|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.
Notwithstanding the foregoing, Seller may permit the Company Entities to take commercially reasonable actions with respect to emergency situations so long as (a) the Company Entities shall use Good Industry Practice in mitigation of any such emergency situation and (b) Seller shall promptly (but in any event within twenty-four (24) hours) inform Purchaser of any such actions taken with respect to an emergency situation.
(c) To the extent agreed by Purchaser and Seller, any contribution of additional funds by Seller or any of its Affiliates (other than the Company Entities or NYLD Entities) in respect of any Renew Development Project in excess of those set forth in the Zephyr 2018 Business Plan, may be added to the Base Purchase Price.
(d) Seller covenants and agrees that from the Effective Date until the Closing Date,
Seller will vote or cause the Company to vote, in person or by proxy at any meeting of NYLD stockholders, all of the NYLD Shares against any action, agreement or transaction that is intended to, or would reasonably be expected to, impede, interfere with, delay, postpone, discourage, frustrate the purposes of or adversely affect the transactions contemplated hereby, including the sale of the Acquired Interests or the performance by Seller, the Company Entities or the NYLD Entities of their obligations hereunder, including any action, agreement or transaction that would reasonably be expected to result in any condition set forth Article 9 or Article 10 not being satisfied, or that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of Seller, the Company Entities or the NYLD Entities contained herein or in the Consent and Indemnity Agreement.
(e) Seller or its Affiliates (other than any Company Entity or any NYLD Entity) will be providing all payroll, all back office and certain other services to the Company Entities prior to the Closing Date, and Seller agrees that such services will be provided in order to permit the Company Entities to conduct business consistently with the Zephyr 2018 Business Plan without any markup and otherwise on a basis consistent with historical practice.
Section 7.05 Insurance. From and after the Closing Date, Seller shall, and shall cause its Affiliates to, (a) cooperate with the Company to recover under any “occurrence” based insurance policies maintained by Seller or its Affiliates with third party insurers providing for coverage for losses suffered or caused (or allegedly caused) by any of the Company Entities or the NYLD Entities from events or damages occurring prior to the Closing, (b) use commercially reasonable efforts to provide the Company access to such coverage for any such losses to the extent such coverage is available, and (c) take all actions reasonably requested by the Company to obtain such recovery; provided, that the foregoing shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses. Purchaser acknowledges and agrees that, upon the Closing, the Company Entities and the NYLD Entities shall cease to be insured for events or damages occurring at or after the Closing by Seller’s or its Affiliates’ (other than the Company Entities’ and the NYLD Entities’) insurance policies or by any of Seller’s or its Affiliates’ (other than the Company Entities’ and the NYLD Entities’) self-insured programs. For the avoidance of doubt, following the Closing, Seller and its Affiliates shall retain all rights to control their insurance policies and programs, including the right to exhaust, settle, release, commute, buy back or otherwise resolve disputes with respect to any of its insurance policies and programs, notwithstanding whether any such policies or programs apply to any liabilities of any of the Company Entities or NYLD Entities; provided, however, that Seller shall not, and shall cause its Affiliates not to, take any such action not in good faith or that disproportionately affects the coverage otherwise available to the Company Entities or NYLD Entities under such insurance policies and programs. Following the Closing, Seller shall not be responsible for obtaining or providing insurance coverage for the Company Entities and the NYLD Entities for any event or occurrence after the Closing.
Section 7.06 Risk of Loss. Except as otherwise provided in this Section 7.06, during the Interim Period, all risk of loss or damage to the property or assets of the ProjectCos including the Projects, shall, as