R&W Insurance. During the Interim Period, Acquiror may (but shall not be required to) obtain a buyer-side representations and warranties insurance policy with respect to the representations and warranties of the Company, in the name of and for the benefit of Pubco (the “R&W Policy”), which the Acquiror shall give the Company and its Representatives a reasonable opportunity to review and must be reasonably satisfactory to the Company. The Company will use commercially reasonable efforts to provide to Acquiror, during the Interim Period, reasonable assistance as is reasonably required so as to permit the binding and issuance of the R&W Policy at or prior to the Closing, including the execution and delivery of such no-claims declarations as is reasonably necessary (with such exceptions as deemed necessary by the Company) in connection with the issuance of the R&W Policy; provided that any such no-claims declaration given by an officer of the Company shall only be required to be given in such individuals’ capacity as an officer of the Company, and not in any individual capacity; provided further that the failure to deliver any no-claims declaration or breach of the covenants set forth in this Section 7.09, shall not constitute a failure of the condition set forth in Section 10.02(b) to be satisfied. If obtained by Acquiror, the R&W Policy shall provide that (i) the insurer or a Person claiming through the insurer shall have no, and shall waive and not pursue any and all, subrogation rights against the Company (including any successor entities) or any of its (including any successor entities) Affiliates (including any Pre-Closing Holder) with respect to any claim made by any insured thereunder (except against such Person to the extent a claim is paid by the insurer under the R&W Policy as a direct result of such Person’s Fraud); (ii) the Company (including any successor entities) is a third-party beneficiary of such waiver with the express right to enforce such waiver; and (iii) no Person shall amend the R&W Policy in a manner adverse to the Company (including any successor entities) or any of its Affiliates (including any Pre-Closing Holder) (including, for the avoidance of doubt, to provide that the insurer or any other Person may bring a claim against the Company (including any successor entity) or its Affiliates (including any Pre-Closing Holder) by way of subrogation (except as a direct result of such Person’s Fraud)), without the Company’s prior written consent. All rea...
R&W Insurance. It is understood and agree that Buyer intends to obtain a buyer-side representations and warranties insurance policy as a source of recovery for any inaccuracies in the representations and warranties of Seller and Lender set forth herein (the “R&W Policy”). From the date of this Agreement until the Closing or the earlier termination of this Agreement pursuant to Section 9.01, Buyer shall use commercially reasonable efforts to obtain a R&W Policy to be effective at or prior to the Closing on terms reasonably acceptable to Buyer. In the event such R&W Policy is obtained at or prior to the Closing, the premium in respect of the R&W Policy shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Seller, and to the extent unpaid by Seller prior to the Closing, Seller’s portion thereof shall be deemed Company Transaction Expenses. Without limitation on the foregoing provisions of this Section 7.12, in the event that such R&W Policy is obtained following the Closing, Buyer shall issue to Lender the Lender Stock R&W Policy Amount within two (2) Business Days of obtaining such R&W Policy; provided, that the obligation set forth in this sentence shall expire on the first anniversary of the Closing Date if no such R&W Policy is obtained by such date. Any such R&W Policy shall include a provision whereby the insurer expressly waives, and agrees not to pursue, directly or indirectly, any subrogation rights against Seller, Lender or their respective Affiliates, or any former or current general or limited partners, stockholders, managers, members, directors, officers, employees, agents and representatives of any of the foregoing with respect to any claim made by any insured thereunder (except for Fraud). No insured party under the R&W Policy shall waive, amend, modify or otherwise revise this subrogation provision, or allow such provision to be waived, amended, modified, or otherwise revised without the prior written consent of Seller and Lender.
R&W Insurance. The Buyer shall have obtained the R&W Insurance Policy (without regard to clauses (ii) and (iii) in the definition thereof); provided that the foregoing condition precedent that the Buyer shall have obtained the R&W Insurance Policy (without regard to clauses (ii) and (iii) in the definition thereof) shall be deemed waived by Company in the event the Company has breached Section 5.12 in any material respect. 56 NY\7370590.17
R&W Insurance. The Buyer has delivered to the Seller a copy of an executed binder or commitment letter, together with all exhibits and schedules and all amendments, supplements and modifications thereto (collectively, the “R&W Insurance Commitment Letter”), pursuant to which the insurer party thereto has agreed to arrange, subject to (and only to) the terms and conditions set forth therein, for the issuance, effective as of the Closing, of a buy-side representation and warranty insurance policy for a coverage amount of $50,000,000 (the “R&W Insurance”). The R&W Insurance Commitment Letter and the R&W Insurance provides that the insurer has no right of subrogation against Seller or any of its Affiliates, and such insurer has waived any such right of subrogation, in each case absent Fraud. The cost of the R&W Insurance shall be borne solely by the Buyer. The R&W Insurance Commitment Letter is in full force and effect as of the date of the Agreement, in accordance with its terms, and constitutes the legal, valid and binding obligation of the Buyer and, to the Knowledge of the Buyer, the other party to the R&W Insurance Commitment Letter, except as may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or other similar laws affecting enforcement of creditors’ rights generally and general equitable principles. Prior to the date of the Agreement, the commitments contained in the R&W Insurance Commitment Letter has not been withdrawn or rescinded in any respect (and, to the Knowledge of the Buyer, no party thereto has indicated an intent to so withdraw or rescind) or otherwise amended or modified in any respect. The Buyer is not in breach of any of the terms or conditions set forth in the R&W Insurance Commitment Letter, in any material respect, and to the Knowledge of the Buyer, no event has occurred that, with or without notice, lapse of time or both, would reasonably be expected to constitute a Material breach by the Buyer or Material failure by the Buyer to satisfy a condition precedent set forth in the R&W Insurance Commitment Letter. The Buyer has fully paid any and all commitment fees or other fees on the dates and to the extent required by the R&W Insurance Commitment Letter.
R&W Insurance. Purchaser may at its option obtain a buyer-side representations and warranties insurance policy naming Purchaser as an insured and providing coverage for certain Losses incurred by Purchaser and its Affiliates related to this Agreement (the “R&W Insurance Policy”). Purchaser acknowledges and agrees that, notwithstanding anything to the contrary contained herein, from and after the Closing, the R&W Insurance Policy (whether or not it is ultimately bound, and whether or not the R&W Insurance Policy is sufficient to cover any Losses of Purchaser or any of its Affiliates) shall be the sole and exclusive remedy of Purchaser and its Affiliates and its and their respective Representatives, successors and assigns of whatever kind and nature, at law, in equity or otherwise, known or unknown, which such Persons have now or may have in the future, resulting from, arising out of, or related to any inaccuracy or breach of any representation or warranty of the Seller contained in this Agreement or the certificates delivered pursuant to Section 8.02, and none of such Persons nor any other Person (including any insurer under the R&W Insurance Policy) shall have any recourse against the Seller or any of its Affiliates with respect thereto. The premium and retention and all other costs and expenses related to the R&W Insurance Policy shall be borne solely by Purchaser. Purchaser shall cause the R&W Insurance Policy to exclude at all times any rights of subrogation against the Seller or any of its Affiliates under this Agreement, except in the case of fraud. Purchaser agrees that, from and after the issuance of the R&W Insurance Policy, without the Seller’s prior written consent (which consent shall be in the sole and absolute discretion of the Seller), it will not amend, modify, terminate or waive any provision of the R&W Insurance Policy in any manner that would permit the insurer under the R&W Insurance Policy to be subrogated (except in the case of Fraud) or that would otherwise reasonably be expected to adversely impact the Seller or any of its Affiliates in any material respect.
R&W Insurance. Purchaser shall maintain the R&W Insurance Policy in full force and effect and shall not modify, amend or waive the R&W Insurance Policy in any manner adverse to Seller, the Selling Subsidiaries or the Transferred Subsidiaries. Purchaser shall promptly notify Seller of any changes to the R&W Insurance Policy. Subject to Section 10.7, Purchaser shall pay the premium and any other fees and expenses payable to the insurer under the R&W Insurance Policy on or prior to Closing.
R&W Insurance. Purchaser has obtained a conditional binder for the R&W Insurance Policy, attached hereto as Exhibit C, and Purchaser acknowledges that a true, correct and complete copy of such conditional binder has been provided to Seller. The R&W Insurance Policy provides that the Insurer shall not be entitled to exercise, and shall waive and not pursue any and all, subrogation rights against Seller except to the extent that Seller committed Fraud; Seller shall be a third party beneficiary of such provision. Except as set forth in the immediately preceding sentence, Seller shall have no liability to the Insurer under the binder or the R&W Insurance Policy. Following the date hereof, Purchaser shall not amend the subrogation provisions, policy term, retention amount or coverage amount of the R&W Insurance Policy in any manner reasonably believed to be adverse to Seller without Seller’s prior written consent. Prior to the Closing, Purchaser shall take all action necessary to obtain and bind as of the Closing, and shall obtain and bind as of the Closing, the R&W Insurance Policy. Purchaser shall pay 100% of the total cost attributable to the placement of the R&W Insurance Policy, including premium, underwriting fees, broker fees and commissions, Taxes and all other fees and expenses related thereto.
R&W Insurance. Acquiror has provided evidence satisfactory to the Company that the R&W Insurance Policy will be bound at signing of this Agreement. Acquiror shall not agree to amend the R&W Insurance Policy in a manner that permits the insurer to pursue any subrogation rights against an Indemnified Person or any holder of Units, other than as permitted pursuant to 8(a) of the R&W Insurance Policy. Acquiror shall pay, or cause to be paid when due, the premiums, the mitigation loss fee, and the surplus line Taxes payable in connection with the R&W Insurance Policy, whether due prior to or after the Effective Time.
R&W Insurance. At its election, on or prior to the Closing, Buyer may procure a buyer-side representation and warranty insurance policy (the “R&W Insurance Policy”) the cost of the premium of which will be borne fifty percent (50%) by Buyer and fifty percent (50%) by Seller. Seller’s portion of the cost of such premium shall be treated as a Transaction Expense. Any such R&W Insurance Policy shall include a provision whereby the insurer under the R&W Insurance Policy expressly waives, and agrees not to pursue, directly or indirectly, any subrogation rights against Seller or its Affiliates or any former or current equityholder(s), managers, members, directors, officers, employees, agents or representatives of Seller or its Affiliates in connection with this Agreement and the transactions contemplated hereby with respect to any claim made by an insured thereunder, except in the case of Fraud by any such Person in connection with this Agreement. Buyer shall not waive, amend or modify such subrogation provision, or allow such subrogation provision to be waived, amended or modified, without the prior written consent of Seller.
R&W Insurance. Buyer agrees to not seek to make, enter into or consent to, any amendment to the R&W Insurance following the Closing without the Shareholders’ Representative’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, except for ordinary course amendments that do not adversely affect Sellers’ rights under this Agreement.
