|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.
Purchaser or a Purchaser Affiliate, or (b) all of the conditions to any NYLD Entity’s obligations to close a transaction pursuant to a purchase and sale agreement arising under the Third Amended and Restated NRG/NYLD ROFO Agreement have been satisfied, but such NYLD Entity, due to its inability to pay the purchase price, has assigned such purchase and sale agreement to Purchaser or a Purchaser Affiliate, Purchaser shall pay or shall cause its Affiliate to pay, within the time specified in the Carlsbad PSA or other applicable assigned purchase and sale agreement, the purchase price specified in Carlsbad PSA or such other purchase and sale agreement. The Parties acknowledge and agree that Purchaser’s obligation under this Section 8.08 with respect to the Carlsbad PSA shall be covered by the Carlsbad Backstop Equity Commitment Letter.
Section 8.09 Buckthorn Solar PSA. After the Closing Date, Purchaser shall cause the Company to remit to Seller (or to have Renew remit to Seller) the actual payments received by “Seller” from “Purchaser” (as each such term is defined in the Buckthorn Solar PSA) pursuant to Sections 2.05, 2.06 or 2.07 of the Buckthorn Solar PSA (in each case within five (5) Business Days after such payments are otherwise due and payable pursuant to the Buckthorn Solar PSA).
Section 8.10 Nonsolicitation of Seller Employees. From the Effective Date until the **** (***) anniversary of the Closing Date, except as contemplated by Section 8.06, Purchaser shall not, and shall cause its controlled Affiliates not to, directly or indirectly, without the prior written consent of Seller, recruit, solicit, hire or retain any person who is, or at any time during the one hundred eighty (180) days prior to any such recruitment, solicitation, hiring or retention, was, an employee of Seller or any of its controlled Affiliates (other than a Company Entity or a NYLD Entity), or induce, or attempt to induce, any person who is, or at any time during the one hundred eighty (180) days prior to such inducement or attempt to induce, was, an employee of Seller any of its controlled Affiliates (other than a Company Entity or a NYLD Entity) to terminate his or her employment or service with, or otherwise cease his or her relationship with, Seller any of its controlled Affiliates (other than a Company Entity or a NYLD Entity); provided, however, that the foregoing restrictions shall not prohibit general solicitations of employment not directed to employees of Seller any of its controlled Affiliates (other than a Company
Entity or a NYLD Entity).
Section 8.11 Repayment of Final Settlement Amount. Within five (5) Business Days after Renew’s receipt of the fifteen million dollar ($15,000,000) payment to be made to Renew by SunPower Corporation, Systems as “Cash Consideration” pursuant to Section 1 of the Final Settlement Agreement (such amount, the “Final Settlement Amount”), Purchaser shall, or shall cause Renew to, pay such Final Settlement Amount to Seller, by wire transfer of immediately available funds to the account or accounts as shall be specified by Seller.
Section 8.12 Development of Patriot Wind. Following the Closing Date, Purchaser shall cause Renew or the applicable Renew Subsidiary to proceed diligently and in good faith to achieve commercial operation for Patriot Wind (which shall be certified by the independent engineer for such projects) consistent with applicable Law and Good Industry Practice.
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder to purchase the Acquired Interests and effect the Closing are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Purchaser in its sole discretion):
Section 9.01 Bring-Down of Seller’s Representations and Warranties. (a) The representations and warranties made by Seller in Section 3.09 and Section 4.12(d) shall be true and correct in all respects as of