GenOn Solvency. On and immediately after the Merger Closing Date, GenOn (after giving effect to the Mergers, including XxxXx’s assumption of Escrow Issuer’s obligations under the Securities, and the other transactions related thereto as described in each of the Time of Sale Information and the Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of GenOn and its subsidiaries is not less than the total amount required to pay the liabilities of GenOn and its subsidiaries on their total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) GenOn and its subsidiaries are able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum and the borrowings under the Credit Facility, if any, neither GenOn nor any its subsidiaries is incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) neither GenOn nor any of its subsidiaries is engaged in any business or transaction, nor propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which GenOn and its subsidiaries are engaged; and (v) neither GenOn nor any of its subsidiaries is not a defendant in any civil action that would result in a judgment that either GenOn or any of its subsidiaries is or would become unable to satisfy.
