|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.
Section 8.04(a) (each such Transferred Support Obligation, then from and after Closing until such time as it is released in accordance with Section 8.04(a), a “Continuing Support Obligation”):
(i) Seller and Purchaser shall continue to cooperate, and each shall continue to use the same efforts required under Section 8.04(a) and Section 8.04(b) with respect to the pre-Closing period, to obtain promptly the full and unconditional release of each Seller or any of its Affiliates from each Continuing Support Obligation;
(ii) Purchaser shall indemnify Seller and any of its applicable Affiliates from and against any liabilities, losses and reasonable out of pocket costs or expenses incurred by Seller and any such Affiliate in connection with each Continuing Support Obligation (including reimbursement immediately following demand therefor with respect to any demand or draw upon, or withdrawal from, any Continuing Support Obligation, subject to subrogation of Seller or its applicable Affiliate with respect to any right of subrogation, contribution, reimbursement or otherwise from the applicable Company Entity or NYLD Entity benefiting from such Continuing Support Obligation); provided, that, Purchaser’s indemnification obligations under clause (i) shall not affect Seller’s indemnification obligations under Section 13.01.
(iii) Until the full and unconditional release of each such Continuing Support Obligation, Seller shall and shall cause any applicable Affiliates to keep each of such Continuing Support Obligations in full force and effect in accordance with its terms and to otherwise provide replacement credit support obligations, if and when required, pursuant to the terms of the underlying Contracts or other obligations as of the Closing Date by and between the beneficiary of such Continuing Support Obligation and one or more of the Company Entities or the NYLD Entities; provided, that (1) Seller or its applicable Affiliate shall not be required to increase the stated limit under any Continuing Support Obligation as of the Closing Date, except as expressly provided for under the terms of such underlying Contract or obligation, (2) Seller and its applicable Affiliates shall be entitled to decrease the stated limit under any Continuing Support Obligation as of the Closing Date under the express terms of such underlying Contract or obligation, and (3) Seller and its applicable Affiliates shall not be required to replenish or replace any Continuing Support Obligation to the extent such Continuing Support Obligation is drawn upon by the beneficiary thereof. Such replacement support obligations may include the requirement under such underlying Contracts or obligations to issue a replacement letter of credit prior to the expiration of an existing letter of credit that represents a Continuing Support Obligation or to provide substitute support obligations in compliance with such Contracts or obligations to the extent that for any reason the Continuing Support Obligation no longer satisfies the credit support requirements thereunder, such as due to a downgrade event with respect to the credit support provider; and
(iv) to the extent that Seller or any Affiliate of a Seller has any performance obligations under any Continuing Support Obligations from and after the Closing, Seller shall (and shall cause such applicable Affiliate to) at Purchaser’s request and without creating any agency relationship or agency liability in respect thereof: (A) perform such obligations to the maximum extent practicable, or (B) otherwise take such actions as may be reasonably requested from time to time.
(d) Purchaser shall have the right, subject to it giving Seller prior written notice and an opportunity to participate, to contact and have discussions with each beneficiary of a Transferred Support Obligation (or a Continuing Support Obligation) in order to satisfy its obligations under this Section 8.04.
(e) Notwithstanding that the Transferred Support Obligations shall, as set forth on Schedule 4.15(a) and Schedule 4.15(b), include those support obligations in respect of the DG Project Entities, Renew and Buckthorn Wind Class B Holdco LLC, Seller shall indemnify and hold Purchaser harmless to the extent of Losses owed to a beneficiary of such Transferred Support Obligations that (i) arise from an incident occurring prior to the Closing Date, and (ii) are finally determined to be the result of the recapture of any