Common use of R&W Insurance Policy Clause in Contracts

R&W Insurance Policy. In the event Parent or any of its Affiliates obtains a representations and warranties insurance policy in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the issuance of the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion).

R&W Insurance Policy. In Prior to or concurrently with the event Parent or any execution of its Affiliates obtains this Agreement, Purchaser shall cause to be bound and incepted a representations and warranties insurance policy in respect (a copy of which Purchaser shall have provided Seller prior to the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement execution thereof) (such policy, a the “R&W Insurance Policy”). Purchaser shall pay, then (a) the payment of or cause to be paid, the premium (inclusive and all other costs required for issuance of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (Policy. Following the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the final issuance of the R&W Insurance Policy, with fifty percent (50%) Purchaser agrees to use reasonable best efforts to keep the R&W Insurance Policy in full force and effect for the policy period set forth therein. Upon its final issuance, Purchaser shall deliver a copy of the R&W Insurance Policy Premium being borne to Seller. The Parties acknowledge that Purchaser obtaining the R&W Insurance Policy is a material inducement to Seller entering into the transactions contemplated by this Agreement, and Seller is relying on Purchaser’s covenants and obligations set forth in this Section 5.10. The R&W Insurance Policy shall include a provision whereby the Company as a Transaction Expenseinsurer expressly waives, andand irrevocably agrees not to pursue, for directly or indirectly, any subrogation rights against Seller or any of its Affiliates, or any former shareholders, managers, members, directors, officers and employees of any of the foregoing with respect to any claim made by any insured thereunder, which waiver Seller may enforce directly against the insurer of the R&W Insurance Policy, other than in the event of Actual Fraud. Purchaser shall not waive, amend, modify or otherwise revise this subrogation provision under the R&W Insurance Policy, or allow such provision to be waived, amended, modified or otherwise revised by any other Person, in each case, without Seller’s prior written consent, which Seller may grant or withhold in its sole discretion. For the avoidance of doubt, in no event shall Seller’s obligations or liability under Article VII be expanded or increased as a result of any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely failure by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder Purchaser or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing a representation and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or warranty insurance policy or, if obtained, any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)terms or conditions thereof.

R&W Insurance Policy. In At or prior to the event date hereof, Parent or any of its Affiliates obtains shall deliver to the Company and Newtek a conditionally bound binder agreement, evidencing a commitment to issue the representations and warranties insurance policy attached thereto, substantially in respect the form set forth on Exhibit J hereto, together with evidence of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by for the R&W Insurance Policy and all other fees, costs, expenses and Taxes associated therewith, and evidence of the satisfaction of or of the intent to satisfy all other conditions to the final binding of the Policy. The Company shall cooperate with Parent’s reasonable efforts at Parent’s written request and provide such commercially reasonable assistance as may be paid (reasonably necessary or appropriate in order to enable Parent to obtain and bind the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with Insurance Policy. During the issuance term of the R&W Insurance Policy, with fifty percent Parent (50%i) shall (and shall cause its Affiliates, including the Surviving Entity, to) maintain the R&W Insurance Policy in full force and effect and (ii) shall not (and shall cause its Affiliates, including the Surviving Entity, to not) (A) amend, modify, terminate, or waive any waiver of subrogation set forth in the R&W Insurance Policy without the prior written consent of Newtek, (B) take any action or omit to take any action that would result in the cancellation, termination, amendment or modification of the R&W Insurance Policy Premium being borne or coverage thereunder other than by payment of claims thereunder, (C) permit the assignment, substitution or transfer of the rights or obligations of the insurer under the R&W Insurance Policy other than as allowed by the Company as a Transaction Expense, and, for terms of the avoidance R&W Insurance Policy. The Parties hereto acknowledge and agree that the failure by Parent to obtain the R&W Insurance Policy by the Closing and/or to maintain the R&W Insurance Policy in accordance with this Section 7.25 shall not in any manner increase the liability of doubt, any other costs incurred or due following Newtek otherwise applicable under the Effective Time relating provisions in Article X hereof. The cost to obtain the R&W Insurance Policy shall be borne solely equally by Parent Newtek and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion).Parent. 63

R&W Insurance Policy. In the event Parent or any of its Affiliates obtains a representations and warranties insurance policy in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “The R&W Insurance Policy”), then Policy shall provide that (a) the payment insurer thereunder shall have no subrogation rights against any Company Stockholders except, in the case of a Company Stockholder, liabilities, losses, damages, claims, costs and expenses arising out of Fraud by such Company Stockholder (the premium (inclusive of commissions, surplus lines or premium taxes“Subrogation Provision”) and underwriting fees required by (b) the Company Stockholders and their respective Affiliates are express third-party beneficiaries of the R&W Insurance Policy with respect to be paid the matters set forth in clause (a). Each of Parent and the “R&W Policy Premium”) Company shall be paid by Parent at or following Closing in connection with the issuance of the R&W Insurance Policy, with bear fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance costs of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) retention amount of such R&W Insurance Policy Policy. At Closing (or following Closing in accordance with the terms of the binder agreement), Parent shall not provide for any “seller retention” (as such phrase is commonly used in pay or cause to be paid, all costs and expenses to bind the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims Policy, including, the total premium, underwriting costs, brokerage commission, due diligence fees, Taxes related to such policy and other fees and expenses of subrogation, contribution, assignment, or otherwise, against such policy as required by the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or insurer and the functional equivalent of any such position) of binder agreement. Parent covenants and agrees to not amend the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified Subrogation Provision in any manner adverse to the Stockholder Company Stockholders without the Representative’s consent, provided that the foregoing shall not be interpreted to in any way limit Parent’s right to pursue claims, handle claims, or otherwise exercise any rights afforded to Parent under the R&W Insurance Policy, all of which remain at Parent’s sole discretion. Parent will not, and will cause its Affiliates to not amend, waive or otherwise modify the R&W Insurance Policy in any manner that would allow the insurer or any other Person to, except in the case of Fraud by the other persons listed Company or a Company Stockholder in clause (c) the making of representations and warranties in this Section 6.10Agreement, without make or bring any action or proceedings against any Company Stockholder’s prior written consent (which consent may be withheld in its sole discretion).

R&W Insurance Policy. In the event Parent Buyer or any of its Affiliates obtains elects to obtain a representations and warranties insurance policy in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissionsall premiums, surplus lines or premium taxes) underwriting fees, brokers’ commissions and underwriting fees required by the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the issuance of the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating and expenses related to the such R&W Insurance Policy shall be borne solely 100% by Parent and its Affiliates (including the Surviving Company after the Mergers); Buyer or such Affiliate, (b) such Buyer shall provide the Seller a reasonable opportunity to review the R&W Insurance Policy shall not and provide for any “seller retention” (as such phrase is commonly used reasonable comments in the representations and warranties insurance policy industry); advance of binding coverage, (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) subrogation (except in the case of Fraud); ) with respect to the making of the representations and warranties contained in Article III or Article IV of this Agreement, any other Transaction Document to which Seller is or will at the Closing be party or any certificate delivered by Seller pursuant to this Agreement or any Transaction Document against Seller, (d) Seller shall be an intended third party beneficiary of the Stockholder shallR&W Insurance Policy, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and (e) none of Buyer or any of its Affiliates shall amend, waive, modify or otherwise revise the R&W Insurance Policy in any manner inconsistent with the foregoing without Seller’s prior written consent. Notwithstanding anything to the contrary in this Agreement, should Buyer or its Affiliates acquire an R&W Insurance Policy, none of the Seller nor any of its Affiliates nor its and provide assistance as reasonably required their respective past, present or future equityholders, members, directors, officers, employees or agents, shall be entitled to obtain any proceeds from such R&W Insurance Policy prior to Closing and (e) without the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)of Buyer.

R&W Insurance Policy. In Seller and the event Parent Company shall cooperate with Purchaser’s efforts and provide assistance as reasonably requested by Purchaser to obtain and bind the R&W Insurance Policy. Prior to or at the Closing, Purchaser shall pay or cause to be paid, all costs and expenses related to the R&W Insurance Policy, including the total premium, underwriting costs, brokerage commissions, and other fees and expenses of such policy; provided, that Seller shall pay or cause to be paid fifty (50) percent of the premium, costs, commissions and other fees and expenses of the R&W Insurance Policy, which amount shall be characterized as a Transaction Expense. Purchaser agrees (on behalf of itself and each of its Affiliates) that (a) none of Seller Representative, any Seller Party, any of their respective Affiliates or any of their respective directors, managers, members, officers, employees or other Representatives shall have any liability whatsoever for or under the R&W Insurance Policy (including for any premiums or other amounts payable in respect thereof except as set forth above) other than the R&W Insurer’s subrogation rights with respect to Fraud; (b) the R&W Insurance Policy shall at all times provide that the R&W Insurer (i) waives and agrees not to pursue, directly or indirectly, any subrogation rights against any of Seller Representative, any Seller Party, any of their respective Affiliates or any of their respective directors, managers, members, officers, trustees, beneficiaries, settlors, employees or other Representatives other than for Fraud and (ii) agrees that none of Purchaser or any of its Affiliates obtains a representations and warranties insurance policy in respect shall have any obligation to pursue any claim against Seller Representative, any Seller Party, any of the representations and warranties contained in this Agreement their respective Affiliates or in any certificate of their respective directors, managers, members, officers, trustees, beneficiaries, settlors, employees or other instrument contemplated by or delivered in connection with this Agreement Representatives other than for Fraud and (such policy, a “c) the absence of coverage under the R&W Insurance Policy”)Policy for any reason, then (a) including due to exclusions from coverage thereunder or the payment failure of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (in full force and effect for any reason, shall not expand, alter, amend, change or otherwise affect the “R&W Policy Premium”) shall be paid by Parent at liability of Seller Representative, any Seller Party, any of their respective Affiliates or following Closing any of their respective directors, managers, members, officers, trustees, beneficiaries, settlors, employees or other Representatives under this Agreement except as otherwise explicitly stated herein in connection with the issuance Article IX. In furtherance of the R&W Insurance Policyforegoing, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction ExpensePurchaser shall not, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy and shall be borne solely by Parent and cause its Affiliates (including the Surviving Company after Closing) not to, assert any claim in violation of the Mergers); (b) such agreements of Purchaser in the foregoing provisions of this Section 6.05. Purchaser agrees to not amend the R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used following the Closing in a manner that would materially and adversely affect the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, rights or otherwise, against increase the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) obligations of the Stockholder or its Affiliates) (except Seller Parties set forth in this Agreement without the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent of the Seller Representative (which such consent may not to be withheld in its sole discretionunreasonably withheld, conditioned or delayed).

R&W Insurance Policy. In the event Parent (a) The Parties acknowledge that each Party (or any of its Affiliates obtains a representations Affliate) may have obtained and warranties bound one or more representation and warranty insurance policy in policies with respect of to the representations and warranties contained set forth in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement Article III and Article IV respectively, including excess policies (such policy, each a “R&W Insurance Policy”). Except as provided in any other agreements entered into by the parties hereto as of the date of this Agreement or in the case of Fraud, then none of the Parties or any their Affiliates shall have any Liability or obligation to indemnify or compensate the other Party or any other Person for any Losses arising out of or related to breaches of the representations and warranties set forth in Article III or Article IV, regardless of whether the other Party maintains a R&W Insurance Policy, or whether the terms thereof do not provide coverage for any specific type or category of claims or losses, or to the extent the issuer or underwriter of such policy terminates the same or does not for any reason accept or pay any claims made thereunder. Each Party acknowledges and agrees that (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (it or its Affiliate has obtained shall at all times include a customary provision whereby the “R&W Policy Premium”) insurer expressly agrees that the insurer shall be paid by Parent at or following Closing in connection with the issuance of the R&W Insurance Policyhave no, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims and all, right of subrogation, contribution, assignment, or otherwise, subrogation against the Stockholder or its Affiliates (other Party or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) Representatives (except in the case of Fraud); ) (dthe “R&W Subrogation Waiver”) the Stockholder shalland (b) such Party or any of its Affiliates shall not, and shall cause the Company insured not to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain waive, amend, modify or otherwise revise any R&W Subrogation Waiver or allow such R&W Insurance Policy prior Subrogation Waiver to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended waived, amended, modified, or otherwise modified revised in any manner adverse to the Stockholder such other Party or any of its Affiliates. All costs and expenses related to a R&W Insurance Policy, including the total premium, underwriting costs, diligence costs, brokerage commission, Taxes related to such policy and other persons listed related fees and expenses payable to the applicable insurance provider or broker (collectively, the “R&W Costs”), shall be borne fifty percent (50%) by Hakkasan Parent and fifty percent (50%) by TAO. In order to effect the allocation of the R&W Costs between the Parties as set forth in clause (cthis Section 7.2, prior to the Closing Hakkasan Parent and TAO have exchanged their R&W Insurance Policies and agreed that $402,922.97 of the amount included in the Hakkasan Parent Required Payments shall be paid to TAO by a disproportionate distribution to TAO in accordance with Section 2.1(f) of the Amended and Restated LLC Agreement to satisfy 100% of Hakkasan Parent’s obligation to TAO pursuant to this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)7.2 such that 50% of the sum of the R&W Costs of both Parties is borne by Hakkasan Parent and 50% of such costs is borne by TAO.

R&W Insurance Policy. In Investor shall have the event Parent or any of its Affiliates obtains right (but not the obligation) to obtain a representations buyer-side representation and warranties warranty insurance policy in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered issued to Investor in connection with this Agreement the transactions contemplated by the Transaction Agreements (such policy, a “R&W Insurance Policy”). The Company shall, then (a) at no material cost or liability to the payment of the premium (inclusive of commissionsCompany, surplus lines or premium taxes) reasonably cooperate with Investor’s efforts, and underwriting fees required provide assistance as reasonably requested by the R&W Insurance Policy Investor, to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the issuance of obtain and bind the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the . The R&W Insurance Policy shall be borne solely by Parent provide that the insurer may not seek to or enforce, and to the fullest extent waives, any subrogation rights it might have against the Company or any of its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignmentAffiliates, or otherwiseany past, against the Stockholder present or its Affiliates (or any future direct or indirect past or present parent, shareholder, member, director, officer, attorney, partner, stockholder, employee, director or officer third-party counsel, financial advisor, auditor (or the functional equivalent of any such position) ), agent or other representative of any of the Stockholder foregoing, arising out of, as a result of, or its Affiliates) (related to this Agreement, or the negotiation, execution or performance of this Agreement, except in the case of Fraud); Fraud (ddefined below) the Stockholder shallby such party. Additionally, and without limiting the generality of the foregoing, Investor agrees that any rights of any issuer of the R&W Insurance Policy, including any rights of subrogation, shall cause not affect, expand or increase any liability or obligation of the Company toin connection with this Agreement or the transactions contemplated by the Transaction Agreements. After Closing, use commercially reasonable efforts to cooperate with Parent Investor and its Affiliates shall not amend, permit to be amended, waive or otherwise modify the R&W Insurance Policy in any manner that is or could reasonably be expected to be material and provide assistance as reasonably adverse to the Company, without the Company’s prior written consent, in each instance. The covenants in this Section 7(c) shall survive the Closing without termination. At the Closing, Investor shall deliver to the Company, if obtained by Investor, a copy of the binder for any R&W Insurance Policy (it being understood that Investor is not required to obtain such any R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) Policy). For purposes of this Section 6.10 may not be amended or otherwise modified Agreement, “Fraud” means an actual and intentional fraud under Delaware law with the specific intent to deceive and mislead a party to this Agreement with respect to any material statement in any manner adverse to the Stockholder representation or warranty by such party set forth in this Agreement or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)Transaction Agreement.

R&W Insurance Policy. In Parent shall use commercially reasonable efforts to, prior to the Closing, obtain a R&W Insurance Policy for the benefit of Parent on terms and conditions reasonably acceptable to the Company; provided that, if the Company and Parent shall agree in writing, no R&W Insurance Policy shall be obtained. If and to the extent the parties determine that Parent shall obtain a R&W Insurance Policy, Parent shall take all commercially reasonable actions necessary to complete the conditions in the conditional binder to such R&W Insurance Policy within the times set forth therein so that Euclid Transactional, LLC or such other insurer as shall be agreed between the parties (the “R&W Insurer”) will issue the R&W Insurance Policy, including, prior to or after the Closing and within the times set forth in such conditional binder, the payment of any premium owed in connection with the R&W Insurance Policy, delivery of the required Closing No Claims Declaration (as defined in the R&W Insurance Policy), and delivery of copies of this Agreement and the documents contemplated hereby. If and to the extent the parties determine that Parent shall obtain a R&W Insurance Policy, such R&W Insurance Policy shall provide (unless otherwise agreed between the parties in writing) that: (a) none of Parent, Parent’s stockholders, the Company, the Company Stockholders, the Stockholder Representative or their respective Affiliates or Representatives shall be liable to the insurer under the R&W Insurance Policy for subrogation claims pursuant to the R&W Insurance Policy, other than in the event Parent or any of its Affiliates obtains a representations and warranties insurance policy intentional fraud in respect the making of the representations and warranties contained in this Agreement by such Persons; (b) the R&W Insurer may not seek to enforce, or enforce, any subrogation rights it might have against Parent, Parent’s stockholders, the Company, the Company Stockholders, the Stockholder Representative or their respective Affiliates or Representatives, except in any certificate or other instrument contemplated by or delivered the case of intentional fraud in connection with the making of the representations and warranties in this Agreement by such Persons; and (such policyc) Parent is not obligated to bring any claim against the Company, the Company Stockholders or the Stockholder Representative prior to bringing a “claim against the R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by Parent covenants and agrees that the R&W Insurance Policy will include a waiver of subrogation claims against the Company, the Company Stockholders and the Stockholder Representative, other than in the event of intentional fraud in the making of the representations and warranties in this Agreement by such Person. Following the Closing, any R&W Insurance Policy obtained pursuant to this Section 7.17 may not be paid amended in any manner adverse to Parent, Parent’s stockholders, the Company, the Company Stockholders or the Stockholder Representative (including with respect to the “R&W Policy Premium”) subrogation provisions, policy term, retention amount or coverage amount), and neither Parent nor any of its Affiliates shall be paid by Parent at or following Closing in connection with cause the issuance cancellation of the R&W Insurance Policy, with fifty percent (50%) of without the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent of Stockholder Representative and Sponsor (which consent may consents shall not be unreasonably conditioned, withheld in its sole discretionor delayed).

R&W Insurance Policy. In Prior to the event Parent or any of its Affiliates obtains Closing, TKO shall have obtained and delivered to the EDR Parties a representations and warranties insurance policy in respect of policy(ies) (the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then which must contain a provision which expressly states that the insurer(s) agrees to waive all subrogation rights against the EDR Parties and their respective Affiliates except in the case of Fraud by such EDR Party or Affiliate (a) of which specific provision the payment of the premium (inclusive of commissionsEDR Parties are expressly made third party beneficiaries), surplus lines or premium taxes) and underwriting fees required by shall maintain the R&W Insurance Policy to be paid in full force and effect from and after the Closing (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the issuance of the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, andnoting, for the avoidance of doubt, that the foregoing shall not be interpreted to limit the TKO Parties’ right to make, adjust, negotiate or settle claims under the R&W Insurance Policy) and shall not (and shall cause their Affiliates to not) amend, modify, terminate or waive any other costs incurred waiver of subrogation applicable to the EDR Parties or any of their Affiliates set forth in the R&W Insurance Policy, in each case in a manner adverse to the EDR Parties or any of their Affiliates, without the prior written consent of the EDR Parties. The cost of the premiums together with all Taxes and application, underwriting, due following the Effective Time relating to diligence or similar fees or expenses in connection with the R&W Insurance Policy shall be borne solely paid by Parent the TKO Parties. From and its Affiliates (including the Surviving Company after the Mergers); (b) such Closing, the R&W Insurance Policy shall not provide will serve as the TKO Parties’ and their Affiliates’ sole recourse for breaches of any “seller retention” (as such phrase is commonly used in representation or warranty of the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (EDR Parties or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except Transferred Entities set forth in Article III, other than in the case of Fraud); (d) the Stockholder shall, and Fraud or as otherwise expressly set forth herein. The EDR Parties shall cause the Company to, use commercially reasonable best efforts to cooperate with Parent reasonable requests from TKO and its Affiliates and provide assistance as reasonably required Representatives with respect to obtain such TKO’s obtainment of the R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)Policy.

R&W Insurance Policy. In Prior to or simultaneously with the event execution and delivery of this Agreement, Parent or any of its Affiliates obtains a representations shall cause to be bound and warranties insurance policy in respect full force and effect as of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policyDate, a “the R&W Insurance Policy”), then (a) and take the payment of actions necessary to commence coverage under the premium (inclusive of commissionsR&W Insurance Policy, surplus lines or premium taxes) including executing and underwriting fees required by using commercially reasonable efforts to cause to be executed and delivered all documents attached to the R&W Insurance Policy and taking all other actions necessary or as otherwise may be required in connection with (a) binding coverage under the terms of the R&W Insurance Policy on the Agreement Date and (b) issuing the final R&W Insurance Policy. Such R&W Insurance Policy shall provide for (i) a retention of no more than one percent (1%) of the Initial Merger Consideration, (ii) a coverage limitation of at least ten percent (10%) of the Initial Merger Consideration, and (iii) a provision providing that the insurer shall waive and have no rights of subrogation against any party to be paid (this Agreement or any Representative thereof, except against an Indemnifying Securityholder solely in the “R&W Policy Premium”) shall be paid by Parent at or following Closing case of that such Indemnifying Securityholder committed Fraud in connection with the issuance Merger (the “Specified Terms”). Parent shall pay and be responsible for any and all premium, underwriting fees, brokerage fees, legal fees for counsel engaged by the insurer of the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, surplus lines tax and any other costs incurred or due following the Effective Time relating to and expenses associated with obtaining the R&W Insurance Policy shall be borne solely by and binding coverage thereunder and set forth in invoice(s) from the insurer in respect thereof. Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly amend or waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except Specified Terms in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any a manner adverse to the Stockholder or any of Company Securityholders without the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which of, prior to the Closing, the Company, and after the Closing, the Securityholder Representative, such consent may not to be unreasonably withheld in its sole discretion)or delayed.

R&W Insurance Policy. In On or before the event date hereof, Parent or any of its Affiliates obtains a representations and warranties insurance policy in respect of shall deposit with the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) Insurer the payment portion of the premium (inclusive required under the terms of commissions, surplus lines or premium taxes) the R&W Insurance Policy in order to bind the Insurer as of the date hereof and underwriting fees required by take any other actions necessary to cause the R&W Insurance Policy to incept as of the date hereof. Parent shall cause the R&W Insurance Policy to be paid (issued promptly after the “R&W Policy Premium”) Closing and shall pay, or cause to be paid by Parent at or following Closing in connection with the issuance of paid, all costs and expenses related to the R&W Insurance Policy, with fifty percent . The R&W Insurance Policy shall be on customary terms and conditions (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, andincluding, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) , the Stockholder shallInsurer expressly waiving, and shall cause agreeing not to pursue, directly or indirectly, any subrogation rights against the Company toGroup Companies, use commercially reasonable efforts any Seller or any Seller’s equityholders with respect to cooperate with any claim made by any insured thereunder). Parent covenants and agrees to not cancel, redeem or take any action that would result in the termination of the R&W Insurance Policy. Parent and its Affiliates and provide assistance as reasonably required to obtain such will not amend, waive or otherwise modify the R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to that would allow the Stockholder insurer thereunder or any other Person to, except in the case of Fraud, subrogate or otherwise make or bring any action or proceedings against any Seller, any Seller’s equityholders, any Group Company or any of its Affiliates or any past, present or future director, manager, officer, employee or advisor of any Seller or Group Company based upon, arising out of, or related to this Agreement, or the other persons listed in clause (c) negotiation, execution or performance of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)Agreement.

R&W Insurance Policy. In During the event Parent or any of its Affiliates obtains a representations and warranties insurance policy in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the issuance term of the R&W Insurance Policy, with fifty percent Purchaser will (50%and will cause its Affiliates to) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to cause the R&W Insurance Policy shall be borne solely by Parent to remain in full force and its Affiliates effect, including (including a) complying with and maintaining the Surviving Company after the Mergers); R&W Insurance Policy in full force and effect, (b) such paying when due all premiums, commissions, fees, costs and Taxes payable thereunder and (c) satisfying on a timely basis all conditions necessary for the issuance of or continuance of coverage under the R&W Insurance Policy. Purchaser will use best efforts to ensure the R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in expressly provides that the representations and warranties insurance policy industry); (c) such insurer of the R&W Insurance Policy shall expressly waive any claims of (the “R&W Insurer”) irrevocably waives all subrogation, contributioncontribution and similar rights, assignmentand will not pursue any claim against any Seller or any of their Affiliates, or otherwiseany of their respective former, against the Stockholder or its Affiliates (or any current and future direct or indirect past representatives, employees, officers, directors, financing sources, management companies, partners, members, equity holders, controlling or present shareholdercontrolled persons, member, partner, stockholder, employee, director successors or officer (or the functional equivalent assigns of any such position) of the Stockholder or its Affiliatesforegoing (collectively, the “Seller Related Parties”) (except other than in the case of Fraud (and only then with respect to the Seller Related Party committing such Fraud); ) and (dii) each of the Stockholder shall, and shall cause Seller Related Parties are third-party beneficiaries of the Company to, use commercially reasonable efforts R&W Insurer’s promise to cooperate with Parent not pursue any claim against the Seller Related Parties. Purchaser and its Affiliates and provide assistance as reasonably required to obtain such will not terminate, cancel, amend, waive or otherwise modify the limitations on subrogation against the Seller Related Parties, the third party beneficiary language or the amendment provisions contained in the R&W Insurance Policy or otherwise amend the R&W Insurance Policy in such a manner that would increase the potential financial liability of the Seller Related Parties in connection with this Agreement prior to Closing and (e) to, at or at any time after the subrogation waiver described Closing, in clause (c) each case, without Sellers’ Representative’s prior written consent. The provisions of this Section 6.10 may not 6.12 are intended to be amended or otherwise modified in any manner adverse to for the Stockholder or any benefit of, and enforceable by, each of the other persons listed in clause (c) of this Section 6.10Seller Related Parties and such Seller Related Parties’ estates, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)heirs, representatives, successors and assigns.

R&W Insurance Policy. In Following the event execution of this Agreement, Parent or any of its Affiliates obtains a representations and warranties insurance policy shall satisfy the conditions set forth in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by Conditional Binder to cause the R&W Insurance Policy to be paid issued on terms and in the form set forth in the R&W Conditional Binder as soon as practicable following Closing. Parent shall cause the R&W Insurance Policy to (a) name the “R&W Policy Premium”Parent as the insured, (b) insure the Parent from any breach, or any failure to be true, of the representations and warranties given by Company to Parent under this Agreement or any certificate delivered pursuant hereto and (c) expressly provide that the insurer(s) issuing such policy shall be paid waive or otherwise not pursue any rights to bring any claim by Parent at way of subrogation, contribution or following Closing otherwise against the Company, the Seller Representative, any Shareholder or any of their respective Affiliates and/or any of their respective Representatives, except in connection the case of Fraud by such Person, as applicable, with the applicable insurer expressly agreeing that the Fraud of one Person shall not be imputed to any other Person(s) and such Persons are express third party beneficiaries to such waiver of subrogation. Notwithstanding the foregoing, for the avoidance of doubt, the Parties acknowledge and agree that the obtaining of the R&W Insurance Policy is not a condition to the Closing, and Parent shall remain obligated, subject only to the satisfaction or waiver of the conditions set forth in Sections 6.1 and 6.2, to consummate the transactions contemplated by this Agreement. From and after the date hereof, Parent shall not (and shall cause its Affiliates to not) grant any right of subrogation or contribution or otherwise amend, modify, terminate, or waive any term or condition of the R&W Insurance Policy in a manner inconsistent with the immediately preceding sentence. The Company shall reasonably cooperate with Xxxxxx’s efforts and provide assistance as reasonably requested by Xxxxxx to obtain and bind the R&W Insurance Policy. Prior to Closing, Parent shall pay or cause to be paid, all costs and expenses related to the R&W Insurance Policy, including the total premium, underwriting costs, taxes, brokerage commission, and other fees and expenses of such policy. From and after issuance of the R&W Insurance Policy, with fifty percent (50%) Parent shall not amend, modify, or otherwise change, terminate, or waive any provision of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any a manner adverse to the Stockholder Company, Seller Representative, any Shareholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)their respective Affiliates.

R&W Insurance Policy. In Prior to and after the event Parent or Closing, Buyer shall take all commercially reasonable actions necessary to complete the conditions in the R&W Insurance Policy. Buyer acknowledges and agrees that any R&W Insurance Policy shall at all times provide that the insurer shall have no, and shall waive and not pursue any and all, subrogation rights against the Sellers (except in the case of its Affiliates obtains a representations and warranties insurance policy in fraud by the Sellers (under Delaware law) with respect of to the representations and warranties contained set forth in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”Article 3), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by . Buyer shall maintain the R&W Insurance Policy in full force and effect after the Closing Date and shall not, and shall cause its Affiliates not to, amend, modify or otherwise change, terminate or waive any provision of the R&W Insurance Policy (i) with respect to the waiver of subrogation set forth therein or (ii) in any manner that would reasonably be expected to increase or expand the ability or rights of the insurer thereunder to bring an action against, or otherwise seek recourse from, the Sellers or any of their respective Affiliates. Buyer is solely responsible for any and all costs, expenses or other payments related to the R&W Insurance Policy and, prior to and after the Closing, as applicable, Buyer shall pay or cause to be paid (paid, all costs and expenses related to the “R&W Insurance Policy, including the total premium, underwriting costs, brokerage commissions and Taxes related to such policy, any retention amounts, and all other fees and expenses associated with such policy. Notwithstanding anything to the contrary herein, neither any revocation, waiver, cancellation or modification of the R&W Insurance Policy Premium”) shall be paid after the Closing Date, nor any inability of, nor any denial by Parent at or following Closing in connection with the issuance provider of the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne to pay any Losses contemplated by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy Policy, shall be borne solely by Parent and its Affiliates (including result in liability under Article 9 to the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase Sellers which is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) excess of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any liability of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)Sellers contemplated under Article 9.

R&W Insurance Policy. In Prior to or concurrently with the event execution of this Agreement, Parent or any of its Affiliates obtains shall cause to be issued a representations and warranties insurance policy in respect (a copy of which Parent shall have provided the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement Company prior to the execution thereof) (such policy, a the “R&W Insurance Policy”). Each of Parent and the Company shall pay, then (a) the payment or cause to be paid, 50% of the premium (inclusive required for the issuance of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with Policy. Following the issuance of the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating Parent agrees to use reasonable best efforts to keep the R&W Insurance Policy in full force and effect for the policy period set forth therein. Upon its issuance, Parent shall be borne solely by deliver the R&W Insurance Policy to the Company. The parties hereto acknowledge that Parent obtaining the R&W Insurance Policy is a material inducement to the Company entering into the Transactions, and its Affiliates (including the Surviving Company after the Mergers); (b) such is relying on Parent’s covenants and obligations set forth in this Section 5.18. The R&W Insurance Policy shall include a provision whereby the insurer expressly waives, and irrevocably agrees not provide for to pursue, directly or indirectly, any “seller retention” subrogation rights against the Company or any of its Affiliates, or any former shareholders, managers, members, directors, officers and partner (as or the functional equivalent of any such phrase is commonly used position) of any of the foregoing with respect to any claim made by any insured thereunder, which waiver the Company may enforce directly against the insurer of the R&W Insurance Policy, other than in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims event of subrogation, contribution, assignment, fraud by the Stockholders or otherwise, against Equity Incentive Holders or on the Stockholder or its Affiliates (part of the Company or any direct or indirect past or present former shareholder, member, partnerdirector, stockholder, employee, director officer or officer partner (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except Company in the case respect of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the representations set forth in Article III. Parent shall not waive, amend, modify or otherwise revise this subrogation provision under the R&W Insurance Policy, or allow such provision to be waived, amended, modified or otherwise revised by any other persons listed Person, in clause (c) of this Section 6.10each case, without Stockholderthe Company’s (or after the Closing, the Equityholder Representative’s) prior written consent consent, which the Company (which consent or after the Closing, the Equityholder Representative) may be withheld grant or withhold in its sole discretion). In the event that the Closing does not occur within the twelve (12) months following the date of this Agreement, and the conditions in Article VI still have the ability to be satisfied prior to the Outside Date, Parent shall procure a replacement representations and warranties insurance policy on substantially the same terms as the R&W Insurance Policy and that is, in the aggregate, no less favorable to the Company.

R&W Insurance Policy. In the event Parent or any of its Affiliates obtains If Buyer elects to obtain a representations and warranties insurance policy in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then Buyer (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by shall cause the R&W Insurance Policy to be paid expressly provide that the insurer or carrier shall not directly or indirectly pursue any subrogation rights against Seller or its Affiliates, and/or any of the Non-Recourse Parties, except for a claim solely against Seller with respect to Fraud (the “R&W Policy PremiumSubrogation Waiver”) shall be paid by Parent at or following Closing in connection with the issuance of the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase amend, modify, terminate or waive the R&W Subrogation Waiver in a manner which is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder adverse to Seller or its Affiliates) (except in , and/or any of the case of Fraud); (d) the Stockholder Non-Recourse Parties. The Acquired Companies shall, and shall cause the Company its Representatives to, use commercially reasonable efforts to reasonably cooperate with Parent Buyer, execute and its Affiliates deliver such documents and provide assistance take such actions as Buyer may reasonably required request in order to enable Buyer to obtain any R&W Insurance Policy; provided that (i) such requested cooperation shall not unreasonably disrupt or interfere with the business or the operations of the Acquired Companies, and (ii) nothing in sentence shall require cooperation to the extent that such cooperation would (A) require the execution by Seller or the Acquired Companies or any of their respective employees, officers, directors or managers of a “no claims declaration” or similar document, (B) cause any breach of this Agreement or cause any condition to the Closing to not be satisfied, (C) require the Acquired Companies or Seller to pay any premium or incur other fees or expense or (D) obligate the Acquired Companies to provide any information that would violate any obligations of confidentiality or result in a violation of Law or loss of any privilege. Notwithstanding any provision contained herein to the contrary, Xxxxx’s obtaining and binding of a R&W Insurance Policy prior pursuant to Closing the terms and (e) the subrogation waiver described in clause (c) of this Section 6.10 may conditions hereof shall not be, and shall not be amended or otherwise modified in any manner adverse deemed, to be a condition to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)Closing.

R&W Insurance Policy. In Prior to, concurrently with or promptly following the event execution of this Agreement, Purchaser Parent or any of its Affiliates obtains shall cause to be bound and incepted a representations and warranties insurance policy in respect of (the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) the payment . Upon satisfaction of the applicable conditions in the conditional binder, Purchaser Parent shall pay, or cause to be paid, the premium (inclusive and all other costs required for issuance of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or promptly following Closing in connection the Closing. The R&W Insurance Policy shall include a provision whereby the insurer expressly waives, and irrevocably agrees not to pursue, directly or indirectly, any subrogation rights against Parent or any of its Affiliates, or any former shareholders, managers, members, directors, officers and employees of any of the foregoing with respect to any claim made by any insured thereunder, which waiver Parent may enforce directly against the issuance insurer of the R&W Insurance Policy, with fifty percent (50%) other than in the event of Fraud on the part of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance Sellers in respect of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in of the representations and warranties insurance policy industry); (c) such R&W Insurance Policy set forth in Article 3. Purchaser Parent shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shallnot, and shall cause the Company Purchasing Entities not to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such waive, amend, modify or otherwise revise this subrogation provision under the R&W Insurance Policy prior Policy, or allow such provision to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended waived, amended, modified or otherwise modified revised by any other Person, in any manner adverse to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10each case, without StockholderParent’s prior written consent (consent, which consent Parent may be withheld grant or withhold in its sole discretion). Parent shall provide such cooperation as is customary and reasonably requested by Purchaser Parent in connection with Purchaser Parent’s efforts to obtain the R&W Insurance Policy.

R&W Insurance Policy. In Bxxxx agrees that the event Parent R&W Insurance Policy shall provide that (a) the R&W Insurer shall irrevocably waive and not pursue, directly or indirectly, any claims against Seller or any of its Affiliates obtains a representations or Representatives (by way of subrogation, claim for contribution or otherwise) with respect to any claim made by any insured thereunder, other than claims for Fraud and warranties insurance policy in respect only to the extent of the representations such Fraud, and warranties contained in this Agreement (b) Seller and its Affiliates or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (Representatives shall be express third-party beneficiaries of such policy, a “R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by provision. After the R&W Insurance Policy is bound, Buyer shall not (and shall cause its Affiliates not to) amend or modify in any material respect that is adverse to Seller and its Affiliates and Representatives, or otherwise novate, assign, waive or terminate, the provisions of the R&W Insurance Policy described in clauses (a) and (b) of the immediately preceding sentence without the prior written consent of Seller, which consent may be paid (the “R&W Policy Premium”) given or withheld in Seller’s sole discretion. Buyer shall be paid by Parent at or following Closing in connection with the issuance of solely responsible for all costs to procure, maintain and make claims under the R&W Insurance Policy, with fifty percent (50%) including all premiums, broker fees, underwriting fees, retentions, Taxes, expenses and costs of any nature whatsoever. Buyer acknowledges and agrees that the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance absence of doubt, any other costs incurred or due following the Effective Time relating to coverage under the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (for any reason, including the Surviving Company after insolvency of, or breach of any R&W Insurance Policy by, any insurer thereunder, the Mergers); (b) failure of Buyer to file notices or claims that are timely and sufficient under any R&W Insurance Policy, or the failure by any insurer under any R&W Insurance Policy to make any payments to Buyer under such R&W Insurance Policy, or to deny coverage, for any reason, under such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogationexpand, contributionalter, assignmentamend, change or otherwise affect Seller’s liability under this Agreement. Seller agrees to deliver, or otherwisecause to be delivered, against the Stockholder or its Affiliates to Buyer a soft copy (or any direct or indirect past or present shareholdere.g., member, partner, stockholder, employee, director or officer (or the functional equivalent of any such positionthumb drive) of the Stockholder or its Affiliates) (except documents and items made available to Buyer in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance Data Room as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the other persons listed in clause Closing no later than ten (c10) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)Business Days after the Closing Date.

R&W Insurance Policy. In the event Parent or any of its Affiliates obtains a representations and warranties insurance policy in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by The Buyer Parties shall cause the R&W Insurance Policy to be paid (in full force and effect as of the “R&W Policy Premium”) shall be paid by Parent at or following Initial Closing in connection with the issuance of Date. Any costs and expenses related to the R&W Insurance Policy, with fifty percent (50%) including the total premium, underwriting costs, brokerage commissions for the Buyer Party’s broker, Taxes related to such policy and other fees and expenses of the R&W Policy Premium being such policy shall be borne by the Company Buyer Parties. The R&W Insurance Policy provides that (a) the underwriters shall only be entitled to subrogate against the Companies, the Equityholders, the Equityholders’ Representative or their Representatives if and to the extent that the payment of Damages thereunder arose out of Fraud, (b) the Equityholders may rely upon and enforce the preceding Section 6.13(a) as a Transaction Expensean express third-party beneficiary, and, for and (c) the avoidance foregoing provisions of doubt, any other costs incurred or due following the Effective Time relating to Section 6.13(a) and (b) in the R&W Insurance Policy shall may only be borne solely by Parent amended with the written consent of the Equityholder Representative. From and its Affiliates (including the Surviving Company after the Mergers); date hereof, the Buyer Parties (bi) such shall provide the Equityholder Representative with prompt written notice of any claim made against the R&W Insurance Policy after the applicable Closing Date and (ii) shall not provide for amend, modify, supplement or otherwise change, terminate or waive any “seller retention” (as such phrase is commonly used in provision of the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogationin a manner materially adverse to the Companies, contribution, assignmentthe Equityholders, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or Equityholders Representative without the functional equivalent of any such position) prior written consent of the Stockholder or its Affiliates) Equityholder Representative (except which consent shall be in the case sole and absolute discretion of Fraudsuch Person); (d) . CFC IPA and/or the Stockholder shallEquityholder Representative, and as applicable, shall cause the Company to, use commercially reasonable efforts Commercially Reasonable Efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such the Buyer Parties in connection with any claim made by any Buyer Party under the R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse Policy, to the Stockholder or any extent that such reasonable cooperation would assist the Buyer Parties in pursuing and obtaining the maximum recovery available in respect of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)such claim.

R&W Insurance Policy. In (a) Purchaser shall use its commercially reasonable efforts to acquire, at or prior to the event Parent or any of its Affiliates obtains Closing, a transaction representations and warranties insurance policy on terms and conditions substantially similar to those set forth in respect the Non-Binding Indication Letter dated April 29, 2014 addressed to Purchaser and previously provided to the Company (the “NBIL”) and the sample policy provided to the Company on May 8, 2014, with only such additions, deletions and other changes to such terms and conditions and such policy that are adverse to the Equityholders or the Equityholder Representative or that increase the premium of the representations policy as Purchaser and warranties contained in this Agreement the Company (prior to the Effective Time) or in any certificate or other instrument contemplated by or delivered in connection with this Agreement the Equityholder Representative (after the Effective Time) may mutually agree (such insurance policy, a the “R&W Insurance Policy”). The R&W Insurance Policy shall: (i) contain a waiver of subrogation by the insurer in favor of the Equityholders, then with only an exception for fraud, (aii) contain declarations in accordance with the payment comparable provisions of the NBIL and (iii) not have any partial cover, no cover or other coverage qualifications on the cover page thereof (except for exclusions set forth in such policy), in any such case set forth in the preceding clause (i), (ii) or (iii) unless mutually agreed by Purchaser and the Company (prior to the Effective Time) or the Equityholder Representative (after the Effective Time). The Company shall be responsible for one half (1/2) of the premium (inclusive for the R&W Insurance Policy, which amount shall be characterized as a Company Transaction Expense for purposes of commissionsthis Agreement, surplus lines and Purchaser shall be responsible for the remainder of the premium and for all other costs of procuring the R&W Insurance Policy. Each of the Company and Purchaser shall undertake its commercially reasonable efforts as may be necessary or premium taxes) and underwriting fees required by appropriate to enable Purchaser to procure the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with prior to the Closing. From and after the issuance of the R&W Insurance Policy, with fifty percent (50%) Purchaser shall not amend, modify or otherwise change, terminate or waive any provision of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any a manner adverse to the Stockholder or any Equityholders (in light of the other persons listed purpose of the R&W Insurance Policy reflected in clause (cArticle IX) or the Equityholder Representative including with respect to the waiver of this Section 6.10subrogation set forth therein, without Stockholder’s the prior written consent (which consent may be withheld in its sole discretion)of the Equityholder Representative.

R&W Insurance Policy. In Prior to or concurrently with the event Parent or any execution of its Affiliates obtains this Agreement, Purchaser shall cause to be bound and incepted a representations and warranties insurance policy in respect (a copy of which Purchaser shall have provided Seller prior to the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement execution thereof) (such policy, a the “R&W Insurance Policy”). Purchaser shall pay, then (a) the payment of or cause to be paid, the premium (inclusive and all other costs required for issuance of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (Policy. Following the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the final issuance of the R&W Insurance Policy, with fifty percent (50%) Xxxxxxxxx agrees to use reasonable best efforts to keep the R&W Insurance Policy in full force and effect for the policy period set forth therein. Upon its final issuance, Purchaser shall deliver a copy of the R&W Insurance Policy Premium being borne to Seller. The Parties acknowledge that Purchaser obtaining the R&W Insurance Policy is a material inducement to Seller entering into the transactions contemplated by this Agreement, and Seller is relying on Purchaser’s covenants and obligations set forth in this Section 5.10. The R&W Insurance Policy shall include a provision whereby the Company as a Transaction Expenseinsurer expressly waives, andand irrevocably agrees not to pursue, for directly or indirectly, any subrogation rights against Seller or any of its Affiliates, or any former shareholders, managers, members, directors, officers and employees of any of the foregoing with respect to any claim made by any insured thereunder, which waiver Seller may enforce directly against the insurer of the R&W Insurance Policy, other than in the event of Actual Fraud. Purchaser shall not waive, amend, modify or otherwise revise this subrogation provision under the R&W Insurance Policy, or allow such provision to be waived, amended, modified or otherwise revised by any other Person, in each case, without Seller’s prior written consent, which Seller may grant or withhold in its sole discretion. For the avoidance of doubt, in no event shall Seller’s obligations or liability under Article VII be expanded or increased as a result of any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely failure by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder Purchaser or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing a representation and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or warranty insurance policy or, if obtained, any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)terms or conditions thereof.

R&W Insurance Policy. In Prior to the event Parent or any Time of Closing, the Buyer may, at its Affiliates obtains own expense, obtain and cause to be underwritten a buyer-side representations and warranties insurance policy in respect providing insurance coverage for Losses suffered or incurred by the Buyer, the Buyer’s Affiliates, the Companies and their respective partners, managers, members, shareholders, consultants, Representatives, successors and assigns to the extent arising out of, or resulting from the inaccuracy of any representation or warranty of the representations and warranties Sellers contained in this Agreement or in any certificate delivered pursuant hereto and, if the Buyer has elected such coverage, Taxes in respect of any of the Companies for any Tax periods ending on or other instrument contemplated by or delivered in connection with this Agreement prior to the Time of Closing, according to the terms thereof (such policy, a the “R&W Insurance Policy”), then (a) . The Buyer acknowledges that the payment of representations and warranties contained in or made pursuant to this Agreement and the premium (inclusive of commissions, surplus lines or premium taxes) representations and underwriting fees required by warranties set forth in any certificate delivered at the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the issuance this Agreement shall terminate effective as of the R&W Insurance PolicyClosing, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in survive the representations Closing and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogationthat, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) , Buyer’s sole recourse and remedy after the Stockholder shallClosing in respect of any inaccuracy or breach of any representation or warranty of Sellers contained in this Agreement or in any certificate delivered pursuant hereto shall be to make a claim against the R&W Insurance Policy if obtained. The Buyer acknowledges and agrees that if the Buyer obtains the R&W Insurance Policy, and the Buyer shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (eexpressly provide that the insurer(s) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended issuing such policy shall waive or otherwise modified not pursue any subrogation rights against the Sellers, their Affiliates, and their respective Representatives, other than in any manner adverse to the Stockholder or any case of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion)Fraud.