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 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.

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 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 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 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 (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 Insurance Policy Premium being borne by in a manner adverse to the Company as Equityholders (in light of the purpose of the R&W Insurance Policy reflected in Article IX) or the Equityholder Representative including with respect to the waiver of subrogation set forth therein, without the prior written consent of the Equityholder Representative. (b) If a Transaction ExpenseR&W Insurance Policy is obtained, andthen from and after the date such R&W Insurance Policy becomes effective: (i) the Escrow Period shall be reduced to the twelve (12) month anniversary of the date of this Agreement, for (ii) the avoidance provisions of doubt, any other costs incurred or due following the Effective Time relating Section 9.6 shall not apply to the R&W Insurance Policy and (iii) notwithstanding the provisions of Section 9.12(a), any valid indemnification claims brought by any of the Purchaser Indemnified Parties pursuant to Section 9.2(a) shall be borne solely by Parent and its Affiliates paid (including A) first, from the Surviving Company after R&W Insurance Policy, to the Mergers); extent coverage is available to Purchaser or the other Purchaser Indemnified Parties thereunder (b) such it being agreed that to the extent Losses are below or within the retention amount, or in excess of the policy limit, in respect of the R&W Insurance Policy, coverage shall not be deemed available under the R&W Insurance Policy shall not provide for with respect to such Losses) and (B) 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 remainder of any such position) claims shall be paid thereafter in accordance with the provisions 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 discretion9.12(a).

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 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) Buyers and the event Parent Sellers’ Representative shall equally pay any and all premiums, broker fees and commissions, Taxes and underwriting fees, that are payable or are otherwise required to be borne or paid pursuant to the Binder Agreement and the R&W Insurance Policy. Buyers shall use commercially reasonable efforts to facilitate and not impede Sellers’ exercise of any third party beneficiary rights with respect to the R&W Insurance Policy at Sellers sole cost and expense. (b) From and after the date of this Agreement, unless earlier terminated in accordance with Article 8 of this Agreement, Buyers shall not, and shall not permit any of its Affiliates obtains a representations and warranties insurance policy in respect of (including the representations and warranties contained in this Agreement Company Group) to, amend, modify, terminate or in waive (i) any certificate or other instrument contemplated provision relating to the waiver 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 insurer under the R&W Insurance Policy of any indemnification, contribution, subrogation or other rights to be paid pursue any claim against Sellers, any of its Affiliates or Representatives or any of their respective successors and assigns, except in the case of a claim of Fraud by a Seller; (ii) any provision providing that Sellers are an express third party beneficiary of the “waiver described in the foregoing clause (i); (iii) any provision providing that Buyers are not required to pursue remedies against Sellers, any of their Affiliates or Representatives or any of their respective successors and assigns prior to or as a condition to making a claim under the R&W Policy Premium”Insurance Policy; or (iv) shall be paid by Parent at or following Closing in connection with the issuance any other provision of the R&W Insurance Policy, with fifty percent including the Retention and the Limit of Liability (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 each such term is defined in the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (bPolicy) 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 that would reasonably be expected to the Stockholder adversely affect Sellers or any of their Affiliates, in each case without the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (of Sellers, which consent may be withheld withheld, conditioned or granted in its Sellers’ sole and absolute discretion).

R&W Insurance Policy. In (i) The parties acknowledge that the event Parent or any Buyer has obtained the R&W Insurance Policy, in the amount of its Affiliates obtains a $15,000,000 bound as of the date hereof and to remain in effect with respect to particular representations and warranties insurance policy in respect of the for such time as such representations and warranties contained survive (as set forth 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 . Each Party hereto shall: (ai) use commercially reasonable efforts to take all actions required to be taken by such Party at or prior to the payment Closing under the R&W Insurance Policy in order to satisfy any conditions to the effectiveness of the premium R&W Insurance Policy or the coverage to be provided thereby and (inclusive ii) execute and deliver all documents, instruments, certificates and other writings required to be executed and delivered by such Party under the R&W Insurance Policy at or prior to the Closing in order to satisfy any conditions to the effectiveness of commissionsthe R&W Insurance Policy or the coverage to be provided thereby. Without limiting the generality of the foregoing, surplus lines or premium taxes) the Buyer shall timely pay all premiums and underwriting fees other amounts required by to cause the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing become effective in connection accordance with the issuance its terms as of the R&W Insurance PolicyClosing. (ii) The Buyer shall not, 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, and shall not permit any other costs incurred or due following the Effective Time relating to Person insured under the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including to, terminate, amend, alter or waive any rights or remedies under 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 without 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 the Seller (which shall not be unreasonably withheld, conditioned or delayed; provided, that notwithstanding the foregoing, if the Seller determines at its sole discretion that such termination, alteration or waiver adversely affects the Seller, the Seller shall determine whether to provide such consent may be withheld in at its sole discretion).

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.

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 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 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).