|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.
to satisfy other conditions to the obligations of Seller contained in this Agreement, and (b) shall not take or fail to take any action that would reasonably be expected to result in the non-fulfillment of any such condition.
Section 8.03 Further Assurances. During the Interim Period, subject to the limitations in Section 8.01(d), Purchaser shall use commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further or other actions as may be necessary to consummate the transactions contemplated by this Agreement, including such actions as are necessary in connection with obtaining any third-party consents and all Governmental Approvals required to be obtained by Purchaser. During the Interim Period, Purchaser shall cooperate with Seller and provide any information regarding Purchaser necessary to assist Seller in making any filings or applications required to be made with any Governmental Authority. All fees and expenses incurred by Purchaser in connection with the foregoing shall be borne exclusively by Seller. Notwithstanding anything to the contrary contained in this Section 8.03, if the Parties are in an adversarial relationship in litigation or arbitration, the furnishing of any documents or information in accordance herewith shall be solely subject to applicable rules relating to discovery and the remainder of this Section 8.03 shall not apply.
Section 8.04 Transferred Support Obligations.
(a) During the Interim Period, Purchaser and Seller shall (and shall cause their controlled Affiliates to) use commercially reasonable efforts to effect the full and unconditional release, effective as of the Closing Date, of Seller or the applicable Affiliate from all Transferred Support Obligations and all obligations and liabilities in respect thereof, in the case of Purchaser, by:
(i) offering to furnish a letter of credit on substantially similar terms (including the stated amount) to replace each existing letter of credit that is a Transferred Support Obligation;
(ii) offering to provide a Company guaranty on substantially similar terms (including the stated amount, if any, but excluding any minimum credit rating, minimum total assets or similar requirement, if any, as applicable to the current guarantor) to replace each existing guaranty that is a Transferred Support Obligation; and
(iii) offering to provide any other replacement credit support in the same form and on substantially similar terms (including the same stated amount, if any) as any Transferred Support Obligations;
provided, that, in the case of each of the foregoing, the beneficiary of such replacement support obligation shall agree to customary obligations to reimburse the issuer or other responsible party to the extent a claim is ever made in respect of such support obligation.
(b) The foregoing commercially reasonable efforts to replace any and all Transferred Support Obligations shall be at Seller’s sole cost and expense, including Seller’s obligation to offer to pay (and thereafter to promptly remit such payment) with respect to any consent fees or reimbursement of counterparty costs and expenses in connection with the foregoing efforts to replace the Transferred Support Obligations (excluding the costs and expense of Purchaser’s replacement support obligations in accordance with Section 8.04(a)). For the avoidance of doubt, it is specifically acknowledged and agreed by the Parties that Purchaser and its Affiliates shall not be obligated to incur, pay, reimburse or provide any liability, compensation, consideration or charge in order to replace the Transferred Support Obligations except for the foregoing proposed replacement credit support obligations.
(c) If Seller and Purchaser are unable to obtain the full and unconditional release of Seller and any applicable Affiliate of Seller from any Transferred Support Obligation as of the Closing pursuant to