Representations and Warranties Insurance. 11.1. Each PARTY hereby represents and warrants to the other PARTY that (a) it has all requisite power and authority to enter into this AGREEMENT and to consummate the transactions contemplated hereby, and (b) this AGREEMENT has been duly and validly executed and delivered by such PARTY and constitutes its valid, legal and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
Representations and Warranties Insurance. Prior to the Closing, subject to the other provisions of this Article V, the Seller and its Affiliates and Representatives shall reasonably cooperate with the Purchaser and its Representatives in connection with responding to any reasonable additional diligence requests by any insurer under any R&W Insurance Policy and other matters reasonably required by such insurer under such R&W Insurance Policy to bring down and finalize coverage under such R&W Insurance Policy at the Closing.
Representations and Warranties Insurance. Attached hereto as Exhibit F is an executed, accurate and complete copy of the Binder Agreement, which includes as an exhibit an accurate and complete copy of the R&W Insurance Policy. The Buyer has delivered to the applicable insurance broker, for release as of the Closing to the Insurer and/or managing general underwriter(s) under the R&W Insurance Policy, instructions to bind the R&W Insurance Policy in accordance with the terms and conditions set forth in the Binder Agreement. Except as expressly set forth in the Binder Agreement, there are no conditions precedent to the obligation of the Insurer to issue the R&W Insurance Policy. There are no side letters or other agreements, contracts or arrangements relating to the issuance of the R&W Insurance Policy in accordance with the Binder Agreement. To the Buyer’s knowledge, there is no fact or occurrence as of the date of this Agreement that could reasonably be expected to cause the conditions to the issuance of the R&W Insurance Policy not to be satisfied at or before the Closing, and the Buyer has no reason to believe that it will be unable to satisfy on a timely basis any term or condition to be satisfied by it contained in the Binder Agreement. The Binder Agreement has not been amended, restated or otherwise modified or waived on or prior to the date of this Agreement and the commitments of the Insurer contained in the Binder Agreement have not been withdrawn, modified or rescinded on or prior to the date of this Agreement. On or prior to the date of this Agreement, the Buyer has delivered to the Insurer (with a copy to the Sellers) an inception no claims declaration in the form required to be delivered in accordance with the Binder Agreement and has paid in full any and all premiums or other fees or expenses required to be paid pursuant to the terms of the Binder Agreement.
Representations and Warranties Insurance. Prior to the date of this Agreement, Buyer has obtained and made available to Seller a “Buyer side” representations and warranties insurance policy from Xxxxxxx USA Services, Inc. (the “R&W Insurance Carrier”), substantially in the form attached hereto as Exhibit E, insuring Buyer for (among other things) (a) covered Losses due to breaches of representations and warranties of Seller under Article III and the Company under Article IV and (b) indemnity for certain pre-Closing Tax liabilities under Section 6.06. Buyer shall ensure that the R&W Insurance Policy is issued on or before the Closing Date. Without limiting the generality of the foregoing, Buyer shall timely pay all premiums and other amounts required to cause the R&W Insurance Policy to become effective in accordance with its terms. Seller shall deliver a copy of the Data Room hosted by Fidus on behalf of the Company to the R&W Insurance Carrier within a reasonable period of time (but no longer than ten (10) Business Days) following the Closing. Following the Closing, Buyer acknowledges and agrees that the R&W Insurance Policy shall provide that the Insurer shall waive any right or entitlement of subrogation against Seller or any of its Affiliates for any claims (other than claims arising from Fraud) paid to the Buyer under the R&W Insurance Policy. Buyer further acknowledges that the R&W Insurance Policy shall provide that Seller may enforce this waiver directly against the Insurer, and as such is an intended third-party beneficiary for purposes of subrogation claims within the scope of the waiver. Buyer shall not (and shall cause its Affiliates (including, after the Closing, the Company) to not) amend, modify, terminate or waive any subrogation provision in the R&W Insurance Policy in a manner that would adversely affect to Seller, without the prior written consent of Seller. Buyer shall be solely responsible for payment of the R&W Insurance Policy premium and R&W Insurance Carrier expense payment.
Representations and Warranties Insurance. (a) Buyer, in its sole discretion, may obtain and bind, at its sole cost and expense, a purchaser side representations and warranties policy in connection with the representations and warranties made hereunder (the “Representations and Warranties Insurance Policy”). Seller shall not be liable for any retention amount under such Representations and Warranties Insurance Policy. If Buyer obtains such insurance, Buyer will provide a true and correct copy of the draft binder for the Representations and Warranties Insurance Policy and the form of Representations and Warranties Insurance Policy so bound to the Seller. Under no circumstances shall any of Seller’s direct and indirect Affiliates, shareholders, officers, directors, trustees, partners, principals, members, employees, limited partners, general partners, agents, advisors, investors, representatives and successors and/or assigns of the foregoing (collectively, the “Seller Indemnitees”) bear any liability or responsibility in connection with the same and it is specifically provided that the Representations and Warranties Insurance Policy provider (and any other insurance provider) shall have no subrogation right, entitlement of privilege, or any recourse whatsoever, against Seller pursuant to this Agreement (other than in the case of liability of Seller due to Seller’s Fraud), the Representations and Warranties Insurance Policy or otherwise. With respect to Fraud, the parties agree that neither the foregoing nor any provision of this Agreement to the contrary shall limit any claim for Fraud, it being understood and agreed that, prior to Buyer making any claim against Seller for Fraud, Buyer shall, if applicable, first (x) use commercially reasonable efforts to initiate such claim under the Representations and Warranties Policy, and to prosecute such claim to a final determination by the provider, and (y) use commercially reasonable efforts to comply with the material terms of the Representations and Warranties Policy in all material respects; provided, that, Buyer shall not be restricted from taking any action required by, or from making any claims pursuant to, the Representations and Warranties Policy (including in relation to the provider’s rights of subrogation thereunder), or from taking any action or for making any claims required to prevent Buyer from being time-barred or otherwise restricted from making said Fraud claim, including, without limitation, under the Representations and Warranties Policy...
Representations and Warranties Insurance. Purchaser shall pay all costs and expenses in connection with the procurement of, and Purchaser and its Affiliates will not amend, waive or otherwise modify, the buy-side representations and warranties insurance policy relating to this Agreement (the “R&W Insurance Policy”) obtained by Purchaser in any way that would allow the insurer thereunder or any other Person to subrogate or otherwise make or bring any proceeding against Seller or any of its Affiliates or any past, present or future director, manager, officer, employee or advisor of any of the foregoing based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement. For the avoidance of doubt, nothing in this Agreement is intended to, nor shall it have the effect of, limiting or diminishing Purchaser’s (or Seller’s, its Affiliates’ and their respective officers’, directors’, managers’, employees’, agents’, successors’ and assignees’) or any other Person’s right to seek or obtain recovery under the R&W Insurance Policy.
Representations and Warranties Insurance. Prior to the Effective Time, the Purchaser shall use its commercially reasonable efforts to obtain a buyer’s representation and warranty insurance policy with a reputable insurance company providing for Loss coverage for any Losses that may arise with respect to any breaches of or inaccuracies in this Agreement (the “R&W Insurance Policy”) in form and substance reasonably acceptable to the Seller and effective as of the Closing Date. The Purchaser shall pay all of the premium payments, underwriting fees and other applicable Taxes, fees, expenses and surcharges for which the insured is responsible under the R&W Insurance Policy. Prior to the Closing, the Seller shall provide to the Purchaser such cooperation reasonably requested by the Purchaser that is necessary to obtain a R&W Insurance Policy, including by assisting the Purchaser in providing information as may reasonably be requested by any insurance broker or insurance carrier.
Representations and Warranties Insurance. The R&W Insurance Policy shall have been issued and shall be binding and in full force and effect.
Representations and Warranties Insurance. If Parent elects to obtain a representations and warranties insurance policy, the Company shall, and shall cause its officers, directors, employees or agents to, reasonably cooperate with Parent and the insurer and any of their respective Affiliates or representatives in connection with the issuance of the such policy by providing all documents and information reasonably requested by the insurer, its Affiliates or any of its or their respective representatives or required for the issuance of such policy.
Representations and Warranties Insurance. 10.1 Seller warrants and represents to Buyer that it has established procedures for the manufacture and supply of the Product and that all Product sold by Seller pursuant to this Agreement will conform to the quality Specifications set forth in Exhibit A and/or the QAP.
