Common use of R&W Insurance Clause in Contracts

R&W Insurance. During the Interim Period, Acquiror may (but shall not be required to) obtain a buyer-side representations and warranties insurance policy with respect to the representations and warranties of the Company, in the name of and for the benefit of Pubco (the “R&W Policy”), which the Acquiror shall give the Company and its Representatives a reasonable opportunity to review and must be reasonably satisfactory to the Company. The Company will use commercially reasonable efforts to provide to Acquiror, during the Interim Period, reasonable assistance as is reasonably required so as to permit the binding and issuance of the R&W Policy at or prior to the Closing, including the execution and delivery of such no-claims declarations as is reasonably necessary (with such exceptions as deemed necessary by the Company) in connection with the issuance of the R&W Policy; provided that any such no-claims declaration given by an officer of the Company shall only be required to be given in such individuals’ capacity as an officer of the Company, and not in any individual capacity; provided further that the failure to deliver any no-claims declaration or breach of the covenants set forth in this Section 7.09, shall not constitute a failure of the condition set forth in Section 10.02(b) to be satisfied. If obtained by Acquiror, the R&W Policy shall provide that (i) the insurer or a Person claiming through the insurer shall have no, and shall waive and not pursue any and all, subrogation rights against the Company (including any successor entities) or any of its (including any successor entities) Affiliates (including any Pre-Closing Holder) with respect to any claim made by any insured thereunder (except against such Person to the extent a claim is paid by the insurer under the R&W Policy as a direct result of such Person’s Fraud); (ii) the Company (including any successor entities) is a third-party beneficiary of such waiver with the express right to enforce such waiver; and (iii) no Person shall amend the R&W Policy in a manner adverse to the Company (including any successor entities) or any of its Affiliates (including any Pre-Closing Holder) (including, for the avoidance of doubt, to provide that the insurer or any other Person may bring a claim against the Company (including any successor entity) or its Affiliates (including any Pre-Closing Holder) by way of subrogation (except as a direct result of such Person’s Fraud)), without the Company’s prior written consent. All reasonable and documented out-of-pocket costs and expenses incurred by Acquiror and the Company in obtaining the R&W Policy, including all premiums, brokers fees, and related costs, shall be treated as Acquiror Transaction Expenses.

R&W Insurance. During Prior to or at the Interim PeriodClosing, Acquiror may (but the Corporation shall not be required to) provide to the Buyer such cooperation as is reasonably requested by the Buyer to obtain a buyer-side representations representation and warranties warranty insurance policy issued in the name of the Buyer with respect to the representations and warranties contained in Articles 3 and 4 of this Agreement pursuant to the Company, in binder of insurance agreement between the name of Buyer and for the benefit of Pubco insurer’s specified therein (the “R&W Policy”), which the Acquiror shall give the Company and its Representatives a reasonable opportunity to review and must be reasonably satisfactory to the Company. The Company will use commercially reasonable efforts to Buyer shall provide to Acquiror, during the Interim Period, reasonable assistance as is reasonably required so as to permit Securityholder Representative with copies of the binding binder of insurance agreement and issuance of the R&W Policy at and any amendments thereto or prior to the Closing, including the execution and delivery of such no-claims declarations as is reasonably necessary (with such exceptions as deemed necessary by the Company) in connection with the issuance waivers thereof promptly upon receipt of the R&W Policy; provided that any such no-claims declaration given by an officer of the Company shall only be required to be given in such individuals’ capacity as an officer of the Company, and not in any individual capacity; provided further that the failure to deliver any no-claims declaration or breach of the covenants set forth in this Section 7.09, shall not constitute a failure of the condition set forth in Section 10.02(b) to be satisfied. If obtained by Acquirorbinder, the R&W Policy or any such amendment or waiver. The Buyer shall provide not amend, modify or otherwise change or terminate the R&W Policy in any manner that (i) would be adverse to the insurer or a Person claiming through the insurer shall have noEquityholders, and shall waive and not pursue any and all, subrogation rights against the Company (including any successor entities) or any of its (including their Affiliates or any successor entities) Affiliates (including any Pre-Closing Holder) with respect of their respective Representatives or their respective heirs, executors, successors and assigns, without the prior written consent of the Securityholder Representative. The Buyer, acknowledges and agrees that the Buyer shall pay or cause to any claim made by any insured thereunder (except against such Person be paid all fees, expenses and premiums relating to the extent a claim is paid by R&W Policy and shall be solely responsible for any retention amount or deductible thereunder. The Buyer covenants with each of the insurer Equityholders that: (A) it will not knowingly take any action that causes any right of the insured under the R&W Policy as a direct result of such Person’s Fraud); (ii) the Company (including any successor entities) is a third-party beneficiary of such waiver with the express right not to enforce such waiver; and (iii) no Person shall amend have the R&W Policy in a manner adverse to the Company full force and effect upon its terms; (including any successor entitiesB) or any it will comply with all terms and conditions of its Affiliates (including any Pre-Closing Holder) (including, for the avoidance of doubt, to provide that the insurer or any other Person may bring a claim against the Company (including any successor entity) or its Affiliates (including any Pre-Closing Holder) by way of subrogation (except as a direct result of such Person’s Fraud)), without the Company’s prior written consent. All reasonable and documented out-of-pocket costs and expenses incurred by Acquiror and the Company in obtaining the R&W Policy, including all premiums, brokers feesany pre- or post-Closing deliverables required under the R&W Policy; and (C) the R&W Policy shall contain an irrevocable waiver of subrogation by the insurer in favour of the Equityholders, and related costsany of their Affiliates or any of their respective Representatives and their respective heirs, shall be treated executors, successors and assigns, except in the case of Fraud as Acquiror Transaction Expensesfinally determined by a court of competent jurisdiction.

R&W Insurance. During Acquiror shall use commercially reasonable efforts to, prior to the Interim PeriodClosing, Acquiror may (but shall not be required to) obtain a buyer-side representations and warranties insurance policy with respect to the representations and warranties of the Company, in the name of and for the benefit of Pubco Acquiror (the “R&W Policy”), which the Acquiror shall give the Company or terms and its Representatives a reasonable opportunity to review and must be conditions of such policy reasonably satisfactory to the Company. The Company and Topco will use commercially reasonable efforts to provide to Acquiror, during the Interim Period, reasonable all assistance as is reasonably required so as to permit the binding and issuance of the such R&W Policy at or prior to the Closing, including the execution and delivery of such no-claims declarations as is reasonably necessary (with such exceptions as deemed necessary by the Company) in connection with the issuance of the such R&W Policy; provided that provided, that, (i) any such no-claims declaration given by an officer of the Company shall only be required to be given in such individuals’ ’, capacity as an officer of the Company, and not in any individual capacity; provided further that , (ii) neither Topco nor the failure equityholders of Topco will be required to deliver execute any such no-claims declaration (excluding any such no-claims declaration given by an equityholder of Topco, who is also an officer of the Company, in accordance with the foregoing clause (i)), and (iii) Acquiror will use reasonable best efforts to avoid the requirement and execution of any no-claims declaration or breach of the covenants set forth in this Section 7.09, shall not constitute a failure of the condition set forth in Section 10.02(b) to be satisfieddeclaration. If obtained by Acquiror, the The R&W Policy shall provide that (i) include a provision whereby the insurer or a Person claiming through the insurer shall have noexpressly waives, and shall waive and agrees not pursue to pursue, directly or indirectly, any and allrights of or via subrogation, subrogation rights contribution, or otherwise against the Company (including any successor entities) Topco or any of its (including equityholders or any successor entities) of their respective Affiliates (including any Pre-Closing Holder) with respect to any claim made by any insured thereunder (except against such Person to the extent a claim is paid by the insurer under the R&W Policy Insurance as a direct result of such Person’s Fraud); (ii) . The Policy shall expressly provide that such Persons are intended third party beneficiaries of the Company (including any successor entities) is a third-party beneficiary of such waiver foregoing provision, with the express right to enforce such waiver; and (iii) no Person shall amend it. No insured under the R&W Policy in a manner adverse shall waive, amend, modify or otherwise revise such subrogation provision, or allow such provision to the Company (including any successor entities) be waived, amended, modified, or any of its Affiliates (including any Pre-Closing Holder) (including, for the avoidance of doubt, to provide that the insurer or any other Person may bring a claim against the Company (including any successor entity) or its Affiliates (including any Pre-Closing Holder) by way of subrogation (except as a direct result of such Person’s Fraud)), without the Company’s prior written consent. All reasonable and documented out-of-pocket costs and expenses incurred by Acquiror and the Company in obtaining the R&W Policy, including all premiums, brokers fees, and related costs, shall be treated as Acquiror Transaction Expensesotherwise revised.

R&W Insurance. During the Interim Period, Acquiror may (but shall not be required to) It is understood and agree that Buyer intends to obtain a buyer-side representations and warranties insurance policy with respect to as a source of recovery for any inaccuracies in the representations and warranties of the Company, in the name of Seller and for the benefit of Pubco Lender set forth herein (the “R&W Policy”). From the date of this Agreement until the Closing or the earlier termination of this Agreement pursuant to Section 9.01, which the Acquiror Buyer shall give the Company and its Representatives a reasonable opportunity to review and must be reasonably satisfactory to the Company. The Company will use commercially reasonable efforts to provide to Acquiror, during the Interim Period, reasonable assistance as is reasonably required so as to permit the binding and issuance of the obtain a R&W Policy to be effective at or prior to the Closing on terms reasonably acceptable to Buyer. In the event such R&W Policy is obtained at or prior to the Closing, including the execution and delivery of such no-claims declarations as is reasonably necessary (with such exceptions as deemed necessary by the Company) premium in connection with the issuance respect of the R&W Policy shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Seller, and to the extent unpaid by Seller prior to the Closing, Seller’s portion thereof shall be deemed Company Transaction Expenses. Without limitation on the foregoing provisions of this Section 7.12, in the event that such R&W Policy is obtained following the Closing, Buyer shall issue to Lender the Lender Stock R&W Policy Amount within two (2) Business Days of obtaining such R&W Policy; provided that any such no-claims declaration given by an officer of the Company shall only be required to be given in such individuals’ capacity as an officer of the Companyprovided, and not in any individual capacity; provided further that the failure to deliver any no-claims declaration or breach of the covenants obligation set forth in this Section 7.09, sentence shall not constitute a failure expire on the first anniversary of the condition set forth in Section 10.02(b) to be satisfied. If Closing Date if no such R&W Policy is obtained by Acquiror, the such date. Any such R&W Policy shall provide that (i) include a provision whereby the insurer or a Person claiming through the insurer shall have noexpressly waives, and shall waive and agrees not pursue to pursue, directly or indirectly, any and all, subrogation rights against the Company (including any successor entities) Seller, Lender or their respective Affiliates, or any former or current general or limited partners, stockholders, managers, members, directors, officers, employees, agents and representatives of its (including any successor entities) Affiliates (including any Pre-Closing Holder) of the foregoing with respect to any claim made by any insured thereunder (except against such Person to the extent a claim is paid by the insurer for Fraud). No insured party under the R&W Policy as a direct result of shall waive, amend, modify or otherwise revise this subrogation provision, or allow such Person’s Fraud); (ii) the Company (including any successor entities) is a third-party beneficiary of such waiver with the express right provision to enforce such waiver; and (iii) no Person shall amend the R&W Policy in a manner adverse to the Company (including any successor entities) be waived, amended, modified, or any of its Affiliates (including any Pre-Closing Holder) (including, for the avoidance of doubt, to provide that the insurer or any other Person may bring a claim against the Company (including any successor entity) or its Affiliates (including any Pre-Closing Holder) by way of subrogation (except as a direct result of such Person’s Fraud)), otherwise revised without the Company’s prior written consent. All reasonable consent of Seller and documented out-of-pocket costs and expenses incurred by Acquiror and the Company in obtaining the R&W Policy, including all premiums, brokers fees, and related costs, shall be treated as Acquiror Transaction ExpensesLender.

R&W Insurance. During The parties acknowledge that, as of the Interim Perioddate hereof, Acquiror may (but shall not be required to) obtain the Purchaser has obtained a buyer-side representations and warranties insurance policy with respect conditional binder to the representations R&W Insurance Policy, attached hereto as Exhibit D, and warranties that a true and correct copy of the Company, in the name of and for the benefit of Pubco (the “R&W Policy”), which the Acquiror shall give the Company and its Representatives a reasonable opportunity to review and must be reasonably satisfactory such conditional binder has been provided to the Company. The Company will Prior to the Closing, the Purchaser, shall use commercially reasonable efforts to provide take all action necessary to Acquiror, during the Interim Period, reasonable assistance as is reasonably required so as to permit the binding obtain and issuance of bind the R&W Insurance Policy at or prior to on the Closing, including the execution same terms and delivery of such no-claims declarations conditions as is reasonably necessary (with such exceptions as deemed necessary by the Company) in connection with the issuance of the R&W Policy; provided that any such no-claims declaration given by an officer of the Company shall only be required to be given in such individuals’ capacity as an officer of the Company, and not in any individual capacity; provided further that the failure to deliver any no-claims declaration or breach of the covenants set forth in this Section 7.09Exhibit D, except as consented to by the Company in writing; provided, that the Purchaser agrees that it shall not constitute a failure of the condition set forth in Section 10.02(b) seek to be satisfied. If obtained by Acquirormake, enter into, or consent to, any amendment or modification to the R&W Insurance Policy shall provide that (i) the insurer or a Person claiming through the insurer shall have no, and shall waive and not pursue any and all, subrogation rights against the Company (including any successor entities) or any of its (including any successor entities) Affiliates (including any Pre-Closing Holder) with respect to any claim made by any insured the subrogation provisions or provisions that limit or restrict coverage or the ability of Purchaser to assign its rights thereunder (except against such Person to the extent a claim is paid by the insurer under the R&W Policy as a direct result of such Person’s Fraud); (ii) the Company (including any successor entities) is a third-party beneficiary of such waiver with the express right to enforce such waiver; and (iii) no Person shall amend the R&W Policy in a manner adverse to the Company (including any successor entities) or any of its Affiliates (including any Pre-Closing Holder) (including, for the avoidance of doubt, to provide that the insurer or any other Person may bring a claim against the Company (including any successor entity) or its Affiliates (including any Pre-Closing Holder) by way of subrogation (except as a direct result of such Person’s Fraud)), without the CompanySeller Representative’s prior written consent. All reasonable The Sellers and documented out-of-pocket the Company shall cooperate with Parent’s efforts and provide assistance as reasonably required by Purchaser to obtain and bind the R&W Insurance Policy. Prior to the Closing, Purchaser shall pay or cause to be paid, all costs and expenses incurred by Acquiror and the Company in obtaining related to the R&W Insurance Policy, including all premiumsthe total premium, brokers fees, and related underwriting costs, brokerage commissions, Taxes related to such policy and other fees and expenses of such policy; provided, that, the portion of the premium for the R&W Insurance Policy and such costs and expenses equal to or less than Five Hundred Thousand Dollars ($500,000) shall be treated as Acquiror a Company Party Transaction ExpensesExpense hereunder. The Purchaser covenants and agrees not to cancel or terminate the R&W Insurance Policy (except for the expiration of the R&W Insurance Policy in accordance with its terms) and to use commercially reasonable efforts to seek and procure recovery under the R&W Insurance Policy for any Losses except to the extent such Losses are not covered under the R&W Insurance Policy in accordance with its terms.