|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.
the Code (and any equivalent election for applicable state and local income Tax purposes), which Section 754 election (and equivalent election) shall be filed by the Company (or applicable Subsidiary) with its United States federal income Tax Return (and applicable state and local income Tax Returns) for the taxable year that includes the Closing Date and shall be effective for such taxable year.
(g) Form BOE-100-B. Following the date hereof, NRG, NYLD and Purchaser shall cooperate in preparing a Form BOE-100-B for each Project Company (as defined in the Consent and Indemnity Agreement) that holds one or more properties that will be subject to a Reassessment (as defined in the Consent and Indemnity Agreement) as a result of the Closing. NRG shall deliver a draft of each Form BOE-100-B (including all attachments thereto) to NYLD and Purchaser for their review and comment as soon as reasonably practicable following the date hereof and no later than fifteen (15) days prior to the Closing. For the avoidance of doubt, this Section 11.01(g) shall not apply to DG Project Companies (as defined in the Consent and Indemnity Agreement) for which the Closing does not act as a DG Reassessment Trigger Date (as defined in the Consent and Indemnity Agreement).
Section 11.02 Allocation of Purchase Price. No later than one hundred eighty (180) days after the Closing, Seller and Purchaser shall agree on the draft allocation of the Final Purchase Price and the liabilities of the Company and the Subsidiaries (in each case to the extent treated as consideration for U.S. federal income tax purposes) among the Company’s and the Subsidiaries’ assets consistent with Section 1060 of the Code and the Treasury Regulations thereunder. If Seller and Purchaser, negotiating in good faith, cannot agree on the allocation within one hundred eighty (180) days after the Closing, then either Party may submit the allocation to the Neutral Auditor. All fees and expenses relating to the work, if any, to be performed by the Neutral Auditor will be borne equally by Purchaser and Seller. Seller and Purchaser agree that the agreed allocation (or, if applicable, the decision of the Neutral Auditor) shall be used by Seller and Purchaser as the basis for reporting asset values and other items for purposes of all federal, state, and local Tax Returns, and that neither Seller nor Purchaser or their respective Affiliates will take positions inconsistent with such allocation in notices to any Governmental Authority, in audits or other proceedings with respect to Taxes, or in other documents or notices relating to the transactions contemplated by this Agreement, except as required pursuant to a final “determination” within the meaning of Section 1313 of the Code (or similar provision of state, local or non-U.S. law). Notwithstanding anything in this Section 11.02 to the contrary, any adjustment to the Base Purchase Price pursuant to Section 2.06 shall be allocated to Patriot Wind.
Section 12.01 Survival of Representations, Warranties, Covenants and Agreements. The representations, warranties, covenants, agreements and obligations of Seller and Purchaser contained in this Agreement are material, were relied on by such Parties, and will survive the Closing Date as provided in Section 13.03.
Section 13.01 Indemnification by Seller. From and after the Closing, Seller shall indemnify and hold harmless the Purchaser Indemnified Parties in respect of, and hold each of them harmless from and against, any and all Losses suffered, incurred or sustained by any of them or to which any of them become subject, resulting from, arising out of or related in any way to:
(a) the inaccuracy or breach of any representation or warranty of Seller contained in this Agreement or of Seller contained in the Consent and Indemnity Agreement or in any certificate delivered by Seller pursuant to this Agreement;