Common use of Representation and Warranty Insurance Policy Clause in Contracts

Representation and Warranty Insurance Policy. Purchaser has provided the Company with a final copy of the buyer-side representations and warranties insurance policy to be obtained by Purchaser and issued in the name of Purchaser in connection with this Agreement (collectively, with the binder agreement associated therewith, the “R&W Insurance Policy”). The R&W Insurance Policy, in the form provided to Purchaser, will be bound on the date of this Agreement. Except in the case of Fraud, the R&W Insurance Policy shall at all times provide that the insurer(s) thereunder (including any underwriting representative or agents thereof) expressly exclude any subrogation rights in favor of any party against the Equityholders and their respective Affiliates, and any of their past, present or future direct or indirect parents, shareholders, equityholders, members, directors, officers, partners or employees and Representatives (or the functional equivalent of any such position) (the “Equityholder Related Parties”) arising out of, as a result of, or related to this Agreement, or the negotiation, execution or performance of this Agreement. From and after the binding of the R&W Insurance Policy, Purchaser shall not, and shall cause its Affiliates, Representatives and the Purchaser Indemnified Parties not to, procure, or amend, waive or otherwise modify the R&W Insurance Policy in any manner materially adverse to any Non-Recourse Party or Equityholder Indemnifying Party, including in connection with the provisions as required by this Section 6.13. Purchaser will not novate, or otherwise assign its rights under the R&W Insurance Policy (or do anything which has similar effect); provided, that, Purchaser shall have an absolute right, without having to obtain any Non-Recourse Party’s or Equityholder Related Party’s prior written approval, to assign its rights under the R&W Insurance Policy, in whole or in part, at any time to an Affiliate of the Purchaser or to any successor to Purchaser or any of its Subsidiaries (including the Surviving Corporation or any of its Subsidiaries) by merger, consolidation or reorganization so long as such assignment does not adversely impact any Non-Recourse Party or Equityholder Related Party. Purchaser shall use reasonable best efforts to cause the R&W Insurance Policy to remain in full force and effect after Closing, including (a) complying with and maintaining the R&W Insurance Policy in full force and effect, (b) timely paying or causing to be timely paid, all fees and expenses required under the R&W Insurance Policy, including the total premium, underwriting costs, brokerage commissions, surplus line taxes and other fees and expenses related to the R&W Insurance Policy, and (c) satisfying on a timely basis all conditions necessary for the continuance of coverage under the R&W Insurance Policy.

Representation and Warranty Insurance Policy. Purchaser has provided (a) Subject to the Company with a final copy reimbursement obligations of the buyer-side representations and warranties insurance policy to be obtained by Purchaser and issued Seller in the name of Purchaser in connection with this Agreement (collectivelyimmediately following sentence, with the binder agreement associated therewith, the “R&W Insurance Policy”). The R&W Insurance Policy, in the form provided to Purchaser, will be bound on the date behalf of this Agreement. Except itself and each other Purchaser Indemnified Persons, hereby acknowledges and agrees that, except in the case of Fraud, the R&W Insurance Policy shall at all times provide that the insurer(s) thereunder (including any underwriting representative or agents thereof) expressly exclude any subrogation rights in favor of any party against the Equityholders and their respective Affiliates, and any of their past, present or future direct or indirect parents, shareholders, equityholders, members, directors, officers, partners or employees and Representatives (or the functional equivalent of any such position) (the “Equityholder Related Parties”) arising out of, as a result of, or related to this Agreement, or the negotiation, execution or performance of this Agreement. From and after the binding of the R&W Insurance Policy, Purchaser shall not, and shall cause its Affiliates, Representatives and the Purchaser Indemnified Parties not to, procure, or amend, waive or otherwise modify the R&W Insurance Policy in any manner materially adverse to any Non-Recourse Party or Equityholder Indemnifying Party, including in connection with the provisions as required by this Section 6.13. Purchaser will not novate, or otherwise assign its rights under the R&W Insurance Policy (or do anything which has similar effect); provided, thatintentional fraud, Purchaser shall have an absolute right, without having no recourse against Seller for any and all Damages of any kind related to obtain any Non-Recourse Party’s or Equityholder Related Party’s prior written approval, to assign its rights arising under the R&W Insurance PolicySeller Representations, in whole except the Fundamental Representations and Seller shall have no liability to any Purchaser Indemnified Person for any claims and/or Damages of any kind related to or in part, at any time to an Affiliate arising out of the Seller Representations, except the Fundamental Representations. Purchaser, on behalf of itself and each other Purchaser or to any successor to Purchaser or any Indemnified Persons, hereby further acknowledges and agrees that the provisions of its Subsidiaries (including the Surviving Corporation or any of its Subsidiaries) by merger, consolidation or reorganization so long as such assignment does not adversely impact any Non-Recourse Party or Equityholder Related Party. Purchaser this Section 9.8 shall use reasonable best efforts to cause the R&W Insurance Policy to apply and shall remain in full force and effect after regardless of whether (i) Purchaser obtains at or following the Closing, including or maintains following the Closing, the Representation and Warranty Insurance Policy; (aii) complying with the Representation and maintaining the R&W Warranty Insurance Policy is, for any reason, terminated, revoked, cancelled, exhausted, modified, amended or otherwise altered in full force any form; or (iii) any claim is made by a Purchaser Indemnified Person under the Representation and effect, Warranty Insurance Policy and such claim is denied by the Insurer. (b) timely paying Seller agrees to reimburse Purchaser, promptly upon demand, for any Losses (as defined in the Representation and Warranty Insurance Policy) (other than Losses that are fully indemnified by Seller pursuant to Section 9.2) incurred (i) within the Retention (as defined in the Representation and Warranty Insurance Policy) and (ii) with respect to a breach or causing to be timely paidinaccuracy of the Seller Representations, that are in excess of fifty percent (50%) of the Retention until the Retention has been fully eroded (it being understood that the Purchaser Indemnified Persons shall bear all fees and expenses required Losses constituting the first fifty percent (50%) of the Retention). Without limiting the generality of the foregoing, any rights of the Insurer under the R&W Representation and Warranty Insurance Policy shall not affect and do not affect, expand or increase any liability or obligation of Seller to Purchaser or any Purchaser Indemnified Person in connection with the Transactions. Purchaser shall not amend or supplement the Representation and Warranty Insurance Policy, including without the total premium, underwriting costs, brokerage commissions, surplus line taxes and other fees and expenses related prior written consent of Seller if such amendment or supplement would reasonably be expected to materially expand Seller’s obligation to reimburse Purchaser for losses below the Retention pursuant to this Section 9.8. Notwithstanding anything to the R&W contrary contained in this Agreement or the Representation and Warranty Insurance Policy, (x) at no time shall the Retention exceed $3,943,912 (or, if the FidelityLink Acquisition shall not have been consummated on or prior to the Closing, $3,877,500) (the “Retention Cap”), (y) from and after the first anniversary of the Closing Date, except to the extent expressly provided in Section IV(B)(ii) of the Representation and Warranty Insurance Policy (but in any event subject to the Retention Cap), the Retention shall be reduced to an amount not to exceed $1,971,956 (or, if the FidelityLink Acquisition shall not have been consummated on or prior to the Closing, $1,938,750) and (cz) satisfying on a timely basis all conditions necessary for to the continuance of coverage under extent Purchaser fails to bind the R&W Representation and Warranty Insurance PolicyPolicy or the Representation and Warranty Insurance Policy is terminated, Seller shall have no obligation to reimburse Purchaser with respect to any Retention.

Representation and Warranty Insurance Policy. Purchaser has provided the Company with a final copy of the buyer-side representations (a) Buyer shall obtain and warranties insurance policy to be obtained by Purchaser and issued in the name of Purchaser in connection with this Agreement (collectively, with the binder agreement associated therewith, the “R&W Insurance Policy”). The R&W Insurance Policy, in the form provided to Purchaser, will be bound irrevocably bind coverage on the date hereof under the RWI Policy. Buyer shall not amend, waive or otherwise modify the RWI Policy in any manner that would adversely affect the Shareholders without the consent of this Agreementthe Shareholder Representative including increasing the aggregate amount of the RWI Premium. Except in Buyer shall pay fifty percent (50%) of the case RWI Premium and the Shareholders shall pay the other fifty percent (50%) of Fraudthe RWI Premium, it being understood and agreed that the R&W Insurance Shareholders’ portion of the RWI Premium shall be deducted from the Estimated Merger Consideration and the Final Merger Consideration as a Transaction Expense. The RWI Policy shall at all times provide that include (i) the insurer(s) insurer thereunder (including any underwriting representative expressly waiving, and agreeing not to pursue, directly or agents thereof) expressly exclude indirectly, any subrogation rights in favor of against any party against the Equityholders and their respective Affiliates, and Holder (or any of their past, present or future direct or indirect parentspast or present shareholder, shareholdersmember, equityholderspartner, membersemployee, directors, officers, partners director or employees and Representatives officer (or the functional equivalent of any such position) of any Holder) with respect to any claim made by any insured thereunder, except in the case of Fraud and (ii) the “Equityholder Related Parties”) arising out ofinsurer thereunder expressly agreeing that Buyer and its Affiliates shall have no obligation to pursue any claim against any Holder (or any direct or indirect past or present shareholder, as a result ofmember, partner, employee, director or related to this Agreement, officer (or the negotiationfunctional equivalent of any such position) of any Holder) in connection with an loss, execution liability or performance of this Agreement. From and after damage covered by the binding of the R&W Insurance RWI Policy, Purchaser shall not, and shall cause its Affiliates, Representatives and the Purchaser Indemnified Parties not to, procure, or amend, waive or otherwise modify the R&W Insurance Policy be amended and/or modified in any manner materially adverse to the Holders unless approved in writing by the Shareholder Representative. (b) With respect to any Non-Recourse Party Losses incurred or Equityholder Indemnifying Party, including in connection with suffered by the provisions as required by this Section 6.13. Purchaser will not novate, Buyer Indemnitees resulting from or otherwise assign its rights arising out of a breach of any representation or warranty for which recovery would be available to the Buyer Indemnitees under the R&W Insurance RWI Policy but for the application of the Retention (or do anything which has similar effectas defined in the RWI Policy, the “Retention”) and that are deemed under the terms of the RWI Policy to occur before the first anniversary of the Closing Date (collectively “Retention Amount Losses”), (a) Buyer shall not be entitled to recovery until such Retention Amount Losses exceed fifty percent (50%) of the Retention and (b) thereafter Buyer shall be entitled to recovery from the RWI Holdback Escrow Account for all Retention Amount Losses up to the remaining Retention; provided, that, Purchaser shall have an absolute rightfor the avoidance of doubt, without having to obtain any Non-Recourse Party’s or Equityholder Related Party’s prior written approval, to assign its rights only if the insurer under the R&W Insurance PolicyRWI Policy accepts a claim made under the RWI Policy and actually makes a payment with respect to such claim, shall Buyer be entitled to recover from the RWI Holdback Escrow Account. Buyer shall promptly notify the Shareholder Representative in whole writing of any claim under the RWI Policy and shall provide documentation confirming that the claim has been accepted or in partdenied by the insurer. For the avoidance of doubt, at any time to an Affiliate Retention Amount Losses paid on behalf of the Purchaser Shareholders shall not be deducted from the Indemnity Holdback Amount or serve to reduce the Cap. Following the first (1st) anniversary of the Closing Date, Buyer and the Shareholder Representative shall jointly instruct the Escrow Agent to release any successor remaining amounts in the RWI Holdback Escrow Account to Purchaser or any of its Subsidiaries (including the Surviving Corporation or any of its Subsidiaries) by merger, consolidation or reorganization so long as such assignment does not adversely impact any Non-Recourse Party or Equityholder Related Party. Purchaser shall use reasonable best efforts to cause the R&W Insurance Policy to remain in full force and effect after Closing, including (a) complying with and maintaining the R&W Insurance Policy in full force and effect, (b) timely paying or causing Shareholder Representative to be timely paid, all fees and expenses required under the R&W Insurance Policy, including the total premium, underwriting costs, brokerage commissions, surplus line taxes and other fees and expenses related distributed to the R&W Insurance Policy, and (c) satisfying on a timely basis all conditions necessary for Holders in accordance with the continuance of coverage under the R&W Insurance PolicyOwnership Schedule.