying Party within such twenty (20) Business Day period. If such other Party objects to the notifying Party’s notice of differences within such twenty (20) Business Day period, then the Parties shall resolve such dispute utilizing the procedures (including the use of a Neutral Auditor) and time periods specified in Section 2.04. Any payment by a Party pursuant to this section shall constitute a reduction in the Final Purchase Price.
Section 2.07 Withholding. Purchaser and its Affiliates shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable Tax Law. To the extent that such amounts are withheld and paid over to the appropriate Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such deduction or withholding was made.
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as otherwise disclosed to Purchaser in the Seller Disclosure Schedules, Seller hereby represents and warrants to Purchaser as of the Effective Date and as of the Closing Date as follows:
Section 3.01 Existence. Seller is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. Seller has full power and authority to execute and deliver this Agreement and any other agreements to be executed and delivered by Seller hereunder, and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, including to own, hold, sell and transfer the Acquired Interests. Seller is duly qualified, licensed or admitted to do business and in good standing in each other jurisdiction in which the assets owned, used or leased by it, or the nature of the business conducted by it, and in which the actions required to be performed by it hereunder make such qualification, licensing or admission necessary, except for those jurisdictions where the failure to be so qualified, licensed or admitted would not, in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 3.02 Authority. All actions or proceedings necessary to authorize the execution and delivery by Seller of this Agreement and the performance by Seller, the Company Entities or the NYLD Entities of their obligations hereunder have been duly and validly taken. This Agreement has been duly and validly executed and delivered by Seller and constitutes the legal, valid and binding obligations of Seller enforceable against Seller in accordance with its terms.
Section 3.03 No Consent. Except as set forth on Schedule 3.03 (the “Seller Consents”), the execution, delivery and performance by Seller of this Agreement does not require, and the completion of the Pre-Effective Date Reorganization did not require, Seller, any Company Entity, or any NYLD Entity to make or obtain any Consent to or from any Person as a result of or under any terms, conditions or provisions of any Contract or Permit by which it or its assets are bound, that, individually or in the aggregate, would reasonably be expected to (a) materially adversely affect the ability of Seller to consummate the transactions contemplated by this Agreement or to perform its obligations hereunder or (b) result in material Losses to