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SEC Filing Details

10-K
NRG ENERGY, INC. filed this Form 10-K on 03/01/2018
Entire Document
 
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.


occurrences giving rise to or contributing to such failure may, if not otherwise excluded, be deemed to constitute, or be taken into account in determining whether there has been or will be, a Material Adverse Effect); or (viii) the announcement or pendency of the transactions contemplated hereby; provided, however, that any fact, event, circumstance, condition, change or effect resulting from clauses (i) through (iv) and (vi) through (viii) shall nonetheless be taken into consideration in determining whether a Material Adverse Effect has occurred to the extent such changes, events, effects or occurrences have a materially disproportionate impact on the Company Entities and the NYLD Entities, taken as a whole, as compared to similarly situated Persons in the same industry and in the same geographical area in which the Company Entities and the NYLD Entities operate.
Material Company Contracts” means any of the following Contracts (each of which is listed on Schedule 4.04(a); provided, that except as expressly set forth below, Seller shall be permitted to exclude DG Project Contracts from Schedule 4.04(a)) to which any Company Entity (and, in the case of subsections (i) and (n) below, any NYLD Entity) is a party and which are in effect on the Effective Date: (a) each interconnection Contract; (b) each Contract for the purchase, sale or delivery of electricity in any form, including energy, capacity or ancillary services; provided, that Seller shall be required to schedule DG Project Contracts (other than Contracts for the sale of renewable energy certificates) of the type specified in this subsection (b) if such Contracts provide for expected future payments to any DG Project Entity in excess of $1,000,000 in any calendar year; (c) each Contract for the transmission of electricity; (d) each swap, exchange, commodity option or hedging Contract; (e) each operation, maintenance and management Contract that is material to the operation of any Project; provided, that Seller shall be required to schedule DG Project Contracts of the type specified in this subsection (e) if such Contracts are entered into with respect to Projects directly or indirectly owned by any DG Tax Equity Fund; (f) each Contract which provides for aggregate future payments to or from any Company Entity in excess of $1,000,000 in any calendar year, or $10,000,000 in the aggregate; (g) each Contract under which any Company Entity is obligated to sell or lease real or personal property (other than sales of electric energy in the ordinary course of business) having a value in excess of $1,500,000; (h) each Contract under which any Company Entity has (i) extended credit to any Person (other than trade credit extended in the ordinary course of business) or (ii) created, incurred, assumed or guaranteed any material outstanding Indebtedness or granted a Lien (other than a Permitted Lien) on any of the assets of any Company Entity; provided, that Seller shall be required to schedule DG Project Contracts of the type specified in this subsection (h) that evidence Indebtedness for borrowed money in excess of $500,000; (i) each Affiliate Contract; (j) each Contract establishing any joint venture or strategic alliance involving the sharing of profits and losses; (k) each Contract providing for leveraged lease arrangements or tax indemnification arrangements; (l) each Contract providing for product warranty or repair obligations by a manufacturer or vendor of equipment owned or leased by any Company Entity with a fair market value of more than $2,000,000, (m) each Contract requiring the Company Entities to make any capital expenditures in excess of $5,000,000 in the aggregate; provided, that Seller shall be required to schedule DG Project Contracts of the type specified in this subsection (m) which are not related to the acquisition or development of DG Projects from or with third parties; (n) with respect to the NYLD Entities taken as a whole, any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC); (o) any Contract that (i) restricts the ability of the Company Entities to engage in or compete in any business or in any geographic area in any manner that is material to the Business of the Company, (ii) requires the Company Entities to conduct any business on a “most favored nations” basis with a third party that restricts in any material respect the Business of the Company, or (iii) provides for exclusivity, rights of first refusal or offer or any or similar requirement or right in favor of any third party that restricts in any material respect the Business of the Company; (p) any Contract relating to the disposition of any business or material asset (whether by merger, sale of equity interests, sale of assets or otherwise) or otherwise not entered into in the ordinary course of business pursuant to which any Company Entity has any indemnification, earnout or contingent obligations; provided, that Seller shall be required to schedule DG Project Contracts of the type specified in this subsection (p) that are equity capital contribution agreements or similar agreements for the disposition of equity interests related to any DG Tax Equity Fund; (q) any Contract that is a stockholder

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