NRG Covenant. To the fullest extent permitted by applicable law, the GenOn Entities shall be entitled to use available current- year losses and net operating losses (“NOLs”) (including NOL carryforwards) of the NRG consolidated group in relation to transactions treated as taxable transactions (including, for the avoidance of doubt, any so-called “partial Bruno’s” or “Bruno’s” transaction) undertaken by the GenOn Entities that (i) are sales to third-party purchasers consummated on or prior to December 31, 2018 pursuant to an acquisition agreement originally executed in connection with the mergers and acquisitions process underway as of the effective date of this Agreement (an “M&A Sale Transaction”), (ii) are transactions other than M&A Sale Transactions that are so-called “partial Bruno’s” or “Bruno’s” transactions (or other substantially similar transactions) consummated on or prior to December 31, 2018, or (iii) (A) involve the Choctaw location, and (B) are either (1) sales to a third-party purchaser consummated on or prior to December 31, 2019, pursuant to an acquisition agreement originally executed in connection with the mergers and acquisitions process underway as of the effective date of this Agreement (a “Chocktaw M&A Transaction”) or (2) transactions other than Chocktaw M&A Transactions that are so-called “partial Bruno’s” or “Bruno’s” transactions (or other substantially similar transactions) consummated on or prior to December 31, 2019 (the transactions described in Sections 7.01(i), (ii), and (iii), collectively, the “Permitted Dispositions”); provided, that for the avoidance of doubt, any current-year losses or NOLs (including NOL carryforwards) of the GenOn Entities may be utilized by the GenOn Entities in connection with any such transaction regardless of whether such transaction is a Permitted Disposition to the extent provided for in the Code without the payment of any compensation pursuant to Section 7.02(b).
NRG Covenant. NRG shall not, and shall not permit any of its Affiliates to, take or permit any action, including consummating any Disposition under the Operating Agreement, that would result in NRG failing to own and control, directly or indirectly, at least thirty-five percent (35%) of the net beneficial ownership interests in each Unit (the “NRG Hold Requirement”) until the earlier of: (a) the fifth (5th) anniversary of the Commercial Operation Date and (b) the date that Investor ceases to directly or indirectly hold at least ten percent (10%) of the ownership interests of NINA Holdings; provided, that if Investor and NINA agree to, directly or indirectly, Dispose of any interests in the Project (whether by a sale of their interests in NINA Holdings or otherwise) for the purpose of funding an investment in Future ABWR Projects, TEPCO shall be deemed to have automatically waived the NRG Hold Requirement. Any attempted Disposition by NRG or its Affiliates of any interests in the Project in violation of this Section 2.1 shall be, and is hereby declared, null and void ab initio.
