|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.
aforesaid on the basis of the obligations of the Company and the Subsidiaries during the applicable Tax period; provided, that any refund, rebate or similar payment that is attributable to the carryback of any net operating loss or other Tax attribute arising in a Tax period (or portion thereof) beginning after the Closing Date.
(b) Seller shall timely prepare and file with the appropriate authorities all Tax Returns required to be filed by the Company or the applicable Subsidiary with respect to any Pre-Closing Tax Period and shall pay any Taxes due with such Tax Return; provided, that Seller shall provide Purchaser a draft of such Tax Return at least thirty (30) days prior to the due date for such Tax Return (or as soon as reasonable practicable if the due date of such Tax Return is within thirty (30) days of the Closing Date), and shall make any reasonable comments received by Seller in writing from Purchaser at least ten (10) days prior to the due date for such Tax Return. Such Tax Returns shall be prepared in a manner consistent with past practice to the extent consistent with applicable Law.
(c) Seller and Purchaser shall reasonably cooperate, and shall cause their respective Affiliates, employees and agents reasonably to cooperate, in preparing and filing all Tax Returns of the Company and each Subsidiary, including maintaining and making available to each other all records that are necessary for the preparation of any Tax Returns that the Party is required to file under this Article 11, and in resolving all disputes and audits with respect to such Tax Returns.
(d) All sales, use transfer, controlling interest transfer, recording, stock transfer, real property transfer, value-added and other similar Taxes and fees (“Transfer Taxes”), if any, arising out of or in connection with the consummation of the transactions contemplated by this Agreement shall be shared equally by Purchaser and Seller; provided that any Transfer Taxes attributable to the Patriot Sale Transaction shall be borne solely by Seller. Tax Returns that must be filed in connection with such Transfer Taxes shall be prepared and filed by the Party primarily or customarily responsible under applicable local Law for filing such Tax Returns, and such party will use commercially reasonable efforts to provide such Tax Returns to the other Party at least ten (10) Business Days prior to the date such Tax Returns are due to be filed.
(e) If Purchaser receives notice of a claim by a Governmental Authority in respect to Seller Taxes for which Seller is responsible pursuant to this Agreement (“Tax Claim”), Purchaser shall promptly notify Seller of such Tax Claim; provided, that the failure or delay of Purchaser to deliver prompt written notice of a Tax Claim shall not affect the indemnity obligations of Seller hereunder, except to the extent Seller is actually and materially disadvantaged by such failure or delay in delivery of notice of such Tax Claim.
(i) Seller shall have the right, but not the obligation, to control the conduct, through counsel of its own choosing and at its own expense, of any Tax Claim that relates solely to Seller Taxes for which Seller is responsible pursuant to this Agreement; provided, that Purchaser shall have the right to participate in such Tax Claim and Seller shall not settle or compromise any such Tax Claim without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned.
(ii) In the case of any Tax Claim described in Section 11.01(e)(i) which Seller has not elected to control pursuant to such section or in the case of any Tax Claim that relates to Taxes for a Straddle Period, Purchaser shall control the conduct of such Tax Claim; provided, that Seller shall have the right to participate in such Tax Claim and Purchaser shall not settle or compromise any such Tax Claim without the prior written consent of Seller, which consent shall not be unreasonably withheld, delayed or conditioned.
(iii) In the case of any conflict between Section 13.05 and this Section 11.01(e), this Section 11.01(e) shall control with respect to any Tax Claims.
(f) Seller shall cause the Company and each of its Subsidiaries that is treated as a partnership for United States federal income tax purposes to make a timely and effective election under Section 754 of