RWI Policy. Following the Closing, Buyer’s right to assert claims under the RWI Policy shall be the Buyer Indemnified Parties’ sole and exclusive remedy for any Covered Losses arising from any breach or inaccuracy of the representations and warranties contained in Article III or Article IV of this Agreement (other than the Seller Fundamental Representations and the Tax Representations), and no Seller Party shall have any liability therefor; provided, however, that nothing set forth in this Article X shall preclude or limit Buyer’s or its Affiliates’ ability to file claims under the RWI Policy; and provided, further that the Buyer Indemnified Parties shall be entitled to recover directly from Seller those Covered Losses arising out of any breach or inaccuracy of the Seller Fundamental Representations or the Tax Representations, in each case to the extent such Covered Losses are in excess of, or otherwise excluded from, the coverage provided under the RWI Policy. Buyer acknowledges and agrees that the Buyer Indemnified Parties shall be responsible for all retention amounts under the RWI Policy. Subject to any retention amount thereunder, and the other terms and conditions thereunder, the Buyer Indemnified Party shall use reasonable best efforts to seek to obtain payment under the RWI Policy with respect to any breach or inaccuracy of the Fundamental Representations and the Tax Representations, and the RWI Policy shall be Buyer’s first source of payment for any Covered Losses covered by the RWI Policy (such that, while a claim may be made (and pursued) concurrently against both the RWI Policy and the Indemnifying Parties hereunder, an Indemnifying Party will not be obligated to make payment to the Buyer Indemnified Parties with respect to a Covered Loss that is payable under the RWI Policy until the insurers under the RWI Policy have notified Buyer in writing that they will not pay such Covered Loss, whether in whole or in part, to the Buyer Indemnified Parties, whether pursuant to the terms of such policy or for any other reason). Notwithstanding the foregoing and for the avoidance of doubt, any Covered Losses with respect to the Seller Fundamental Representations or the Tax Representations not paid to Buyer under the RWI Policy, whether due to a Covered Loss being excluded from such policy or in excess of the coverage thereunder, shall not be subject to the limitation contained in this Section 10.02 and shall be fully recoverable by the Buyer Indemnified Parties pursua...
RWI Policy. Purchaser shall obtain a conditionally bound representations and warranty insurance policy in respect of the representations and warranties contained in this Agreement or any certificate delivered in connection with this Agreement (the “RWI Policy”) and use reasonable best efforts to ensure that the conditions in the binder of such RWI Policy are met such that the RWI Policy will remain effective from and after Closing. The fees, costs, and expenses, including the premium, underwriting costs, brokerage fees, and commissions to obtain the RWI Policy (the “RWI Fees”) shall be borne equally by the Stockholders, on the one hand, and Parent, on the other hand; provided that the Stockholders shall bear 100% of all such fees, costs and expenses attributable to any excess fundamental coverage policy procured by Purchaser as part of the RWI Policy (the aggregate RWI Fees to be borne by Stockholders, the “Stockholder Share RWI Fees”). Purchaser has provided the Stockholders with a reasonable opportunity to review and provide comments to the RWI Policy prior to binding coverage. Purchaser shall ensure that the RWI Policy contains a waiver by the insurer of the insurer’s rights to bring any claim against any Stockholder and any of their respective Affiliates, and its and their respective directors, managers, officers, and employees by way of subrogation, claim for contribution, or otherwise (other than in the case of Fraud), and that such Persons shall be third-party beneficiaries of such waiver. No insured party under the RWI Policy will waive, amend, modify, or otherwise revise such subrogation provision in any manner that is prejudicial in any material respect to such Person, or allow such provision to be waived, amended, modified, or otherwise revised without the prior written consent of the Stockholders’ Representative. From and after the date of this Agreement until the Closing, the Company shall use commercially reasonable efforts to cooperate with Purchaser, and shall take such other actions as Purchaser may reasonably request and which are customary for a buyer-side transaction risk insurance policy (in each case, to the extent within the control of the Company), in order to assist Purchaser in obtaining and maintaining the RWI Policy, and following the Closing, RemainCo shall use commercially reasonable efforts to cooperate as requested by Purchaser in connection with any claim under the RWI Policy. Notwithstanding anything to the contrary in this Agreement,...
RWI Policy. The Target Companies shall use commercially reasonable efforts to cooperate with Purchaser in connection with Purchaser’s procurement of a buyer-side representation and warranty insurance policy (collectively, the “RWI Policy”), including responding to reasonable requests for information from the underwriter necessary to obtain the RWI Policy and, no later than ten (10) Business Days following the Closing, the Equityholder Representative shall or shall cause the applicable Representative of the Company to deliver to Purchaser three (3) digital USB copies of all contents of the Data Room (or such other electronic method as agreed by Purchaser and Representative), as of the end of the day that is one (1) day immediately preceding the Closing Date (which shall include, for the avoidance of doubt, all contents that were located in, or uploaded to, Data Room at any time prior to the Closing). The premium payable to the underwriters in respect of the RWI Policy, and all other expenses, fees, costs or deductibles associated therewith, shall be borne by Purchaser. Purchaser shall cause the RWI Policy to expressly provide that the policy provider shall not have the right to, and will not, pursue any subrogation rights against any Equityholder, its Affiliates or any of its direct or indirect equity holders, as applicable, in connection with any claim made by Purchaser or any of its Affiliates thereunder, except in the case of Fraud. Purchaser agrees to not amend the RWI Policy following the Closing in a manner that would adversely affect the rights of the Equityholders or their respective Affiliates set forth herein without the prior written consent of Equityholder Representative.
RWI Policy. Acquiror shall pay the premium and all other costs required for issuance of the RWI Policy at Closing. The RWI Policy shall include a provision whereby insurer expressly waives, and agrees not to pursue, directly or indirectly, any subrogation rights against the Holder Representative or any Holder with respect to any claim made by any insured thereunder (except for intentional fraud in connection with the transaction by that Holder or Holder Representative).
RWI Policy. Buyer has obtained a representation and warranty insurance policy with a policy limit of ten percent (10%) of the Purchase Price (the “RWI Policy”). The total policy premium, brokerage commission, underwriting and stamping fees and Taxes payable, in each case, in connection with the purchase of the RWI Policy (collectively, the “RWI Expenses”), shall be borne by Seller and reduce the Purchase Price as set forth herein.
RWI Policy. Parent may obtain after the date hereof (and not as a condition to Closing), and with the commercially reasonable assistance of the Company, at Parent’s sole cost and expense, a buyer-side representation and warranty insurance policy from an insurance provider (the “RWI Policy”).
RWI Policy. Acquirer may obtain at its expense a buy-side representations and warranties policy (the “RWI Policy”). Prior to the Closing, the Company shall provide to Acquirer and its Representatives such cooperation reasonably requested by Acquirer that is necessary to obtain the RWI Policy, including by assisting Acquirer in providing information as may reasonably be requested by any insurance broker or insurance carrier.
RWI Policy. Buyer shall cause the RWI Policy to be fully bound and issued as of the Closing, including paying when due all premiums, fees, costs and Taxes payable thereunder; provided, that Seller shall bear 50% of the premium for the RWI Policy (which amount shall be included in the Seller Expenses). Buyer shall not, and shall not permit its Affiliates to, amend or otherwise modify the subrogation provisions of the RWI Policy in any manner that adversely affects Seller or any of its Affiliates.
RWI Policy. Purchaser shall not amend, modify, supplement or otherwise change, terminate or waive any provision of the RWI Policy or allow any of the provisions of the RWI Policy to be amended, modified, supplemented, changed, terminated or waived, in each case in a manner that adversely affects Seller or any of its current or former direct or indirect equityholders, parents, subsidiaries, shareholders, Affiliates, members, managers, directors, officers, employees, beneficiaries, trustee, fiduciaries or partners. From and after the period commencing on the date of this Agreement and terminating on the date the RWI Policy is issued, Purchaser shall (and shall cause its Affiliates to) use its best efforts to cause the RWI Policy to be issued. From and after the period commencing on the date of this Agreement and terminating on the expiration of the applicable coverage period as set forth in the RWI Policy, Purchaser shall (and shall cause its Affiliates to) use commercially reasonable efforts to maintain the RWI Policy on substantially the same terms and conditions set forth in the RWI Policy, including, but not limited to, paying all fees and premiums when due under the RWI Policy and fulfilling all contingencies imposed by underwriting for the issuance of the RWI Policy. Nothing in this Agreement shall limit the right of the Purchaser (or an Affiliate thereof) to make claims against the RWI Policy. For purposes of clarity, as between Purchaser, on the one hand, and the insurer(s) under the RWI Policy, on the other hand, none of the terms, limitations, conditions and restrictions (including time for asserting claims) set forth in this Agreement are intended to affect the rights of Purchaser (or any Affiliate thereof) under the RWI Policy, which rights shall be governed solely thereby.
RWI Policy. (a) Buyer has obtained and bound the RWI Policy, a copy of which is attached hereto as Exhibit A. The Parties acknowledge and agree that the Company has had a chance to review such policy and the costs associated with the issuance of such policy, including the total premium, underwriting costs, brokerage commission, and other fees and expenses of such policy. The Parties agree that the RWI Policy shall contain a waiver of subrogation such that the RWI Policy insurer waives all rights of subrogation against the Company and its Affiliates in connection with any claims brought in connection with this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Company Stockholders shall bear the cost of the (i) RWI Underwriting Fee Amount, (ii) RWI Broker Fee Amount, and (iii) 50% of the RWI Premium Amount, which amounts shall be withheld from the calculation of the Equity Value payable to the Company Stockholders and paid by Buyer to the RWI Policy insurer and Buyer’s insurance broker (as applicable to obtain and cause the RWI Policy to become effective). Buyer shall bear the cost of the remaining 50% of the RWI Premium Amount.
(c) Notwithstanding anything to the contrary in this Agreement, no limitations, qualifications or procedures in this Agreement shall be deemed to limit or modify the ability of Buyer to make claims under or recover under the RWI Policy.
