|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.
in connection therewith. All fees and expenses of the independent third party appraiser shall be split equally by Seller and Purchaser, and Seller and Purchaser agree to promptly execute a reasonable engagement letter if requested to do so by such appraiser. The Parties shall endeavor to agree on such appraiser and require the delivery of its estimates as soon as reasonably practicable after any Event of Loss.
(d) If the Base Purchase Price is reduced by any amounts with respect to any reasonably expected insurance or condemnation award proceeds, then Seller shall (and shall cause its Affiliates to) use their reasonable best efforts to assist Purchaser and its Affiliates in the recovery of such proceeds, including the assignment of any claims and prompt remittance of any payments received by Seller or its Affiliates (whether before or after Closing).
Section 7.07 Lock Box Account. From and after the Effective Date, until and through the Closing Date, Seller has caused and will cause each Company Entity owned directly by the Company and each of NYLD and NYLD LLC, to deposit any distributions of cash or cash equivalents earned in respect of the Equity Interests of such Company Entity, NYLD or NYLD LLC owned directly by the Company into a separate bank account held by the Company (the “Lock Box Account”). In addition, from and after the Lock Box Date, until and through the Closing Date (or such earlier date that the NYLD Securities are contributed by Seller to the Company whereupon they will be subject to the first sentence of this Section 7.07), Seller has deposited and will deposit into the Lock Box Account any distributions of cash or cash equivalents earned in respect of the NYLD Securities. No payments, remittances or other disbursements may be made by the Company from the Lock Box Account except to the extent that such payments are contemplated or permitted by this Agreement to be made by the Company to NYLD, NYLD LLC or to any Subsidiary. Seller shall provide to Purchaser monthly statements reflecting all amounts transferred to and from the Lock Box Account. Purchaser shall be permitted to perform an accounting of all amounts transferred to and from Lock Box Account through the Closing Date, including with respect to all Permitted Intercompany Transfers, and otherwise that Seller have complied with their obligations under this Agreement with respect to the operation of the business by the Company Entities through the Closing Date in order to confirm that the correct amount is on deposit in the Lock Box Account on the Closing Date. In conjunction with such accounting (but no later than sixty (60) days after the Closing Date), Purchaser may deliver a notice to Seller of a shortfall in the amount on deposit in the Lock Box Account on the Closing Date as a result of such accounting (together with supporting documentation), and, if Seller does not object to such notice within twenty (20) Business Days of receipt, Seller shall pay the amount of such shortfall to Purchaser within such twenty (20) Business Day period. If Seller object to Purchaser’s notice of shortfall 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 Seller to Purchaser pursuant to this section shall constitute a reduction in the Final Purchase Price.
Section 7.08 Fulfillment of Conditions, Obligations. Seller (a) shall take all commercially reasonable steps necessary or desirable, and proceed diligently and in good faith to satisfy each condition to the obligations of Purchaser contained in this Agreement and each condition to the obligations of NYLD in the Consent and Indemnity Agreement and (b) shall not, and shall not permit the Company, any Subsidiary or any of its other Affiliates (subject to its right to Control such Affiliate) to, take or fail to take any action that would reasonably be expected to result in the non-fulfillment of any such condition. Seller shall not request NYLD to take nor consent to NYLD taking any action that would result in a breach of, or NYLD’s failure to comply with, the Consent and Indemnity Agreement, and Seller will use commercially reasonable efforts to cause NYLD to comply with the Consent and Indemnity Agreement.
Section 7.09 Further Assurances
. During the Interim Period, Seller shall use its commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken,