|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) Neither Party shall have any obligation to indemnify the other Indemnified Party with respect to any single item or group of related items indemnifiable under Section 13.01(a) or Section 13.02(a) until the aggregate amount of Losses that are subject to indemnification with respect to such item or group of related items exceeds two hundred thousand dollars ($200,000), in which case the amount of all such Losses (including those that are less than such threshold) shall be included for purposes of computing the Losses that are indemnifiable hereunder or applicable against the Deductible; provided, however, that such threshold 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.
(c) The aggregate liability of the Indemnifying Parties under Section 13.01(a) or Section 13.02(a) shall be limited to an amount equal to one hundred thirty seven million five hundred thousand dollars ($137,500,000) (the “Cap”); provided, that, the Cap 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.
(d) For the avoidance of doubt, the limitations set forth above in this Section 13.04 shall not apply to claims for indemnification under Section 13.01(b), Section 13.01(c), Section 13.01(d), Section 13.01(e), Section 13.01(f) or Section 13.02(b) or to any indemnification claim resulting from a breach of the representations and warranties set forth in Section 4.03.
(e) For purposes of this Article 13, in determining whether there exists a breach or inaccuracy of any representation, warranty, covenant or agreement in this Agreement, and in calculating Losses hereunder, any and all materiality, material adverse effect or similar qualifications in the representations, warranties, covenants or agreements shall be disregarded.
Section 13.05 Procedure for Indemnification of Third Party Claims.
(a) Notice. Whenever any claim by a third party shall arise for indemnification under this Article 13, the Indemnified Party shall promptly notify the Indemnifying Party of the claim and, when known, the facts constituting the basis for such claim and, if known, the notice shall specify the amount or an estimate of the amount of the liability arising therefrom. The Indemnified Party shall provide to the Indemnifying Party copies of all material notices and documents (including court papers) received or transmitted by the Indemnified Party relating to such claim. The failure or delay of the Indemnified Party to deliver prompt written notice of a claim shall not affect the indemnity obligations of the Indemnifying Party hereunder, except to the extent the Indemnifying Party was actually disadvantaged by such failure or delay in delivery of notice of such claim.
(b) Settlement of Losses. If the Indemnified Party has assumed the defense of any claim by a third party which may give rise to indemnity hereunder pursuant to Section 13.06(d), the Indemnified Party shall not settle, consent to the entry of a judgment of or compromise such claim without the prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) of the Indemnifying Party.
Section 13.06 Rights of Indemnifying Party in the Defense of Third Party Claims.
(a) Right to Assume the Defense. In connection with any claim by a third party which may give rise to indemnity hereunder, the Indemnifying Party shall have thirty (30) days after the date the Indemnifying Party is notified of such claim by the Indemnified Party to assume the defense of any such claim, which defense shall be prosecuted by the Indemnifying Party to a final conclusion or settlement in accordance with the terms hereof.