R&W Policy. (a) Purchaser has conditionally bound a representations and warranties insurance policy (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation. (b) Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n). (c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent. (d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interests.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Talos Energy Inc.), Purchase and Sale Agreement (Talos Energy Inc.), Purchase and Sale Agreement (Talos Energy Inc.)
R&W Policy. (a) Purchaser has conditionally bound a representations and warranties insurance policy (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H G (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n2.3(l).
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 5.19 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interests.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Talos Energy Inc.), Purchase and Sale Agreement (Talos Energy Inc.)
R&W Policy. Concurrently with the execution and delivery of this Agreement, Buyers have delivered to Sellers’ Representative a duly executed binder agreement (athe “Binder Agreement”) Purchaser has conditionally bound a by and between Buyers and AIG Specialty Insurance Company, an Illinois corporation, with respect to the delivery of an insurance policy with respect to the representations and warranties insurance policy of Sellers under this Agreement (the “R&W Policy”) pursuant at the Closing, which Binder Agreement shall not be amended in a manner that adversely affects Sellers without the prior written consent of Sellers’ Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided, that the binder agreement which was provided to Seller for review in advance parties hereto agree that any version of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy and Binder Agreement delivered to Sellers’ Representative shall contain: (i) a waiver of subrogationnot include Annex A or Annex B referenced therein. Buyers and its Affiliates shall not amend, contributionwaive, or otherwise by modify the subrogation provision under the R&W Policy in any manner that would allow the insurer in favor thereunder to subrogate or otherwise make or bring any action against the Sellers (other than any claim for Fraud of any Seller). The policy provider of the Seller Indemnified PartiesR&W Policy has agreed that the R&W Policy will expressly provide that the policy provider shall not have the right to, except and will not, pursue any subrogation rights or contribution rights or any other claims against any Seller or any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations Sellers’ Parties in connection with any claim made by any Buyers’ Indemnified Party thereunder, other than for Fraud, and warranties set forth in Article 3 that such provision of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall insurance policy may not be imputed amended without the prior written consent of Sellers’ Representative. Sellers shall pay, cause to any other Seller be paid or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each pay fifty percent (50%) of reimburse Buyers for all costs of obtaining and expenses related to the R&W Policy, specifically including the total premium, surplus lines Taxes and feesunderwriting costs, brokerage commissions, and any related broker compensation other fees and underwriting fees; expenses of such policy, provided that Seller’s share of such costs amounts shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant without duplication to Section 2.3(n)those otherwise included in Transaction Expenses.
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interests.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Tredegar Corp), Purchase and Sale Agreement (Tredegar Corp)
R&W Policy. (a) Purchaser has conditionally bound a representations and warranties insurance policy (the “R&W Policy”) pursuant On or prior to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Closing Date, each Party Parent shall use its commercially reasonable best efforts to satisfy procure the conditions R&W Policy on terms no less favorable to Parents and their Affiliates as the terms set forth in the R&W Conditional Binder Binder. At and as of the Closing, (a) Parents shall deposit the portion of the premium as required under the terms of the R&W Policy in order to bind the insurer issuing the R&W Policy on such date, (b) Parents shall pay the premium balance and all other amounts required under the R&W Policy to be paid to the insurer issuing the R&W Policy in connection with the issuance of the R&W Policy, and (c) Parents shall take all reasonable steps and do all such other acts and things as may be reasonably required in order to ensure that the R&W Policy is issued on or prior to the Closing Date. The R&W Policy Parents shall contain: (i) a waiver pay all applicable due diligence fees at or prior to the Closing in conjunction with the insurer’s underwriting of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” coverage and its non-binding and conditional commitments to provide coverage under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via fees payable to the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(c) Purchaser agrees that after the Closing it will not agree to any amendment of insurance brokerage arranging the R&W Policy that would be expected to cause actual for negotiating and material prejudice to Seller without Seller’s prior written consent.
(d) placing such R&W Policy. Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties Parents shall be entitled to any proceeds from solely responsible for all costs and expenses associated with or payable in connection with obtaining and pursuing coverage under the R&W Policy. Notwithstanding anything The Company shall reasonably cooperate with Parents and the applicable insurance provider in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under connection with obtaining the R&W Policy; provided that the failure of such policy to issue shall not be deemed a breach of such obligation of the Company. Parents shall cause the R&W Policy to contain, as Purchaser believesat all times, a provision pursuant to which the insurers thereunder 1440241.11A-WASSR01A - MSW shall waive any right of subrogation they may have against the Majority Member arising under this Agreement other than in cases of fraud or willful misconduct. Each Parent further agrees that neither it nor any of its sole discretion, Affiliates will consent to be amend any such provision in Purchaser’s intereststhe R&W Policy without the express written consent of the Majority Member.
Appears in 1 contract
Samples: Merger Agreement (Aes Corp)
R&W Policy. (a) Purchaser Xxxxx has conditionally bound executed a representations binder agreement (the “Binder Agreement”), attached as Exhibit G, with respect to a buyer-side representation and warranties insurance warranty policy naming Buyer, the Buyer’s Indemnified Persons and, upon Closing, the Company as “insureds” (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party Buyer shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of Agreement to ensure that the Closing Date. The R&W Policy is or remains fully bound and in full force and effect at Closing. Buyer shall contain: cause the R&W Policy to expressly provide that (i) a the insurer(s) issuing the R&W Policy has waived or otherwise shall not pursue any subrogation, contribution, or other rights against Seller or any of its Affiliates and/or any of their respective past, present, or future Representatives, including any Claims for Losses resulting from, arising out of, or related to any inaccuracy or breach of any representation or warranty made by Seller, except in the case of Fraud by Seller, (ii) that Xxxxx’s Indemnified Persons shall have no obligation to pursue any claim against Seller in connection with any Losses, and (iii) each of Seller, its Affiliates, and their respective past, present, or future Representatives may rely upon and enforce such waiver of subrogation, contribution, and other rights as express third-party beneficiaries of such waiver of subrogation, contribution, and other rights provisions. From and after the issuance of the R&W Policy, Buyer shall not amend, modify, or otherwise by the insurer in favor change, terminate, or waive any provision of the Seller Indemnified PartiesR&W Policy in a manner adverse to Seller, except against Seller its Affiliates, or any “their respective Representatives without the prior written consent of Seller” under . Notwithstanding the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSAforegoing, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) Buyer shall not be imputed (and shall cause its Affiliates to any not) amend, modify, or otherwise change, terminate, or waive a provision regarding the waiver of subrogation, contribution, and other Seller or “rights without the prior written consent of Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Buyer and Seller and Purchaser shall each pay fifty percent (50%) of all costs the cost of obtaining the R&W Policy, specifically the premiumincluding all premiums, surplus lines Taxes and line taxes, premium taxes, underwriting fees, and any related broker compensation brokers’ fees and underwriting fees; provided that Seller’s share commissions, but expressly excluding the costs of legal counsel in negotiating and advising with respect to such costs R&W Policy, whether engaged by Xxxxx, any underwriter, any insurer, or otherwise (the “R&W Policy Costs”). From and after Closing, Buyer shall be paid by Seller via responsible for the adjustment costs of maintaining the Cash Purchase Price pursuant to Section 2.3(n)R&W Policy and for any associated deductible or retention amounts.
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none for the avoidance of doubt, Xxxxx acknowledges and agrees that obtaining the R&W Policy is not a condition for Buyer to proceed to Closing, and Xxxxx shall remain obligated, subject only to the satisfaction or waiver of the Seller Indemnified Parties shall be entitled conditions set forth in Section 8.1 (Conditions to any proceeds from Obligations of All Parties) and Section 8.2 (Conditions to Obligations of Buyer), to consummate the transactions contemplated by this Agreement regardless whether the R&W PolicyPolicy becomes effective. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery The absence of coverage under the R&W Policy, as Purchaser believes, in its sole discretion, Policy or the failure of the R&W Policy to be in Purchaser’s interestsfull force and effect for any reason shall not expand, alter, amend, change, or otherwise affect the liability of Seller, any Affiliate of Seller, or any of their respective Representatives under this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Arcosa, Inc.)
R&W Policy. The Purchaser shall bind the R&W Policy as of the Signing Date. The Purchaser shall cause the R&W Policy to (a) name the Purchaser has conditionally bound a as the insured, (b) insure the Purchaser from any breach, or any failure to be true, of the representations and warranties insurance policy given by the Seller under this Agreement and (c) expressly provide that (i) the “R&W Policy”insurer(s) pursuant to issuing the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of waive or otherwise not pursue any subrogation, contribution, or otherwise by other rights against the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs of its Affiliates or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud any of their respective Representatives, except in the making case of Fraud by such Person, (ii) the representations and warranties set forth in Article 3 Fraud of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicablePerson(s) shall not be imputed to any other Seller or “Person(s), (iii) the Seller” (as applicable); , its Affiliates, and (ii) a statement that each Seller Indemnified Party is an intended third their respective Representatives are express third-party beneficiary beneficiaries of the foregoing waiver of subrogation limitation.
and (biv) the R&W Policy shall not be amended, modified, or otherwise changed in a manner adverse to the Seller or any of its Affiliates or any of their respective Representatives without the prior written consent of the Seller. From and after the Signing Date, the Purchaser shall each pay fifty percent not (50%and shall cause its Affiliates to not) grant any right of subrogation, contribution or other right or otherwise amend, modify, terminate, or waive any term or condition of the R&W Policy in a manner inconsistent with the immediately preceding sentence. The Purchaser shall satisfy, or cause to be satisfied, all conditions to the issuance of the R&W Policy set forth in the R&W Binder that require or contemplate performance by the Purchaser or its Affiliates (or the satisfaction of which are under the reasonable control of the Purchaser or its Affiliates), including the obligation to issue a no claims declarations and timely pay, or cause to be paid, all costs of obtaining and expenses related to the R&W Policy, specifically including the total premium, surplus lines Taxes and feesunderwriting costs, taxes, brokerage commission, and any related broker compensation other fees and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(c) Purchaser agrees that after the Closing it will not agree to any amendment expenses of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consentPolicy.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interests.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Delek Logistics Partners, LP)
R&W Policy. In the event that Buyer or any of its Affiliates obtains a representation and warranty policy in connection with this Agreement (a) Purchaser has conditionally bound a representations and warranties insurance policy (the “R&W Policy”)
(a) pursuant Buyer and its Affiliates shall ensure that any such R&W Policy shall provide that the insurer may not seek to enforce any subrogation right the insurer might have against Parent, its Affiliates or any of their respective Representatives, based upon, arising out of or related to this Agreement, or the negotiation, execution or performance of this Agreement, other than in the case of Fraud (b) neither Buyer nor any of its Affiliates shall enter into any R&W Policy that is inconsistent with the foregoing requirements and (c) each Parent Entity shall, and shall cause the Business Companies to (prior to the binder agreement which was provided Closing Date), use commercially reasonable efforts to Seller provide the insurance company and its Representatives with such information readily available to such Parent Entities and such Business Companies (prior to the Closing Date) and customarily reviewed by insurance companies and their Representatives in connection with issuing policies similar to such R&W Policy; provided, however, that for review purposes of this Section 5.08, each Parent Entity and each Business Company will have complied with its obligations under this Section 5.08 if such information or documentation is available to Buyer in advance the electronic data room established by or on behalf of Parent with respect to the Execution Date and which is attached hereto as Exhibit H transactions contemplated by this Agreement (the “R&W Conditional BinderData Room”). From and after the Execution DateClosing, each Party to the extent requested in writing, Parent shall, and shall cause the other Parent Entities to, at Buyer’s sole cost and expense, use its commercially reasonable reasonably efforts to satisfy the conditions set forth cooperate with Buyer in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer good faith in favor of the Seller Indemnified Parties, except against Seller or connection with any “Seller” claim made under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 Buyer and its Affiliates shall not amend, waive or otherwise modify any R&W Policy in any manner that would allow the insurer thereunder or any other Person to subrogate or otherwise make or bring any Action against Parent, its Affiliates or any of their respective Representatives, based upon, arising out of or related to this Agreement, or the contrarynegotiation, nothing herein execution or performance of this Agreement, other than in the case of Fraud. Buyer shall be interpreted solely responsible for all costs to limit Purchaser’s rights to procure, maintain and make or pursue claims, or secure recovery claims under the any R&W Policy, as Purchaser believesincluding all premiums, in its sole discretionretention amounts, to be in Purchaser’s interestsdeductibles, taxes, expenses and costs of any nature whatsoever.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Sonoco Products Co)
R&W Policy. The Purchaser shall obtain and conditionally bind the R&W Policy as of the date hereof. The Purchaser shall cause the R&W Policy to (a) name the Purchaser has conditionally bound a as the insured, (b) insure the Purchaser from any breach, or any failure to be true, of the representations and warranties insurance policy (given by the “R&W Policy”) pursuant Seller or the Company to the binder agreement which was provided to Seller for review in advance of the Execution Date Purchaser under this Agreement and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: c) expressly provide that (i) a waiver of the insurer(s) issuing such policy shall waive or otherwise not pursue any subrogation, contribution, or otherwise by the insurer in favor of other rights against the Seller Indemnified or any of its Affiliates and/or any of its Non-Recourse Parties, except against in the case of losses directly resulting from Fraud by the Seller or the Company, in which case the insurer may subrogate against the Seller, (ii) the losses directly resulting from Fraud of any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicablePerson(s) shall not be imputed to any other Seller or “Person(s), (iii) the Seller” (as applicable); , its Affiliates, and (ii) a statement that each Seller Indemnified Party is an intended third its Non-Recourse Parties are express third-party beneficiary beneficiaries of the foregoing subrogation limitation.
waiver of subrogation, and (biv) Seller the R&W Policy shall not be amended, modified or otherwise changed in a manner adverse to the Seller, its Affiliates and its Non-Recourse Parties without the prior written consent of the Seller. From and after the date hereof, the Purchaser shall each pay fifty percent not (50%and shall cause its Affiliates to not) grant any right of subrogation, contribution or other right or otherwise amend, modify, terminate or waive any term or condition of the R&W Policy in a manner inconsistent with the immediately preceding sentence. The Purchaser shall timely pay, or cause to be paid, all costs of obtaining and expenses related to the R&W Policy, specifically including the total premium, surplus lines Taxes underwriting costs, Taxes, brokerage commission and fees, other fees and any related broker compensation and underwriting fees; provided that Seller’s share expenses of such costs shall be paid by Seller via policy, including the adjustment of the Cash Purchase Price pursuant to Section 2.3(n)retention.
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interests.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Delek US Holdings, Inc.)
R&W Policy. Purchaser shall obtain and conditionally bind the R&W Policy as of the Signing Date. Purchaser shall cause the R&W Policy (a) to name Purchaser has conditionally bound a as the insured, (b) insure Purchaser from any breach, or any failure to be true, of the representations and warranties insurance policy given by Seller under this Agreement, and (c) expressly provide that (i) the “R&W Policy”insurer(s) pursuant to issuing the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of waive or otherwise not pursue any subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except other rights against Seller or any “Seller” under the Other PSAs of its Affiliates or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud any of their respective Representatives, except in the making case of Losses resulting from Fraud by such Person, (ii) the representations and warranties set forth in Article 3 Fraud of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicablePerson(s) shall not be imputed to any other Seller or “Person(s), (iii) Seller” (as applicable); , its Affiliates, and (ii) a statement that each Seller Indemnified Party is an intended third their respective Representatives are express third-party beneficiary beneficiaries of the foregoing subrogation limitation.
waiver of subrogation, and (biv) the R&W Policy shall not be amended, modified, or otherwise changed in a manner adverse to Seller or any of its Affiliates or any of their respective Representatives without the prior written consent of Seller. From and after the Signing Date, Purchaser shall each pay fifty percent not (50%and shall cause its Affiliates not to) grant any right of subrogation, contribution or other right or otherwise amend, modify, terminate, or waive any term or condition of the R&W Policy in a manner inconsistent with the immediately preceding sentence. Purchaser shall timely pay, or cause to be paid, all costs of obtaining and expenses related to the R&W Policy, specifically including the total premium, surplus lines Taxes and feesunderwriting costs, taxes, brokerage commission, and any related broker compensation other fees and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(c) Purchaser agrees that after the Closing it will not agree to any amendment expenses of the R&W Policy that would including any self- retention amounts. For the avoidance of doubt, the representations and warranties of Seller in this Agreement and the other Transaction Documents (other than the Seller Fundamental Representations) shall not survive the Closing and the R&W Policy shall be expected to cause actual and material prejudice to Seller without Purchaser’s sole remedy for any claim for breaches of Seller’s prior written consent.
(d) Notwithstanding anything to the contrary representations or warranties in this Agreement, none of Agreement or the other Transaction Documents (other than the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interestsFundamental Representations).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Delek US Holdings, Inc.)
R&W Policy. On or prior to the date hereof, the Acquiror (aor an Affiliate thereof) Purchaser has conditionally bound delivered to the API Representative a representations copy of the binder agreement to the R&W Policy, along with a copy of the substantially final form of the R&W Policy to be issued in the name of and warranties insurance policy for the benefit of Acquiror (or an Affiliate thereof, as applicable). The Acquiror shall bear the premium, underwriting fee, and Taxes and other directly related expenses due and payable pursuant to the terms of the R&W Policy (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional BinderPolicy Expenses”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each Acquiror Parties will promptly pay fifty percent (50%) of all costs of obtaining the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual Expenses when due and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery payable under the R&W Policy, as Purchaser believesand will use commercially reasonable efforts to take, in its sole discretion, or cause to be taken, all actions reasonably necessary to cause the R&W Policy to become effective and to comply in Purchaserall material respects with its obligations under the R&W Policy including requiring final issuance of such R&W Policy. There shall be no subrogation against the API Entities or their Affiliates or representatives for any claims made by Acquiror or any other Person under the R&W Policy, except in the event of Fraud. Without the API Representative’s interestsprior written consent (such consent to not be unreasonably conditioned, delayed or withheld), the Acquiror Parties shall not amend the provisions of the R&W Policy in any manner that would be materially prejudicial to or would increase the liability of the API Entities or Alabama Partners hereunder. The Companies, the API Representative and API Entities shall use commercially reasonable efforts to cooperate with the underwriting, binding and issuance of the R&W Policy, including with respect to executing a customary inception no-claims declaration and a customary closing no-claims declaration as the underwriter of the R&W Policy may require.
Appears in 1 contract
Samples: Transaction Agreement (TPG Inc.)
R&W Policy. (a) Purchaser Concurrently with the execution and delivery of this Agreement, Buyer has conditionally obtained and bound a representations and warranties insurance policy (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is Policy attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or G with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth of Seller in Article 3 of this Agreement and the other matters covered by such policy and which expressly provides that (i) the insurer under the R&W Policy has no subrogation rights, and will not pursue any claim against Seller, its Subsidiaries, any of their respective Representatives or any of their respective successors and assigns except in the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSAcase of fraud, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) Seller is a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing no subrogation limitation.
provisions of the R&W Policy described in clause (bi), (iii) Seller and Purchaser shall each pay fifty percent (50%) following the date of all costs of obtaining the R&W Policy, specifically Buyer may not modify the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(cprovision(s) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy in respect of the no subrogation provisions described in clause (i) or in any manner that would allow the insurer thereunder or any other Person to subrogate or otherwise make or bring any Action against Seller, its Subsidiaries, any of their respective Representatives or any of their respective successors and assigns except in the case of fraud, in each case without Seller’s prior written consent (which consent may be expected withheld in Seller’s sole discretion), and (iv) Buyer is not required to cause actual pursue remedies against Seller or any of its Subsidiaries or any of their respective Representatives or any of their respective successors or assigns prior to or as a condition to making a claim under such R&W Policy. In furtherance, and not in limitation of the foregoing, Buyer shall not permit the R&W Policy to be amended or modified in a manner that adversely affects Seller or any of its Subsidiaries or any of their respective Representatives or any of their respective successors and assigns in any material prejudice to Seller respect without Seller’s prior written consent. The premium for such policy shall be paid by Buyer.
(db) Notwithstanding The Parties acknowledge and agree that Buyer is acquiring the R&W Policy in connection with the consummation of the transactions contemplated hereby, and notwithstanding anything in this Agreement to the contrary contrary, Buyer acknowledges and agrees, on behalf of itself and its Affiliates, that, following the Closing, except in the case of Fraud, (i) neither Seller nor any of its Subsidiaries nor Representatives shall have any Liability for any breach or inaccuracy of any representation or warranty contained in this Agreement, none and (ii) Buyer’s and its Subsidiaries’ sole and exclusive remedy in the event of the Seller Indemnified Parties any breach or inaccuracy of any representation or warranty shall be entitled to any proceeds from file a claim under the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to For the contraryavoidance of doubt, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery the absence of coverage under the R&W PolicyPolicy for any reason, as Purchaser believes, in its sole discretion, including due to exclusions from coverage thereunder or the failure of the R&W Policy to be in Purchaserfull force and effect for any reason, shall not expand, alter, amend, change or otherwise affect Seller’s interestsor its Subsidiaries’ or any of their respective Representatives’ or any of their respective successors and assigns’ Liability under this Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
R&W Policy. (ai) Purchaser has conditionally bound a Buyer and Sellers acknowledge that Buyer is obtaining (at Sellers' sole cost) the R&W Policy for purposes of certain coverage of Losses related to the Tax Indemnity, the Capitalization Indemnity, breaches by Sellers of representations and warranties insurance policy (including, without limitation, the “Seller Fundamental Representations and fraud) and the related indemnification obligations of Sellers contained in this Agreement. Sellers acknowledge that Buyer is entering into the R&W Policy and that, in connection therewith, a Buyer Indemnified Person may make claims for the same Losses or series of related Losses under both this Article VIII and the R&W Policy”) , subject, however, to the limitations provided for in this Article VIII; provided, that in no event may a Buyer Indemnified Person recover amounts from Sellers and pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver aggregating an amount in excess of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or its Losses with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud claim. Nothing in the making of the representations and warranties set forth in Article 3 of this Agreement (or shall limit the corresponding article setting forth right of any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed Buyer Indemnified Person to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from make claims against the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to For purposes of clarity, as between any Buyer Indemnified Person, on the contraryone hand, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery and the insurer under the R&W Policy, on the other hand, none of the terms, limitations, conditions and restrictions (including time for asserting claims or the procedures required by Sections 8.4 and 8.5 hereof) on indemnification set forth in this Article VIII or elsewhere in this Agreement (including Sections 6.5 and 6.7) shall affect the rights of the Buyer Indemnified Persons under the R&W Policy, which rights shall be governed solely thereby. Sellers and Sellers' Representative shall assist and cooperate with Buyer in a commercially reasonable manner in connection with any claim by Buyer under, or recovery by Buyer with respect to, the R&W Policy, upon Buyer's specific written request (to avoid doubt, Sellers and the Sellers' Representative have no duty to submit or alert Buyer to submit notices of claims under the R&W Policy or to make or join in any demand, settlement negotiation, litigation, or other action or proceeding under or in relation to the R&W Policy). To avoid doubt, the ordering of payments provided in Section 8.8(a) is absolute. Any such payment made under the R&W Policy as Purchaser believesthere required shall be final and Sellers shall not be obligated, in its sole discretionsolely on account of such a payment, to make any payment or reimbursement to any Buyer Indemnified Party or to the insurer under the R&W Policy, through subrogation or otherwise (except for claims against any Sellers for common law fraud committed by such Sellers).
(ii) Sellers acknowledge and agree that the denial of any fraud claim by any Buyer Indemnified Person under the R&W Policy shall not be construed as, or used as evidence that, such Buyer Indemnified Person is not entitled to indemnification under this Article VIII. As between Sellers and the Buyer Indemnified Parties, except for common law fraud claims, the Buyer Indemnified Parties bear all risk of (i) the insurer's insolvency or its breach of the R&W Policy, (ii) except where primarily attributable to actions or omissions of Sellers or the Sellers' Representative in Purchaser’s interestsbreach of their obligation of cooperation under Section 8.8(d)(i), the failure of the Buyer Indemnified Parties to file notices of claims that are timely and sufficient under the R&W Policy, or (iii) the insurer's failure to make any payments to any of the Buyer Indemnified Parties under the R&W Policy or other denial of coverage for any reason.
Appears in 1 contract
Samples: Membership Interest and Warrant Purchase Agreement (Hibbett Sports Inc)
R&W Policy. (a) Purchaser has conditionally bound a representations Following the date hereof, Parent shall take, and warranties insurance policy (shall cause its Affiliates to take, all action necessary to obtain and bind the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance Policy as of the Execution Date Closing or, with respect to any Delayed Consent Subsidiary, any other date(s) mutually agreed by Parent and Seller Representative, which is attached hereto shall contain substantially the same terms and conditions as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder Policy attached hereto as Exhibit F. The Company shall use commercially reasonable efforts to provide, and shall use commercially reasonable efforts to cause its controlled Affiliates to provide, such cooperation as Parent shall reasonably request in connection with obtaining and binding the R&W Policy as of the Closing Dateor the applicable agreed date(s). The Following the Closing, Parent shall not, and shall cause its Affiliates (including, after the Closing, the Acquired Companies) not to, amend, restate, supplement, modify or alter the R&W Policy shall contain: (ior waive any terms thereof) a waiver in any manner that is adverse to or that results or could reasonably be expected to result in any incremental liability to any Security Holder or any of subrogationits equityholders, contributionofficers, or otherwise by the insurer in favor directors, managers, employees, counsel, accountants, financial advisors and consultants and each of the Seller Indemnified Partiesheirs, except against Seller or executors, successors and permitted assigns of any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) without the prior written consent of Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining Representative; provided, that the R&W Policy, specifically and any other representation and warranty insurance policy acquired or otherwise obtained by Parent or any of its Affiliates in connection with the premiumTransactions, surplus lines Taxes and feesshall in all cases prohibit the insurer(s) thereunder or any other Person from subrogating or otherwise making or bringing, and shall require such insurer(s) to waive and not pursue, any related broker compensation and underwriting fees; provided that Seller’s share claim against any Security Holder or any Affiliate of such costs shall be paid by Seller via the adjustment any Security Holder or any past, present or future equityholder, member, partner, director, manager, officer, employee or advisor of any of the Cash Purchase Price pursuant foregoing based upon, arising out of, or related to Section 2.3(n).
this Agreement, or the negotiation, execution or performance of this Agreement or the Transactions. Parent and the Company (cas a Transaction Expense) Purchaser agrees that after shall each pay, or cause to be paid, one-half of all costs and expenses due at or prior to the Closing it will not agree related to any amendment of the R&W Policy that would to be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none issued as of the Seller Indemnified Parties shall be entitled Closing, including the total premium, underwriting costs, brokerage commission for Parent’s broker, Taxes related to any proceeds from the such R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W PolicyPolicy and other fees and expenses of such policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interestsand when due.
Appears in 1 contract
R&W Policy. (a) Purchaser Concurrently with the execution of this agreement, Parent has conditionally obtained the bound a representations and warranties insurance policy (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance Policy dated as of the Execution Date date of this Agreement and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions reasonably necessary to satisfy as promptly as reasonably practicable thereafter any conditions to the conditions issuance and effectiveness of the R&W Policy. The R&W Policy includes (i) an express waiver of subrogation and contribution rights against the Company, the Equityholders, each of their Affiliates and their respective employees, directors, managers and officers, except and only in the event of Fraud and then only against the Person committing such Fraud, and (ii) express third party beneficiary rights in favor of the Equityholder Indemnified Parties with respect to such anti-subrogation provisions. The premium, underwriting fees and other fees or expenses incurred or to be incurred in connection with procuring the R&W Policy shall be borne and paid equally between Parent, on the one hand, and the Stockholders, on the other hand (with such amounts to be deducted from the Closing Date Merger Consideration). The Company shall reasonably cooperate with the Parent in connection with the Parent’s efforts to obtain the R&W Policy.
(b) During the term of the R&W Policy, Parent (i) shall (and shall cause its Affiliates, including the Surviving Companies, to) maintain the R&W Policy in full force and effect and (ii) shall not (and shall cause its Affiliates, including the Surviving Companies, to not) (A) amend, modify, terminate, or waive the waiver of subrogation set forth in the R&W Conditional Binder as Policy without the consent of the Closing DateStockholder’s Representative (B) take any action or omit to take any action that would result in the cancellation, termination, amendment or modification of the R&W Policy 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 Policy other than as allowed by the terms of the R&W Policy. The parties hereto acknowledge and agree that the failure by Parent to obtain the R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer Closing and/or to maintain the R&W Policy in favor accordance with this Section 5.5 shall not in any manner increase the liability of the Seller Indemnified Parties, except against Seller or any “Seller” Company otherwise applicable under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud provisions in Article VII hereof and, in the making event of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed such failure to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining obtain the R&W Policy, specifically and notwithstanding Section 5.5(a), the premium, surplus lines Taxes Company and fees, and the Equityholders shall not be obligated to bear any related broker compensation and underwriting fees; provided that Seller’s share of costs to purchase such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n)insurance policy.
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interests.
Appears in 1 contract
R&W Policy. (a) Purchaser has conditionally bound a representations Parent and warranties insurance policy (the “R&W Policy”) pursuant Merger Sub acknowledge and agree that Parent shall be responsible for all fees, expenses and premiums relating to the binder agreement which was provided to Seller for review in advance of the Execution Date R&W Policy other than such fees, expense and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Datepremiums that constitute a Company Transaction Expense. The R&W Policy shall contain: (i) contain a waiver of subrogation, contribution, or otherwise subrogation by the insurer in favor of the Seller Indemnified PartiesAcquired Companies, except against Seller or the Unitholders, the Blocker Parent and any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary Affiliates of the foregoing subrogation limitation.
(bincluding any past, present or future director, manager, officer, employee or advisor of any of the foregoing) Seller in connection with this Agreement and Purchaser the transactions contemplated hereunder except solely in the case of Fraud. Prior to the Closing, Parent shall each pay fifty percent (50%) not amend, modify, or waive any provision of all costs of obtaining the R&W Policy, specifically including the premiumapplicable binder agreement, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via without the adjustment express written consent of the Cash Purchase Price pursuant Company and the Blocker Parents (which consent shall not be unreasonably withheld conditioned or delayed). In connection with the Closing, Parent shall take all actions reasonably necessary to Section 2.3(n).
(c) Purchaser agrees that after cause the Closing it will not agree conditions to any amendment the issuance of the R&W Policy that would to be expected satisfied, and to cause actual the R&W Policy to be issued, including with respect to Parent paying all fees, costs, and material prejudice to Seller without Seller’s prior written consent.
expenses due with respect thereto (d) Notwithstanding anything to the contrary including premium, due diligence fees, surplus line fees and insurance broker fees owing in this Agreement, none respect of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy), delivering all documents, instruments, certificates and other information required to be delivered thereunder, and participating in “bring down” due diligence conferences. Notwithstanding anything in this Section 5.18 or otherwise to Parent shall provide the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under Securityholders’ Agent and Blocker Parents a true and complete copy of the final R&W Policy as soon as reasonably practicable following the Closing. From and after the issuance of the R&W Policy, as Purchaser believesParent shall not amend, modify, or otherwise waive such subrogation provisions of the R&W Policy in its sole discretiona manner adverse to Unitholders, to be in Purchaser’s intereststhe Blocker Parents or any of Affiliates of the foregoing without the prior written consent of the Securityholders’ Agent.
Appears in 1 contract
Samples: Merger Agreement (RealPage, Inc.)
R&W Policy. (a) Purchaser has conditionally bound a representations Concurrently with the execution and warranties insurance policy (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance delivery of the Execution Date Original Agreement, Buyer had obtained and which is bound the R&W Policy attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or F with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth of Seller in Article 3 the Original Agreement and the other matters covered by such policy and which expressly provides that (i) the insurer under the R&W Policy has no subrogation rights, and will not pursue any claim against Seller, its Subsidiaries, any of this Agreement (their respective Representatives or any of their respective successors and assigns except in the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSAcase of fraud, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) Seller is a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing no subrogation limitation.
provisions of the R&W Policy described in clause (bi), (iii) Seller and Purchaser shall each pay fifty percent (50%) following the date of all costs of obtaining the R&W Policy, specifically Buyer may not modify the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(cprovision(s) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy in respect of the no subrogation provisions described in clause (i) or in any manner that would allow the insurer thereunder or any other Person to subrogate or otherwise make or bring any Action against Seller, its Subsidiaries, any of their respective Representatives or any of their respective successors and assigns except in the case of fraud, in each case without Seller’s prior written consent (which consent may be expected withheld in Seller’s sole discretion), and (iv) Buyer is not required to cause actual pursue remedies against Seller or any of its Subsidiaries or any of their respective Representatives or any of their respective successors or assigns prior to or as a condition to making a claim under such R&W Policy. In furtherance, and not in limitation of the foregoing, Buyer shall not permit the R&W Policy to be amended or modified in a manner that adversely affects Seller or any of its Subsidiaries or any of their respective Representatives or any of their respective successors and assigns in any material prejudice to Seller respect without Seller’s prior written consent. The premium for such policy shall be paid by Buyer.
(db) Notwithstanding The Parties acknowledge and agree that Buyer acquired the R&W Policy in connection with the consummation of the transactions contemplated hereby, and notwithstanding anything in this Agreement to the contrary contrary, Buyer acknowledges and agrees, on behalf of itself and its Affiliates, that, following the Closing, except in the case of Fraud, (i) neither Seller nor any of its Subsidiaries nor Representatives shall have any Liability for any breach or inaccuracy of any representation or warranty contained in this AgreementAgreement (excluding the representations in Section 2.14(a) and Section 2.14(e)), none and (ii) Buyer’s and its Subsidiaries’ sole and exclusive remedy in the event of the Seller Indemnified Parties any breach or inaccuracy of any representation or warranty shall be entitled to any proceeds from file a claim under the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to For the contraryavoidance of doubt, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery the absence of coverage under the R&W PolicyPolicy for any reason, as Purchaser believes, in its sole discretion, including due to exclusions from coverage thereunder or the failure of the R&W Policy to be in Purchaserfull force and effect for any reason, shall not expand, alter, amend, change or otherwise affect Seller’s interestsor its Subsidiaries’ or any of their respective Representatives’ or any of their respective successors and assigns’ Liability under this Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
R&W Policy. (a) Purchaser has conditionally bound a representations The Buyer shall pay the cost of the premium and warranties insurance policy other costs of procuring the R&W Policy and any other fees, costs or deductibles associated with the R&W Policy (collectively, the “R&W Policy Fees”), provided that pursuant to Section 1.04(a)(v), the Seller is hereby reimbursing (or causing to be reimbursed) the Buyer for the cost of the premium of the R&W Policy in an amount set forth in Section 6.13(a) of the Seller Disclosure Letter (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional BinderReimbursement Amount”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in The Buyer is acquiring the R&W Conditional Binder as Policy in connection with the consummation of the Closing Date. The R&W Policy shall contain: transactions contemplated hereby, and notwithstanding anything in this Agreement to the contrary, the Buyer acknowledges and agrees, on behalf of itself and its Affiliates, that following the Closing, but without limiting recourse for Fraud, (i) a waiver of subrogation, contribution, or otherwise by the insurer in favor of neither the Seller Indemnified Parties, except against Seller nor any of its Affiliates or Representatives will have any “Seller” under the Other PSAs liability for any breach or with respect to such Seller’s inaccuracy of any representation or “Seller’s” (as applicable) actual and intentional fraud warranty contained in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary the Buyer’s and its Subsidiaries’ sole and exclusive remedy in the event of any breach or inaccuracy of any representation or warranty of the foregoing subrogation limitationSeller in Article III or the Parent in Article IV of this Agreement or any certificate delivered pursuant to this Agreement or any other representations and warranties provided in connection with this Agreement will be to file a claim under the R&W Policy. The absence of coverage under the R&W Policy for any reason, including due to exclusions from coverage thereunder or the failure of the R&W Policy to be in full force and effect for any reason, will not expand, alter, amend, change or otherwise affect the Seller’s or any of its Affiliates’ or Representatives’ or any of their respective successors and assigns’ liability under this Agreement.
(b) Concurrently with the execution and delivery of this Agreement, the Buyer has obtained and bound the R&W Policy attached hereto as Exhibit A with respect to the representations and warranties of the Seller and Purchaser shall each pay fifty percent the Parent in this Agreement and the other matters covered by such policy and which expressly provides that, other than in the case of Fraud, the insurer under the R&W Policy has no subrogation rights, and will not pursue any claim against the Seller or any of its Affiliates or Representatives or any of their respective successors and assigns, the Seller is a third-party beneficiary of the no subrogation provisions of the R&W Policy described in clause (50%) i), following the date of all costs of obtaining the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via Buyer may not modify the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(cprovision(s) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy in respect of the no subrogation provisions described in clause (i) or in any manner that would be expected allow the insurer thereunder or any other Person to cause actual subrogate or otherwise make or bring any action against the Seller or any of its Affiliates or Representatives or any of their respective successors and material prejudice to Seller assigns (other than in the case of Fraud), in each case of this clause (iii) without the Seller’s prior written consent.
consent (dwhich consent may be withheld in the Seller’s sole discretion), and (iv) Notwithstanding anything the Buyer is not required to pursue remedies against the contrary Seller or any of its Affiliates or Representatives or any of their respective successors or assigns prior to or as a condition to making a claim under such R&W Policy and the Buyer shall not permit the provisions of the R&W Policy described in this Agreement, none of clause (iv) to be amended or modified in a manner that adversely affects the Seller Indemnified Parties shall or any of its Affiliates or Representatives or any of their respective successors and assigns without the Seller’s prior written consent (which consent may be entitled to any proceeds from withheld in the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit PurchaserSeller’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interests).
Appears in 1 contract
Samples: Asset Purchase Agreement (Forum Energy Technologies, Inc.)
R&W Policy. (a) Purchaser has conditionally bound a representations and warranties insurance policy (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached Attached hereto as Exhibit H (D is an executed, accurate and complete copy of the “Binder Agreement, which includes as an exhibit an accurate and complete copy of the R&W Conditional Binder”)Policy. From Buyer has delivered to the applicable insurance broker, for release as of the Closing to the Insurer and/or managing general underwriter(s) under the R&W Policy, instructions to bind the R&W Policy in accordance with the terms and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder Agreement. Except as of the Closing Date. The R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties expressly set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSABinder Agreement, as applicable), it being understood that there are no conditions precedent to the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary obligation of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining Insurer to issue the R&W Policy. There are no side letters or other agreements, specifically contracts or arrangements relating to the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(c) Purchaser agrees that after the Closing it will not agree to any amendment issuance of the R&W Policy in accordance with the Binder Agreement. To Buyer’s knowledge, there is no fact or occurrence as of the date of this Agreement that would could reasonably be expected to cause actual the conditions to the issuance of the R&W Policy not to be satisfied at or before the Closing, and material prejudice Buyer has no reason to Seller without believe that it will be unable to satisfy on a timely basis any term or condition to be satisfied by it contained in the Binder Agreement. The Binder Agreement has not been amended, restated or otherwise modified or waived on or prior to the date of this Agreement and the commitments of the Insurer contained in the Binder Agreement have not been withdrawn, modified or rescinded on or prior to the date of this Agreement. On or prior to the date of this Agreement, Buyer has delivered to the Insurer (with a copy to Seller’s prior written consent.
(d) an inception no claims declaration in the form required to be delivered in accordance with the Binder Agreement and has paid in full any and all premiums or other fees or expenses required to be paid pursuant to the terms of the Binder Agreement. Notwithstanding anything to the contrary in this Agreement, none Buyer acknowledges and agrees that issuance of the Seller Indemnified Parties R&W Policy is not a condition to Buyer’s obligations to consummate the transactions contemplated by this Agreement, and Buyer shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise remain obligated, subject only to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, conditions in its sole discretionArticle VI, to be in Purchaser’s interestsconsummate the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kingsway Financial Services Inc)
R&W Policy. (a) Purchaser has conditionally bound Prior to the Closing, the Acquired Companies shall cooperate with the Buyer as reasonably required for the Buyer to negotiate and procure a representations standalone buyer-side representation and warranties warranty insurance policy (the “R&W Policy”) pursuant to the binder agreement ), which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver insure the Buyer for Losses resulting from any breach or inaccuracy of subrogationany representation or warranty of the Sellers, contributionNewCos, or otherwise by any Acquired Companies hereunder. The Buyer shall cause the R&W Policy to expressly provide that (a) the insurer in favor of thereunder waives and agrees not to pursue, directly or indirectly, any subrogation rights against the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or Group (other than in connection with Fraud) with respect to such Seller’s or “Seller’s” any claim made by any insured thereunder, (as applicableb) actual and intentional fraud in the making of insurer thereunder agrees to cause the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood R&W Policy to provide that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) Group is a statement that each Seller Indemnified Party is an intended third party beneficiary of such waiver, and (c) the foregoing subrogation limitation.
insurer thereunder agrees that Buyer shall have no obligation to pursue any claim against the Seller Group (bother than in connection with Fraud) in connection with any loss thereunder. The Buyer shall provide the Representative with a reasonable opportunity to review and provide reasonable comments to the R&W Policy prior to binding coverage. Buyer shall not (whether prior to, or following, the Closing) amend, terminate or modify the R&W Policy in a manner that would adversely affect the Seller Group without the prior written consent of the Representative. Buyer, on behalf of itself and Purchaser each other Buyer Indemnified Party, further acknowledges and agrees that the provisions of Section 11.13 and Section 11.14 shall each pay fifty percent apply regardless of whether (50%i) of all costs of obtaining Buyer obtains the R&W Policy at all, (ii) Buyer obtains, before, at or following the Closing or maintains following the Closing the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(ciii) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
is revoked, cancelled, or modified in any manner after issuance, or (div) Notwithstanding anything to the contrary in this Agreement, none any of the Seller Buyer Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery makes a claim under the R&W PolicyPolicy and such claim is denied by the insurer. For the avoidance of doubt, as Purchaser believes, in its sole discretion, the Buyer acknowledges and agrees that obtaining the R&W Policy is not a condition to be in Purchaser’s interestsClosing for the Buyer.
Appears in 1 contract
Samples: Equity Purchase Agreement (Caseys General Stores Inc)
