|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.
(b) the breach by Seller of, or the failure by Seller to perform, any of its covenants or other agreements contained in this Agreement or the Consent and Indemnity Agreement;
(c) Seller Taxes;
(d) all Controlled Group Liabilities;
(e) all Liabilities related to the Excluded Assets, whether arising before, on or after the Closing; or
(f) all Liabilities incurred in respect of the construction, development, ownership, operation or management of Patriot Wind, including all Project Construction Costs and Taxes, but excluding Liabilities incurred to the extent arising from Purchaser’s material breach of Section 8.12.
Section 13.02 Indemnification by Purchaser. From and after the Closing, Purchaser shall indemnify and hold harmless the Seller Indemnified Parties in respect of, and hold each of them harmless from and against, any and all Losses suffered, incurred or sustained by any of them or to which any of them become subject, resulting from, arising out of or relating in any way to:
(a) the inaccuracy or breach of any representation or warranty of Purchaser contained in this Agreement or in any certificate delivered by Purchaser pursuant to this Agreement; or
(b) the breach by Purchaser of, or the failure by Purchaser to perform, any of its covenants or other agreements contained in this Agreement.
Section 13.03 Period for Making Claims. Other than in the case of fraud or willful breach, no claim under this Agreement (except as provided below) may be made unless such Party shall have delivered, with respect to any claim for breach of any representation, warranty, covenant, agreement or obligation made in this Agreement, a written notice of claim prior to the date falling twelve (12) months after the Closing Date; provided, that, (i) the Fundamental Representations and the representations and warranties contained in Section 4.08 shall survive the Closing for forty-eight (48) months following the Closing Date, (ii) the representations and warranties in Section 4.03 and Section 4.16 and any indemnification claims with respect to Seller Taxes shall survive until thirty (30) days after the expiration of the applicable statute of limitations, (iii) the indemnification for Controlled Group Liabilities shall survive indefinitely and (iv) the covenants, agreements and obligations in this Agreement to be performed after the Closing Date shall survive until the date on which they have been fully performed; provided, further, that, if written notice for a claim of indemnification has been provided by the Indemnified Party pursuant to Section 13.05(a) on or prior to the applicable survival expiration date, then the obligation of the Indemnifying Party to indemnify the Indemnified Party pursuant to this Article 13 shall survive with respect to such claim until such claim is finally resolved.
Section 13.04 Limitations on Claims.
(a) Neither Party shall have any obligation to indemnify the other Indemnified Party under Section 13.01(a) or Section 13.02(a) until the aggregate amount of all Losses incurred by the Indemnified Parties that are subject to indemnification pursuant to this Article 13 equals or exceeds thirteen million seven hundred fifty thousand dollars ($13,750,000) (the “Deductible”) in which event the Indemnifying Party shall be liable for Losses under Section 13.01(a) or Section 13.02(a) only to the extent they are in excess of the Deductible; provided, however, that the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, (ii) any breach of any Fundamental Representation or (iii) fraud.