Common use of RWI Policy Clause in Contracts

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 pursuant to, and subject to the terms of, Section 10.03.

RWI Policy. Following (a) In the Closingevent of a claim for indemnification pursuant to Section 12.3(a)(i) for a breach or inaccuracy of any Fundamental Representation or Section 12.3(a)(iii) (or with respect to any claim that could be made under either such section), Buyer’s right (i) each of Buyer and Sangoma shall recover, or cause the appropriate Buyer Indemnified Party to assert recover, any Damages first from the Indemnification Holdback Amount and then directly from the Sellers on a several (and not joint) basis up to the amount of 50% of the then-remaining Retention only to the extent necessary to fully satisfy the Retention, if any, under the RWI Policy, (ii) each of Buyer and Sangoma shall make, or cause the appropriate Buyer Indemnified Party to make, a claim for the full amount of such Damages under the RWI Policy and shall use commercially reasonable efforts to recover, and to cause the appropriate Buyer Indemnified Party to recover, for such claims under the RWI Policy shall be to the fullest extent covered thereby (which efforts, for clarity, include reasonably pursuing coverage pursuant to the notice and reporting procedures of the RWI Policy, but expressly excludes any obligation to pursue coverage through litigation or arbitration), and (iii) to the extent that any amounts of Damages have not been covered by the RWI Policy following the use of such commercially reasonable efforts (but without any obligation to pursue coverage through litigation or arbitration), Buyer or the appropriate Buyer Indemnified Party may recover any such remaining Damages from the Sellers on a several (and not joint) basis. (b) In the event of a claim for indemnification pursuant to Section 12.3(a)(i), other than for a breach or inaccuracy of any Fundamental Representation or in the case of Fraud, the Buyer Indemnified Parties’ sole and exclusive remedy for any Covered Losses arising from any breach or inaccuracy of the representations recourse 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 recovery 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 Damages in excess of the coverage thereunder, Sellers’ Deductible shall not be subject from the Indemnification Holdback Amount (to the limitation contained extent any of the Indemnification Holdback Amount remains held back by Buyer in accordance with this Section 10.02 and shall be fully recoverable by Agreement) in an amount equal to 50% of the Buyer Indemnified Parties pursuant to, and subject Retention only to the terms of, Section 10.03extent necessary to fully satisfy the Retention and from the RWI Policy.

RWI Policy. Following Buyer agrees that except in (a) the Closingcase of Fraud by Seller and (b) in respect of the Company Specified Fundamental Representations (but only to the extent provided in Section ‎10.3), Buyer’s sole right to assert claims of recovery (if any) in respect of any representations and warranties of the Seller and Amundi Parent set forth in ‎Article III and ‎Article IV, shall be under the RWI Policy, regardless of whether or not the matter is covered by the RWI Policy and notwithstanding any subsequent non-payment under the RWI Policy shall be or any vitiation or expiry or termination of the Buyer Indemnified Parties’ sole and exclusive remedy RWI Policy or insolvency of the underwriters of the RWI Policy or 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 Policyreason whatsoever. Buyer acknowledges and agrees that the Buyer Indemnified Parties it shall be responsible fully liable for all retention amounts under the RWI Policy. Subject to any premium, retention amount thereunder, and the other terms and conditions thereunder, the Buyer Indemnified Party shall use reasonable best efforts to seek to obtain payment costs under the RWI Policy and, accordingly, Seller shall not be liable for any such amounts. The RWI Policy shall explicitly provide that (a) the RWI Policy insurer(s) irrevocably waives and agrees not to pursue, directly or indirectly, any and all rights of subrogation, contribution and any other rights the RWI Policy insurer(s) might have against Seller, its Affiliates or its or their Representatives in connection with respect this Agreement and the transactions contemplated hereby, other than in the case of Fraud by any such Person, and then only to any breach or inaccuracy the extent of such Fraud by such Person; and (b) Seller, its Affiliates and its and their Representatives are third party beneficiaries of the Fundamental Representations and the Tax Representationsforegoing waiver, and the RWI Policy foregoing waiver may not be amended by any party in any manner adverse to Seller, its Affiliates or any of its or their Representatives without Seller’s prior written consent (which consent shall be Buyer’s first source in the sole and absolute discretion of payment for any Covered Losses covered by Seller). Bxxxx agrees to provide a duly executed copy of 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 pursuant toas soon as reasonably practicable following its inception, and subject to in any event within five (5) Business Days after the terms of, Section 10.03date hereof.

RWI Policy. Following (a) The Buyer has executed a conditional binder agreement (the Closing“Binder Agreement”), Buyer’s right attached as Exhibit F, with respect to assert claims under a buyer-side representation and warranty insurance policy in connection with this Agreement and the transactions contemplated herein (the “RWI Policy”), which the Buyer has provided the Sellers’ Representative with a reasonable opportunity to review and provide reasonable comments to. The Buyer shall cause the RWI Policy, if obtained, to expressly provide that (i) each insurer issuing the RWI Policy has waived or otherwise shall not pursue any subrogation, contribution, or other recourse against any Seller, any Founder or any other Seller Indemnified Party, in connection with this Agreement and the transactions contemplated hereby, except in the case of Fraud (in which case, recourse may be pursued only against such Person and each Seller and Founder shall be severally, and not jointly, liable only for Fraud committed by such Seller or Founder, as the case may be) (the “Subrogation Waiver”), (ii) the Buyer Indemnified Parties’ sole shall have no obligation to pursue any claim against any Seller or Founder in connection with any Losses, and exclusive remedy for any Covered Losses arising from any breach or inaccuracy (iii) each of the representations and warranties contained in Article III or Article IV of this Agreement (other than Sellers, the Seller Fundamental Representations Founders and the Tax Representations), other Seller Indemnified Parties may rely upon 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 enforce the Subrogation Waiver as express third-party beneficiaries thereof. From and after the issuance of the RWI Policy; and provided, further that the Buyer Indemnified Parties shall be entitled not (and shall cause its Affiliates to recover directly from Seller those Covered Losses arising out of any breach or inaccuracy of the Seller Fundamental Representations or the Tax Representationsnot) amend, in each case to the extent such Covered Losses are in excess ofmodify, or otherwise excluded fromchange, terminate, or waive the coverage provided under Subrogation Waiver without the prior written consent of the Sellers’ Representative, which consent may be granted or withheld in its sole discretion. The Buyer shall provide the Sellers’ Representative with a true and complete copy of the final and issued RWI Policy as soon as reasonably practicable following the Closing. (b) The Buyer shall pay one hundred percent (100%) of the cost of obtaining the RWI Policy, including all premiums, surplus line taxes, premium taxes, underwriting fees, and any related brokers’ fees and commissions (the “RWI Policy Costs”). Buyer acknowledges From and agrees that after Closing, 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 costs of maintaining the RWI Policy with respect to and for any breach associated deductible or inaccuracy of the Fundamental Representations and the Tax Representationsretention amounts, and the RWI Policy shall be Buyer’s first source of payment not provide for any Covered Losses covered by “seller retention” (as such phrase is commonly used in the RWI Policy (such that, while a claim may be made (representation and pursued) concurrently against both the RWI Policy and the Indemnifying Parties hereunder, an Indemnifying Party will not be obligated to make payment warranty insurance policy industry). The Sellers’ Representative shall deliver to the Buyer Indemnified Parties with respect to a Covered Loss that is payable under true and correct copy of contents of the RWI Policy until Data Room on a USB drive or other electronic means as soon as reasonably practical (and in any event within five (5) Business Days) following 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, Closing. (c) Notwithstanding anything to the Buyer Indemnified Partiescontrary in this Agreement, 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 the Buyer acknowledges and agrees that obtaining the RWI Policy is not a condition for the Buyer to proceed to Closing, and the Buyer shall remain obligated, subject only to the Seller Fundamental Representations satisfaction or waiver of the Tax Representations not paid conditions set forth in Section 7.1 and Section 7.3, to Buyer consummate the transactions contemplated by this Agreement regardless of whether the RWI Policy becomes effective. The absence of coverage under the RWI Policy, whether due to a Covered Loss being excluded from such policy Policy or in excess the failure of the coverage thereunder, RWI Policy to be in full force and effect for any reason shall not be subject to expand, alter, amend, change, or otherwise affect the limitation contained in liability of any Seller, any Founder, or any other Seller Indemnified Party under this Section 10.02 and shall be fully recoverable by the Buyer Indemnified Parties pursuant to, and subject to the terms of, Section 10.03Agreement.

RWI Policy. Following Without limiting the Closinggenerality of Section 8.1, Buyer’s right each Buyer Party hereby acknowledges and agrees that if a RWI Policy is obtained by Parent or its applicable Affiliate (whether or not such RWI Policy is sufficient to assert claims cover the applicable Losses), recovery under the such RWI Policy shall be the Buyer Indemnified Parties’ sole and exclusive remedy for of such Buyer Party and its Affiliates (including, from and after the US/NL Closing, the Target Companies) and Buyer Related Parties, in Law, equity or otherwise, arising out of, or related to any Covered Losses arising from inaccuracy or breach of any breach representation or inaccuracy warranty of Omega or the representations and warranties Direct Sellers contained in Article III or Article IV of this Agreement (other than or in the Seller Fundamental Representations and the Tax Representationsofficer’s certificate delivered to Parent pursuant to Section 6.2(d), and no Seller Party shall have any liability therefor; providedeach Buyer Party, however, that nothing set forth in this Article X shall preclude or limit Buyer’s or its Affiliates’ ability to file claims under Affiliates (including from and after 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 fromUS/NL Closing, 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 thereunderTarget Companies), 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 Related Parties 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 shall have notified Buyer no recourse against any Omega Related Party with respect thereto, other than in writing the case of Fraud. All costs and expenses related to such RWI Policy shall be borne by Parent or its applicable Affiliate. Parent agrees that they will (a) Parent shall cause such RWI Policy to expressly provide that (i) the applicable insurers under such RWI Policy shall expressly waive (and Parent shall cause the applicable insurers to waive) any rights of subrogation, claim for contribution or otherwise against the Omega Related Parties in connection with this Agreement and the Transaction, (ii) the Omega Related Parties shall be express third-party beneficiaries of such waiver, and (iii) at all times after the US/NL Closing, Parent shall not pay amend such Covered Loss, whether RWI Policy in whole or in part, a manner that is adverse to the Omega Companies without the prior written consent of Omega. Each Buyer Indemnified Parties, whether pursuant Party acknowledges and agrees that the obtaining or effectiveness of any RWI Policy is not a condition to either 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 US/NL Closing or the Tax Representations not paid JV Holdco Closing, and reaffirms its obligation to Buyer under consummate the Transactions irrespective and independently of the availability or effectiveness of any RWI Policy, whether due subject to a Covered Loss being excluded from such policy only the satisfaction or in excess waiver of the coverage thereunder, shall not be subject conditions to the limitation contained US/NL Closing set forth in this Section 10.02 6.1 and shall be fully recoverable by the Buyer Indemnified Parties pursuant toSection 6.2, and subject the satisfaction or waiver of the conditions to the terms of, JV Holdco Closing set forth in Section 10.036.1 and Section 6.4.