|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.
representatives which Seller reasonably believes it or the Company Entities are prohibited from providing to Purchaser, its Affiliates or their respective representatives by reason of attorney-client privilege.
(b) Purchaser, its Affiliates and their respective representatives shall hold in confidence all confidential information obtained from Seller, the Company Entities, the NYLD Entities or their respective Affiliates, officers, agents, representatives or employees, whether or not relating to the Business of the Company and the Business of NYLD, in accordance with the provisions of the Confidentiality Agreement which, notwithstanding anything contained therein, shall remain in full force and effect following the execution of this Agreement and shall survive any termination of this Agreement in accordance with its terms; provided, however, that Sections 5, 6 and 12 of the Confidentiality Agreement will be inapplicable with respect to any of the transactions contemplated by this Agreement. After the Closing Date, Seller, its Affiliates and their respective representatives shall hold in confidence all information relating to the Business of the Company and the Business of NYLD, in accordance with the provisions of the Confidentiality Agreement to the same extent that would be required if Seller were a “Receiving Party” pursuant to the Confidentiality Agreement. Notwithstanding anything contained in this Agreement or the Confidentiality Agreement, the obligations of Seller set forth in the immediately preceding sentence shall remain in full force and effect following the execution of this Agreement and shall survive any termination of this Agreement.
(c) Subject to Section 7.02(b), prior to the Closing Date, Purchaser shall be entitled to receive and Seller shall be required to deliver, that information set forth on Schedule 7.02(c) in a form to be agreed upon by the Parties.
Section 7.03 Exhibits and Schedules; Notification of Certain Matters.
(a) All exhibits and schedules and the Disclosure Schedules attached hereto are hereby incorporated herein by reference and made a part hereof.
(b) Neither the specification of any dollar amount in any representation nor the mere inclusion of any item in a schedule or in the Disclosure Schedules as an exception to a representation or warranty shall be deemed an admission by a Party that such item represents a material fact, event or circumstance or that such item is reasonably likely to result in a Material Adverse Effect.
(c) Seller shall have the right (but not the obligation) to deliver to Purchaser, at least five (5) Business Days prior to the Closing Date, a supplement to the Seller Disclosure Schedules (the “Closing Date Schedule Supplement”) to disclose any matter arising or discovered after the date hereof, that, if existing at, or arising or discovered prior to the date hereof, would have been required to be set forth in the Seller Disclosure Schedules for the representations and warranties of Seller set forth herein to be true and correct as of the date hereof. For all purposes hereunder, including for purposes of Section 13.01 and for purposes of determining whether the conditions to closing set forth in Section 9.01 have been satisfied, the Seller Disclosure Schedules shall be deemed to include only that information contained in the Seller Disclosure Schedules on the Effective Date and shall be deemed to exclude any Closing Date Schedule Supplement; provided, that if Seller notifies Purchaser in writing that any item set forth in the Closing Date Schedule Supplement gives Purchaser the right to terminate this Agreement on account of a failure of the conditions to Closing set forth in Section 9.01 to be satisfied on account of the item in the Closing Date Schedule Supplement, but Purchaser does not terminate this Agreement within twenty (20) Business Days of its receipt of such notice, then Purchaser shall be deemed to have waived its right to terminate this Agreement with respect to such item and its right to not consummate the transactions contemplated hereby with respect to such item, in each case, after giving effect to such item under any of the conditions set forth in Section 9.01, but shall not be deemed to have waived its right to indemnification under Section 13.01 with respect to such item. Notwithstanding anything in this Section 7.03 to the contrary, any information contained in the Closing Date Schedule Supplement that is required exclusively to accommodate Purchaser’s requirement that the Company be reorganized as a Delaware limited partnership prior to the Closing shall be deemed to have been