Common use of Indemnification by the Class B Member Clause in Contracts

Indemnification by the Class B Member. Subject to the terms and conditions of this Article XI, each Class B Member shall indemnify, defend, reimburse and hold harmless each Class A Member and its respective parent or subsidiary companies, shareholders, partners, members and other Affiliates, and each of their respective officers, directors, managers, employees, attorneys, contractors and agents (collectively, the “Class A Parties”), from and against any and all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, Taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including such fees and expenses at trial and on any appeal), of any nature whatsoever (collectively, “Damages”) asserted against, resulting to, imposed upon, or incurred by the Class A Parties, directly or indirectly, by reason of or resulting from: (i) any breach or failure by a Class B Member (whether in its capacity as a Class B Member, the Manager, the Tax Matters Member or otherwise), of any of its respective representations, warranties, covenants, obligations or agreements contained in any Investment Document or any certificate delivered thereunder or hereunder; (ii) any indemnity obligation due and payable to a Fund Investor under the Fund Documents, solely to the extent relating to (x) a breach of Sections 3.1 (Organization and Good Standing), 3.2 (Authorization, Execution and Enforceability), 3.4 (Subsidiaries; Non-Related Liabilities), 3.5 (Members of the Company; Additional Membership Interests), 3.6 (Warranty of Title; Personal Property), 3.9 (Brokers), 4.1 (Organization and Good Standing), 4.2 (Authorization, Execution and Enforceability), 4.4 (Brokers) and 4.8 (Ownership) of the ECCA or breach of any similar representations set forth in any other Fund Document (y) a breach of Sections 3.23 (Taxes) and 3.24(a)-(c), (f), and (g) (Tax Representations) of the ECCA or breach of any similar representations set forth in any other Fund Document (but for the avoidance of doubt, not including any representation with respect to the tax structure of any transaction or with respect to, or which becomes incorrect as a result of, a change in law including a change in Tax law) (unless caused by the breach or failure by a Class A Member of any of its representations, warranties, covenants, obligations or agreements contained in this Agreement or any other Investment Document) or (z) a breach by an affiliate of the Class B Member under the MIPAs, the NRG Guaranty, the Sponsor Guaranty, the O&M Agreement, or the Management Services Agreement (all as defined in the ECCA); (iii) any indemnity obligation due and payable to a Fund Investor under the Fund Documents, in connection with a breach not covered by (ii) above (unless caused by the breach or failure by the a Class A Member of any of its representations, warranties, covenants, obligations or agreements contained in this Agreement or any other Investment Document); provided, that, notwithstanding anything to the contrary contained herein, the Damages indemnified by the Class B Members pursuant to this clause (iii) shall be limited to an amount equal to 20% of the applicable indemnity obligation due and payable to a Fund Investor under the Fund Documents; (iv) any underdeployment penalty or other amount due and payable to a Fund Investor under the Fund Documents as a result of a reduction of such Fund Investor’s capital contributions under the Fund Documents; (v) any upfront fees or penalties payable to a Fund Investor or backleverage lender in connection with the Fund Documents or backleverage of a Backleveraged Fund Company, as applicable or (vi) any breach or failure of any representations or warranties of any Subject Company to any Fund Investor regarding any Project which are contained in any Fund Document (collectively, “Class A Claims”). For the avoidance of doubt, in the event that representations or warranties under the agreements described in clause (ii)(z) of the preceding sentence are made to a Fund Investor and not to the applicable Fund Company, Damages in respect of breaches thereof shall: (i) include Damages resulting from a claim by the Fund Investor, and (ii) be determined as if such representations and warranties were made to the Fund Company as well as the Fund Investor. To the extent that any such Damages relating to an Investor Claim remain unpaid after a claim has been properly made therefor pursuant to this Article XI that is not subject to a bona fide dispute, any distributions otherwise payable to the Class B Members under this Agreement shall be used to satisfy the obligations of each Class B Member (whether in its capacity as a Class B Member, the Manager, the Tax Matters Member or otherwise), hereunder.

Indemnification by the Class B Member. Subject to the terms and conditions of this Article XI, each Class B Member shall indemnify, defend, reimburse and hold harmless each Class A Member and its respective parent or subsidiary companies, shareholders, partners, members and other Affiliates, and each of their respective officers, directors, managers, employees, attorneys, contractors and agents (collectively, the “Class A Parties”), from and against any and all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, Taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including such fees and expenses at trial and on any appeal), of any nature whatsoever (collectively, “Damages”) asserted against, resulting to, imposed upon, or incurred by the Class A Parties, directly or indirectly, by reason of or resulting from: from (i) any breach or failure by a Class B Member (whether in its capacity as a Class B Member, the Manager, the Tax Matters Member or otherwise), of any of its respective representations, warranties, covenants, obligations or agreements contained in any Investment Document or any certificate delivered thereunder or hereunder; , (ii) any indemnity obligation due and payable to a Fund Investor under the Fund Documents, solely to the extent relating to (x) a breach of Sections 3.1 (Organization and Good Standing), 3.2 (Authorization, Execution and Enforceability), 3.4 (Subsidiaries; Non-Related Liabilities), 3.5 (Members of the Company; Additional Membership Interests), 3.6 (Warranty of Title; Personal Property), 3.9 (Brokers), 4.1 (Organization and Good Standing), 4.2 (Authorization, Execution and Enforceability), 4.4 (Brokers) and 4.8 (Ownership) of the ECCA or breach of any similar representations set forth in any other Fund Document (y) a breach of Sections 3.23 (Taxes) and 3.24(a)-(c), (f), and (g) (Tax Representations) of the ECCA or breach of any similar representations set forth in any other Fund Document (but for the avoidance of doubt, not including any representation with respect to the tax structure of any transaction or with respect to, or which becomes incorrect as a result of, a change in law including a change in Tax law) (unless caused by the breach or failure by a Class A Member of any of its representations, warranties, covenants, obligations or agreements contained in this Agreement or any other Investment Document) or (z) a breach by an affiliate of the Class B Member under the MIPAs, the NRG Guaranty, the Sponsor Guaranty, the O&M Agreement, or the Management Services Agreement (all as defined in the ECCA); (iii) any indemnity obligation due and payable to a Fund Investor under the Fund Documents, in connection with a breach not covered by (ii) above Documents (unless caused by the breach or failure by the a Class A Member of any of its representations, warranties, covenants, obligations or agreements contained in this Agreement or any other Investment Document); provided, that, notwithstanding anything to the contrary contained herein, the Damages indemnified by the Class B Members pursuant to this clause (iii) shall be limited to an amount equal to 20% of the applicable indemnity obligation due and payable to a Fund Investor under the Fund Documents; (iv) any underdeployment penalty or other amount due and payable to a Fund Investor under the Fund Documents as a result of a reduction of such Fund Investor’s capital contributions under the Fund Documents; (v) any upfront fees or penalties payable to a Fund Investor or backleverage lender in connection with the Fund Documents or backleverage of a Backleveraged Fund Company, as applicable or (viiv) any breach or failure of any representations or warranties of any Subject Company to any Fund Investor regarding any Project which are contained in any Fund Document Document; or (v) any breach or failure of any representations or warranties of any seller under a purchase agreement to any Fund Investor or Fund Company regarding any Project, where such seller is an Affiliate of the Class B Member (collectively, “Class A Claims”). For the avoidance of doubt, in the event that representations or warranties under the agreements described in clause (ii)(zv) of the preceding sentence are made to a Fund Investor and not to the applicable Fund Company, Damages in respect of breaches thereof shall: (i) include Damages resulting from a claim by the Fund Investor, and (ii) be determined as if such representations and warranties were made to the Fund Company as well as the Fund Investor. To the extent that any such Damages relating to an Investor Claim remain unpaid after a claim has been properly made therefor pursuant to this Article XI that is not subject to a bona fide dispute, any distributions otherwise payable to the Class B Members under this Agreement shall be used to satisfy the obligations of each Class B Member (whether in its capacity as a Class B Member, the Manager, the Tax Matters Member or otherwise), hereunder.

Indemnification by the Class B Member. Subject to the terms and conditions of this Article XI, each Class B Member shall indemnify, defend, reimburse and hold harmless each Class A Member and its respective parent or subsidiary companies, shareholders, partners, members and other Affiliates, and each of their respective officers, directors, managers, employees, attorneys, contractors and agents (collectively, the “Class A Parties”), from and against any and all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, Taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including such fees and expenses at trial and on any appeal), of any nature whatsoever (collectively, “Damages”) asserted against, resulting to, imposed upon, or incurred by the Class A Parties, directly or indirectly, by reason of or resulting from: from (i) any breach or failure by a Class B Member (whether in its capacity as a Class B Member, the Manager, the Tax Matters Member or otherwise), of any of its respective representations, warranties, covenants, obligations or agreements contained in any Investment Document or any certificate delivered thereunder or hereunder; , or (ii) any indemnity obligation due and payable to a Fund Investor under the Fund Documents, solely to the extent relating to (x) a breach of Sections 3.1 (Organization and Good Standing), 3.2 (Authorization, Execution and Enforceability), 3.4 (Subsidiaries; Non-Related Liabilities), 3.5 (Members of the Company; Additional Membership Interests), 3.6 (Warranty of Title; Personal Property), 3.9 (Brokers), 4.1 (Organization and Good Standing), 4.2 (Authorization, Execution and Enforceability), 4.4 (Brokers) and 4.8 (Ownership) of the ECCA or breach of any similar representations set forth in any other Fund Document (y) a breach of Sections 3.23 (Taxes) and 3.24(a)-(c), (f), and (g) (Tax Representations) of the ECCA or breach of any similar representations set forth in any other Fund Document (but for the avoidance of doubt, not including any representation with respect to the tax structure of any transaction or with respect to, or which becomes incorrect as a result of, a change in law including a change in Tax law) (unless caused by the breach or failure by a Class A Member of any of its representations, warranties, covenants, obligations or agreements contained in this Agreement or any other Investment Document) or (z) a breach by an affiliate of the Class B Member under the MIPAs, the NRG Guaranty, the Sponsor Guaranty, the O&M Agreement, or the Management Services Agreement (all as defined in the ECCA); (iii) any indemnity obligation due and payable to a Fund Investor under the Fund Documents, in connection with a breach not covered by (ii) above Documents (unless caused by the breach or failure by the a Class A Member of any of its representations, warranties, covenants, obligations or agreements contained in this Agreement or any other Investment Document); provided, that, notwithstanding anything to the contrary contained herein, the Damages indemnified by the Class B Members pursuant to this clause (iii) shall be limited to an amount equal to 20% of the applicable indemnity obligation due and payable to a Fund Investor under the Fund Documents; (iv) any underdeployment penalty or other amount due and payable to a Fund Investor under the Fund Documents as a result of a reduction of such Fund Investor’s capital contributions under the Fund Documents; (v) any upfront fees or penalties payable to a Fund Investor or backleverage lender in connection with the Fund Documents or backleverage of a Backleveraged Fund Company, as applicable or (vi) any breach or failure of any representations or warranties of any Subject Company to any Fund Investor regarding any Project which are contained in any Fund Document (collectively, “Class A Claims”). For the avoidance of doubt, in the event that representations or warranties under the agreements described in clause (ii)(z) of the preceding sentence are made to a Fund Investor and not to the applicable Fund Company, Damages in respect of breaches thereof shall: (i) include Damages resulting from a claim by the Fund Investor, and (ii) be determined as if such representations and warranties were made to the Fund Company as well as the Fund Investor. To the extent that any such Damages relating to an Investor Claim remain unpaid after a claim has been properly made therefor pursuant to this Article XI that is not subject to a bona fide dispute, any distributions otherwise payable to the Class B Members under this Agreement shall be used to satisfy the obligations of each Class B Member (whether in its capacity as a Class B Member, the Manager, the Tax Matters Member or otherwise), hereunder.

Indemnification by the Class B Member. Subject to the terms and conditions of this Article XI, each Class B Member shall indemnify, defend, reimburse and hold harmless each Class A Member and its respective parent or subsidiary companies, shareholders, partners, members and other Affiliates, and each of their respective officers, directors, managers, employees, attorneys, contractors and agents (collectively, the “Class A Parties”), from and against any and all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, Taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including such fees and expenses at trial and on any appeal), of any nature whatsoever (collectively, “Damages”) asserted against, resulting to, imposed upon, or incurred by the Class A Parties, directly or indirectly, by reason of or resulting from: from (i) any breach or failure by a Class B Member (whether in its capacity as a Class B Member, the Manager, the Tax Matters Member or otherwise), of any of its respective representations, warranties, covenants, obligations or agreements contained in any Investment Document or any certificate delivered thereunder or hereunder; , (ii) any indemnity obligation due and payable to a Fund Investor under the Fund Documents, solely to the extent relating to (x) a breach of Sections 3.1 (Organization and Good Standing), 3.2 (Authorization, Execution and Enforceability), 3.4 (Subsidiaries; Non-Related Liabilities), 3.5 (Members of the Company; Additional Membership Interests), 3.6 (Warranty of Title; Personal Property), 3.9 (Brokers), 4.1 (Organization and Good Standing), 4.2 (Authorization, Execution and Enforceability), 4.4 (Brokers) and 4.8 (Ownership) of the ECCA or breach of any similar representations set forth in any other Fund Document (y) a breach of Sections 3.23 (Taxes) and 3.24(a)-(c), (f), and (g) (Tax Representations) of the ECCA or breach of any similar representations set forth in any other Fund Document (but for the avoidance of doubt, not including any representation with respect to the tax structure of any transaction or with respect to, or which becomes incorrect as a result of, a change in law including a change in Tax law) (unless caused by the breach or failure by a Class A Member of any of its representations, warranties, covenants, obligations or agreements contained in this Agreement or any other Investment Document) or (z) a breach by an affiliate of the Class B Member under the MIPAs, the NRG Guaranty, the Sponsor Guaranty, the O&M Agreement, or the Management Services Agreement (all as defined in the ECCA); (iii) any indemnity obligation due and payable to a Fund Investor under the Fund Documents, in connection with a breach not covered by (ii) above Documents (unless caused by the breach or failure by the a Class A Member of any of its representations, warranties, covenants, obligations or agreements contained in this Agreement or any other Investment Document); provided, that, notwithstanding anything to the contrary contained herein, the Damages indemnified by the Class B Members pursuant to this clause (iii) shall be limited to an amount equal to 20% of the applicable indemnity obligation due and payable to a Fund Investor under the Fund Documents; (iv) any underdeployment penalty or other amount due and payable to a Fund Investor under the Fund Documents as a result of a reduction of such Fund Investor’s capital contributions under the Fund Documents; (v) any upfront fees or penalties payable to a Fund Investor or backleverage lender in connection with the Fund Documents or backleverage of a Backleveraged Fund Company, as applicable or (viiv) any breach or failure of any representations or warranties of any Subject Company to any Fund Investor regarding any Project which are contained in any Fund Document Document; or (v) any breach or failure of any representations or warranties of any seller under a purchase agreement to any Fund Investor or Fund Company regarding any Project, where such seller is an Affiliate of the Class B Member (collectively, “Class A Claims”). For the avoidance of doubt, in the event that representations or warranties under the agreements described in clause (ii)(zv) of the preceding sentence are made to a Fund Investor and not to the applicable Fund Company, Damages in respect of breaches thereof shall: (i) include Damages resulting from a claim by the Fund Investor, and (ii) be determined as if such representations and warranties were made to the Fund Company as well as the Fund Investor. To the extent that any such Damages relating to an Investor Claim remain unpaid after a claim has been properly made therefor pursuant to this Article XI that is not subject to a bona fide dispute, any distributions otherwise payable to the Class B Members under this Agreement shall be used to satisfy the obligations of each Class B Member (whether in its capacity as a Class B Member, the Manager, the Tax Matters Member or otherwise), hereunder.