|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.
(a) Seller and the Company Entities have provided Purchaser with such access to the facilities, books, records and personnel of the Company Entities as Purchaser has deemed necessary and appropriate in order for Purchaser to investigate to its satisfaction the Business of the Company and assets of the Company Entities sufficiently to make an informed investment decision to purchase the Acquired Interests and to enter into this Agreement. Purchaser (either alone or together with its Representatives) has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its purchase of the Acquired Interests and is capable of bearing the economic risks of such purchase. Purchaser’s acceptance of the Acquired Interests on the Closing Date shall be based upon its own investigation, examination and determination with respect thereto as to all matters and without reliance upon any express or implied representations or warranties of any nature made by or on behalf of or imputed to Seller, except as expressly set forth in this Agreement. As of the Effective Date, Purchaser does not know of the existence or non-existence or occurrence or non-occurrence of any event, condition or circumstance the occurrence or non-occurrence of which does or would cause any representation or warranty of Seller contained in this Agreement to be untrue or inaccurate in any material respect.
(b) Purchaser has relied solely on itself and its own Representatives for its evaluation of its investment decision to purchase the Acquired Interests and to enter into this Agreement and not on the advice of Seller or its Representatives. Purchaser acknowledges that any financial projections that may have been provided to it are based on assumptions of future operating results based on assumptions about certain events (many of which are beyond the control of Seller). It understands that no assurances or representations can be given that the actual results of the operations of any Company Entity will conform to the projected results for any period. Except with respect to any representation or warranty expressly set forth in this Agreement, Purchaser specifically acknowledges that no representation or warranty has been made, and that Purchaser has not relied on any representation or warranty, as to the accuracy of any projections, estimates or budgets, future revenues, future results from operations, future cash flows, the future condition of any Project or any assets of any Company Entity, the future financial condition of such Company Entity, or any other information or documents made available to Purchaser, its Affiliates or its or their respective Representatives.
Section 6.12 Financial Capacity. Purchaser has delivered to Seller true and complete fully-executed copies of the equity commitment letter, dated as of the Effective Date (the “Equity Commitment Letter”), delivered by Global Infrastructure Partners III-A/B, L.P. to Purchaser and, including all exhibits, schedules, annexes and amendments to thereto in effect as of the Effective Date, pursuant to which and subject to the terms and conditions thereof each of the parties thereto (other than Purchaser), has agreed to provide the equity financing set forth therein (the “Equity Financing”). The Equity Commitment Letter has not been amended, restated or otherwise modified or waived prior to the Effective Date and the commitments contained in the Equity Commitment Letter have not been withdrawn, modified or rescinded in any respect prior to the Effective Date. As of the Effective Date, the Equity Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of Purchaser and, to the Knowledge of Purchaser, the other parties thereto. There are no conditions precedent to the funding of the full amount of the Equity Financing, other than as expressly set forth in the Equity Commitment Letter. There are no other agreements, side letters or arrangements that would permit the parties to the Equity Commitment Letter to reduce the amount of the Equity Financing or that would otherwise materially affect the availability of the Equity Financing. The Equity Commitment Letter provides Purchaser with binding financial commitments that, when funded at Closing (assuming the satisfaction of the conditions set forth in Article 9), will provide Purchaser with funds sufficient to pay an amount equal to the Final Purchase Price (as adjusted) and the fees and expenses of Purchaser required to be paid at the Closing and to consummate the transactions contemplated by this Agreement. As of the Effective Date, no event has occurred that would constitute a breach or default (or an event that with notice or lapse of time or both would constitute a default), in each case, on the part of Purchaser under the Equity Commitment Letter or, to the Knowledge of Purchaser, any other party to the Equity Commitment Letter.