Common use of R&W Insurance Clause in Contracts

R&W Insurance. It is understood and agree that Buyer intends to obtain a buyer-side representations and warranties insurance policy as a source of recovery for any inaccuracies in the representations and warranties of Seller and Lender set forth herein (the “R&W Policy”). From the date of this Agreement until the Closing or the earlier termination of this Agreement pursuant to Section 9.01, Buyer shall use commercially reasonable efforts to obtain a R&W Policy to be effective at or prior to the Closing on terms reasonably acceptable to Buyer. In the event such R&W Policy is obtained at or prior to the Closing, the premium in respect of the R&W Policy shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Seller, and to the extent unpaid by Seller prior to the Closing, Seller’s portion thereof shall be deemed Company Transaction Expenses. Without limitation on the foregoing provisions of this Section 7.12, in the event that such R&W Policy is obtained following the Closing, Buyer shall issue to Lender the Lender Stock R&W Policy Amount within two (2) Business Days of obtaining such R&W Policy; provided, that the obligation set forth in this sentence shall expire on the first anniversary of the Closing Date if no such R&W Policy is obtained by such date. Any such R&W Policy shall include a provision whereby the insurer expressly waives, and agrees not to pursue, directly or indirectly, any subrogation rights against Seller, Lender or their respective Affiliates, or any former or current general or limited partners, stockholders, managers, members, directors, officers, employees, agents and representatives of any of the foregoing with respect to any claim made by any insured thereunder (except for Fraud). No insured party under the R&W Policy shall waive, amend, modify or otherwise revise this subrogation provision, or allow such provision to be waived, amended, modified, or otherwise revised without the prior written consent of Seller and Lender.

R&W Insurance. It is understood and agree that Buyer intends Promptly following the execution of this Agreement, the Purchaser or an Affiliate thereof will take all necessary actions to obtain bind the Purchaser’s coverage under a buyerPurchaser-side representations and warranties insurance policy naming the Purchaser as a source of recovery an insured and providing coverage for any inaccuracies in certain Losses incurred by the representations Purchaser and warranties of Seller and Lender set forth herein its Affiliates related to this Agreement (the “R&W Insurance Policy”). From The premiums, underwriting fees, retention amounts, brokers’ commissions and other costs and expenses relating to such R&W Insurance Policy shall be the date sole responsibility of this Agreement until the Closing Purchaser, without limiting the right of the Purchaser to receive indemnification payments under Article X that may be applied towards the retention amount relating to the R&W Insurance Policy. Prior to the Closing, Selling Entities shall provide, and shall cause their Affiliates to provide, such cooperation in connection with the arrangement of the R&W Insurance Policy as may be reasonably requested by the Purchaser and which is necessary, customary or advisable in connection with the earlier termination of this Agreement pursuant to Section 9.01, Buyer shall use commercially reasonable Purchaser’s efforts to obtain a the R&W Insurance Policy. The Purchaser will use reasonable best efforts to comply in all material respects with all of its obligations under the R&W Insurance Policy necessary to the binding of the R&W Insurance Policy. A true and complete copy of such R&W Insurance Policy shall be effective at or delivered to the Seller prior to the Closing on terms reasonably acceptable to Buyerand shall provide that Liberty Surplus Insurance Corporation (the “R&W Insurer”) shall have no right of subrogation against the Sellers or any of their Affiliates, and the R&W Insurer has waived any such right of subrogation, except in the case of Fraud by such Seller. In The Purchaser agrees that, from and after the event such R&W Policy is obtained at or prior to the Closing, the premium in respect issuance of the R&W Insurance Policy, it will not amend, modify, terminate or waive any provision of the R&W Insurance Policy shall in any manner that would 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 inconsistent with the foregoing provisions of this Section 7.12, in or that would otherwise reasonably be expected to adversely impact the event that such R&W Policy is obtained following the Closing, Buyer shall issue to Lender the Lender Stock R&W Policy Amount within two (2) Business Days of obtaining such R&W Policy; provided, that the obligation set forth in this sentence shall expire on the first anniversary of the Closing Date if no such R&W Policy is obtained by such date. Any such R&W Policy shall include a provision whereby the insurer expressly waives, and agrees not to pursue, directly or indirectly, any subrogation rights against Seller, Lender or their respective Affiliates, Seller or any former or current general or limited partnersof its Affiliates in any material respect (it being understood that, stockholderssubject to Section 10.07(b), managers, members, directors, officers, employees, agents and representatives of any of the foregoing Purchaser shall have the right to make all decisions in its sole discretion with respect to any claim made by any insured thereunder (except for Fraud). No insured party claims under the R&W Policy shall waiveInsurance Policy, amend, modify including whether or otherwise revise this subrogation provision, or allow such provision not to be waived, amended, modified, or otherwise revised without pursue a claim under the prior written consent of Seller and LenderR&W Insurance Policy).

R&W Insurance. It is understood and agree that Buyer intends Purchaser or an Affiliate thereof shall use reasonable best efforts to obtain a buyerbuy-side representations representation and warranties insurance policy as a source in respect of recovery for any inaccuracies in the representations and warranties of Seller and Lender set forth herein contained in this Agreement or in any certificate or other document contemplated by or delivered in connection with this Agreement (such policy, together with the binder agreement associated therewith, the “R&W Insurance Policy”). From the date of this Agreement until the Closing or the earlier termination of this Agreement pursuant to Section 9.01, Buyer shall use commercially including, but not limited to, using reasonable best efforts to obtain a ensure (a) the R&W Insurance Policy to be effective at or is obtained prior to the Closing on terms reasonably acceptable and to Buyer. In cause the event such R&W Insurance Policy is obtained at or prior to remain in full force and effect after the Closing, including by satisfying on a timely basis all conditions necessary for the premium in respect continuance of coverage under the R&W Insurance Policy, (b) the insurer’s due diligence review is successfully completed in a manner consistent with the efforts used if the Purchaser was relying on the R&W Insurance Policy as its sole remedy to recover for Losses under this Agreement, and (c) Parent is notified of preliminary quotes from insurers and given an opportunity to select the insurer used for coverage. Additionally, with respect to the R&W Insurance Policy, (a) all premiums, Taxes, underwriting fees, brokers’ commissions and other similar costs, fees and expenses (including uninsured costs to pursue coverage under the R&W Insurance Policy) related to obtaining the R&W Insurance Policy shall be borne fifty percent Transaction Expenses, (50%b) all advisor fees and costs relating to the R&W Insurance Policy, including attorney’s fees, shall be paid for by Buyer the Party who incurred such fees and fifty percent costs, (50%c) by Sellerthe R&W Insurance Policy shall provide at all times that the insurer(s) (and any managing general underwriter thereof) shall not have, and to the fullest extent unpaid waives, any and all subrogation rights, rights of contribution or any rights of assignment or otherwise against any of the Parent Related Parties, or any of their respective Affiliates or Representatives, arising out of, as a result of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, including any alleged breach of any representation or warranty, except in the case of Fraud, (d) the Parent Related Parties and their respective Affiliates and Representatives shall be third party beneficiaries of the foregoing waiver, (e) Purchaser shall provide Parent (or its counsel) a reasonable opportunity to review the R&W Insurance Policy in advance of binding coverage and consider in good faith any reasonable comments proposed by Seller Parent (or its counsel), and (f) the R&W Insurance Policy shall prohibit any amendment, supplement or modification to, and Purchaser shall not amend, supplement, waive or otherwise modify the R&W Insurance Policy, following the binding of such R&W Insurance Policy, in any manner that would be adverse to any Parent Related Party without Parent’s express prior written consent. Additionally, and without limiting the generality of the foregoing, any rights of any issuer of the R&W Insurance Policy, including any rights of subrogation, do not affect, expand or increase any liability or obligation of any Parent Related Party in connection with this Agreement. For the avoidance of doubt, the Parties hereto acknowledge and agree that the obtaining of the R&W Insurance Policy is not a condition to the Closing, Seller’s portion thereof shall be deemed Company Transaction Expenses. Without limitation on the foregoing provisions of this Section 7.12, in the event that such R&W Policy is obtained following the Closing, Buyer shall issue to Lender the Lender Stock R&W Policy Amount within two (2) Business Days of obtaining such R&W Policy; provided, that the obligation set forth in this sentence shall expire on the first anniversary of the Closing Date if no such R&W Policy is obtained by such date. Any such R&W Policy shall include a provision whereby the insurer expressly waives, and agrees not to pursue, directly or indirectly, any subrogation rights against Seller, Lender or their respective Affiliates, or any former or current general or limited partners, stockholders, managers, members, directors, officers, employees, agents and representatives of any of the foregoing with respect to any claim made by any insured thereunder (except for Fraud). No insured party under the R&W Policy shall waive, amend, modify or otherwise revise this subrogation provision, or allow such provision to be waived, amended, modified, or otherwise revised without the prior written consent of Seller and Lender.

R&W Insurance. It is understood and agree (a) The Parties acknowledge that Buyer intends to obtain the Purchaser has obtained a buyer-side representations representation and warranties warranty insurance policy as a source of recovery for any inaccuracies in connection with this Agreement, the Transactions and the representations and warranties of Seller and Lender set forth herein the Vendors made hereunder (together, the “R&W Policy”), effective as of Closing. From The R&W Policy expressly provides that, other than with respect to Fraud, the date of this Agreement until the Closing R&W Insurance Provider shall have no indemnification, contribution, subrogation or other rights to pursue any claim against any Vendor or the earlier termination Guarantor and that the Vendors and the Guarantor are third-party beneficiaries of this Agreement pursuant the R&W Insurance Provider’s promise to Section 9.01not pursue such indemnification, Buyer shall use commercially reasonable efforts to obtain a R&W Policy to be effective at contribution, subrogation or prior to other rights against any Vendor or the Closing on terms reasonably acceptable to BuyerGuarantor. In the event such R&W Policy is obtained at or prior to Following the Closing, the premium Purchaser shall not amend or waive, or permit the amendment or waiver of, the subrogation or third-party beneficiary provisions contained in respect of the R&W Policy shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Sellerbenefitting the Vendors or the Guarantor or otherwise amend, and to the extent unpaid by Seller prior to the Closingmodify, Seller’s portion thereof shall be deemed Company Transaction Expenses. Without limitation on the foregoing provisions of this Section 7.12restate, in the event that such R&W Policy is obtained following the Closing, Buyer shall issue to Lender the Lender Stock R&W Policy Amount within two (2) Business Days of obtaining such R&W Policy; provided, that the obligation set forth in this sentence shall expire on the first anniversary of the Closing Date if no such R&W Policy is obtained by such date. Any such R&W Policy shall include a provision whereby the insurer expressly waives, and agrees not to pursue, directly supplement or indirectly, any subrogation rights against Seller, Lender or their respective Affiliates, or any former or current general or limited partners, stockholders, managers, members, directors, officers, employees, agents and representatives of any of the foregoing with respect to any claim made by any insured thereunder (except for Fraud). No insured party under terminate the R&W Policy shall waive, amend, modify in a manner adverse to the Vendors or otherwise revise this subrogation provision, or allow such provision to be waived, amended, modified, or otherwise revised the Guarantors without the prior written consent of Seller the Vendors and Lenderthe Guarantor. (b) The Parties agree that the payment of the premium for the R&W Policy, any retention amount and all of the remaining costs associated with obtaining the R&W Policy, including the broker fee, the underwriting fee, the due diligence fee, carrier commissions, legal fees for counsel engaged by the underwriter and surplus lines Taxes and fees shall be borne solely by the Purchaser and the Purchaser confirms that all payments of all such amounts (excluding the retention) have been made or will be made forthwith following Closing. (c) Following Closing, the Purchaser shall provide to the Vendors and the Guarantor, concurrently with delivery to the requisite parties under the R&W Policy, copies of any written notices which relate to any claim or potential claim made under the R&W Policy.

R&W Insurance. It is understood On the date hereof, Buyer shall cause CFC Underwriting Ltd (the “R&W Insurer”) to conditionally bind the R&W Insurance Policy on the terms and agree conditions as set forth in the R&W Policy Binder Agreement (as may be amended, modified or supplemented from time to time in accordance with this Agreement). Buyer shall cause the R&W Insurance Policy to provide that Buyer intends to obtain a buyer-side representations and warranties insurance policy as a source the R&W Insurer has no subrogation rights, rights of recovery for contribution, rights acquired by assignment or any inaccuracies other similar rights against any Shareholder or Shareholders’ Representative (or any direct or indirect Shareholder, member, partner, equityholder, manager, director, officer, employee, agent, representative or attorney (or the functional equivalent of any of the foregoing) of any Shareholder or Shareholders’ Representative) except solely in the case of Fraud in the making of the representations and warranties of Seller and Lender set forth herein (the “R&W Policy”). From the date in Article III of this Agreement until the Closing or the earlier termination of this Agreement pursuant to Section 9.01, Buyer shall use commercially reasonable efforts to obtain a R&W Policy to be effective at or prior to the Closing on terms reasonably acceptable to Buyer. In the event such R&W Policy is obtained at or prior to the Closing, the premium (in respect of which case the R&W Policy Insurer shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Sellerhave rights of subrogation against such Person), and to Buyer will not (and will cause its Affiliates not to) amend the extent unpaid by Seller prior to the Closing, Seller’s portion thereof shall be deemed Company Transaction Expenses. Without limitation on the foregoing subrogation or third-party beneficiary provisions of this Section 7.12, contained in the event that such R&W Insurance Policy is obtained following the Closing, Buyer shall issue to Lender the Lender Stock R&W Policy Amount within two (2) Business Days of obtaining such R&W Policy; provided, that the obligation set forth in this sentence shall expire on the first anniversary of the Closing Date if no such R&W Policy is obtained by such date. Any such R&W Policy shall include a provision whereby the insurer expressly waives, and agrees not to pursue, directly or indirectly, any subrogation rights against Seller, Lender or their respective Affiliates, or any former or current general or limited partners, stockholders, managers, members, directors, officers, employees, agents and representatives of any of the foregoing with respect to any claim made by any insured thereunder (except for Fraud). No insured party under the R&W Policy shall waive, amend, modify or otherwise revise this subrogation provision, or allow such provision to be waived, amended, modified, or otherwise revised benefitting Shareholder without the prior written consent of Seller the Shareholders’ Representative. 50% of the premium, Taxes and Lendersurplus lines fees, and underwriting fee actually paid by Bxxxx to obtain the R&W Insurance Policy shall be borne by the Company as a Transaction Expense, and all other premiums, underwriting fees and other fees, Taxes and expenses payable in connection with the R&W Insurance Policy shall be paid exclusively by Bxxxx. The Company shall cooperate in good faith with Buyer to provide any assistance and/or information reasonably necessary to procure the final R&W Insurance Policy as reasonably requested in writing by Bxxxx. Buyer shall cause the R&W Insurance Policy to be issued promptly after the Closing in accordance with the terms of the R&W Policy Binder Agreement) and remain in full force and effect thereafter, including complying in all material respects with and maintaining the R&W Insurance Policy in full force and effect, and satisfying on a timely basis all conditions necessary for the continuance of coverage thereunder. During the term of the R&W Insurance Policy, Buyer will not (and will cause its Affiliates not to) terminate, cancel, amend, waive or otherwise modify the R&W Insurance Policy or any of the coverage thereunder (and Buyer and its Affiliates shall not take any action or fail to take any action that could result in the foregoing).