Common use of Seller’s Insurance Clause in Contracts

Seller’s Insurance. The parties acknowledge that Buyer, the Company or their affiliates may suffer or incur Losses that are covered by insurance policies of Seller for matters arising out of occurrences taking place prior to the Closing ("Pre-Closing Insured Matters"), whether or not such Pre-Closing Insured Matters are reported prior to the Closing. Seller agrees that, at the request of Buyer or the Company, it will assign its right to pursue any claim with respect to any Pre-Closing Insured Matter to Buyer or the Company if such assignment is permitted by the applicable policy and otherwise will use its commercially reasonable best efforts to pursue any claim against Seller's insurers on behalf of Buyer or the Company. Seller shall promptly upon receipt pay over to Buyer or the Company the amount received under any insurance policy of Seller relating to a Pre-Closing Insured Matter. Seller shall not amend or modify its insurance policies covering Pre-Closing Insured Matters in any way that would adversely affect the coverage of Pre-Closing Insurance Matters. Notwithstanding anything contained in this Agreement to the contrary, Seller shall indemnify and hold harmless Buyer, the Company and their affiliates from and against any and all Losses any of them may suffer or incur arising out of or by reason of any Pre-Closing Insured Matter with respect to which Seller is in whole or in part as of the date hereof or as of the Closing Date self insured, including without limitation, Damage and Business Interruption Insurance, Workers Compensation

Seller’s Insurance. The parties acknowledge Buyer acknowledges and agrees that Buyer, all insurance policies maintained by Seller in respect of the Company and its assets and properties (which, for the avoidance of doubt, do not include the Insurance Policies) may be terminated by Seller at the Closing and that Buyer shall have no right, title or their affiliates may suffer interests in or incur Losses that are covered by to any unearned premiums on any such insurance policies of Seller for matters arising out of occurrences taking place prior to the Closing ("Pre-Closing Insured Matters"), whether or not such Pre-Closing Insured Matters are reported prior to maintained by Seller. Following the Closing. Seller agrees that, at the request of Buyer or shall not, and shall cause its Affiliates (including the Company) not to, it will assign its right to pursue make any claim with respect to any Pre-Closing Insured Matter to Buyer or the Company if such assignment is permitted by the applicable policy and otherwise will use its commercially reasonable best efforts to pursue any claim against Seller's insurers on behalf of Buyer or the Company. Seller shall promptly upon receipt pay over to Buyer or the Company the amount received claims under any such insurance policy of Seller relating to a Pre-Closing Insured Matterpolicies. Seller Buyer shall not amend or modify its arrange insurance policies covering Pre-Closing Insured Matters in any way that would adversely affect the coverage of Pre-Closing Insurance Matters. Notwithstanding anything contained in this Agreement to the contrary, Seller shall indemnify and hold harmless Buyerfor itself, the Company and their affiliates respective assets and properties, effective as of the Closing, with insurers of its own choice; provided, however, that in respect of any claims commenced after the Closing Date arising from an event, circumstance or occurrence prior to the Closing Date, during the period between the Closing and against the six-month anniversary of the Closing, Buyer and its Affiliates, on behalf of the Company, may request for Seller to, on Buyer’s behalf, subject to the terms and conditions of the applicable policies, access, submit claims and seek coverage on any of Seller’s or its Affiliates’ occurrence-based (but not claims-made) insurance policies (including the Insurance Policies) covering the Company at the time of such event, circumstance or occurrence, and Seller and its Affiliates shall maintain or cause to be maintained all such insurance policies for such purposes and use commercially reasonable efforts to assist Buyer and its Affiliates in asserting any such claims and make the benefits of any such insurance policies available to Buyer and its Affiliates; provided, further, that Buyer shall be solely liable for, and Seller shall have no obligation to pay or reimburse Buyer or its Affiliates for, all deductibles, retentions and all Losses uninsured, uncovered, unavailable or uncollectable amounts and all fees, costs or expenses incurred by Buyer, relating to or associated with such claims. Notwithstanding anything contained herein, (1) nothing in this Agreement shall limit, waive or abrogate in any manner any rights of them may suffer Seller or incur arising out of its Affiliates to insurance coverage for any covered claims under its insurance policies, whether related to the Company or by reason of any Preotherwise, and (2) Seller shall retain the exclusive right to control its insurance policies and programs, including the right to exhaust, settle, release, commute, buy-Closing Insured Matter back or otherwise resolve disputes with respect to which Seller is in whole any insurance policies and programs or in part as of the date hereof or as of the Closing Date self insured, including without limitation, Damage and Business Interruption Insurance, Workers Compensationany rights hereunder.

Seller’s Insurance. The parties acknowledge that Buyer(a) It is understood and agreed that, for purposes of this Agreement, Excluded Liabilities shall include any liability relating to the Company or their affiliates may suffer or incur Losses that are covered by insurance policies Businesses to the extent, and only to the extent, of Seller the coverage available under the Insurance Policies for matters arising out of occurrences taking place losses occurring prior to the Closing Date ("Preincluding as an Excluded Liability (i) any deductible or self-Closing Insured Matters"), whether insurance retention relating to workers compensation insurance and (ii) any deductible relating to any accident or not such Pre-Closing Insured Matters are reported loss known to Seller at or prior to the Closing. Seller agrees that, at Closing Date). (b) In order to assist Purchaser in determining which liabilities relating to the request of Buyer Assets or the CompanyBusinesses may be covered under the Insurance Policies, it Seller will assign provide to Purchaser a list of all Insurance Policies known to Seller to be applicable to the Covered Entities from 1980 to the present within 30 days of the Closing Date. Within 90 days of the Closing Date, Seller will provide to Purchaser copies of all Insurance Policies within its right possession or control which formerly provided or currently provide coverage to pursue any claim of the Covered Entities. (c) With respect to any liability relating to the Businesses which Purchaser believes in good faith is potentially covered under the Insurance Policies (and therefore an Excluded Liability), Purchaser shall provide prompt notice to Seller, and Seller shall provide prompt notice to all insurance companies under all potentially applicable Insurance Policies. Purchaser hereby agrees to cooperate and assist Seller as reasonably necessary with respect to any Pre-Closing Insured Matter to Buyer or presenting claims and securing recoveries under the Company if such assignment is permitted by Insurance Policies. Seller will pursue coverage under the applicable policy Insurance Policies in good faith and otherwise will use its commercially reasonable best efforts to pursue maximize insurance recoveries under the Insurance Policies. In the event that Seller fails to meet its obligations under this Section 8.4(c) with respect to any claim against Seller's insurers on behalf of Buyer or the Company. Seller shall promptly upon receipt pay over to Buyer or the Company the amount received under any insurance policy of Seller Excluded Liability relating to a Pre-Closing Insured Matter. Seller shall not amend or modify its insurance policies covering Pre-Closing Insured Matters in any way that would adversely affect the coverage of Pre-Closing Businesses potentially covered under the Insurance Matters. Notwithstanding anything contained in this Agreement to the contraryPolicies, Seller shall indemnify and hold harmless Buyerassign to Purchaser (to the extent assignable) all rights to pursue recoveries under the Insurance Policies for defense, the Company and their affiliates from and against any and all Losses any of them may suffer indemnification, losses, damages, settlements or incur arising out of other payments or by reason reimbursements of any Pre-Closing Insured Matter kind with respect to such Liability. This Section 8.4(c) shall not be interpreted to require Seller to file or prosecute any legal action or suit under the Insurance Policies, and in the event that Seller elects not to so prosecute such action or suit for insurance recoveries, Purchaser may elect to pursue such action or suit at its own expense. (d) With respect to any claim as to which an insurer disputes its obligation under the Insurance Policies, Seller is may settle its claim under the Insurance Policies with the advice and consent of Purchaser. If Seller reaches a written letter of intent or agreement in whole principle to settle with any insurers under the Insurance Policies as to a liability relating to the Businesses, Seller shall give Purchaser notice and copy of such letter of intent or agreement in part as principle and 20 days within which to approve the settlement or take assignment of the date hereof or as claim against such insurer. If Purchaser elects to take assignment of the Closing Date self insuredclaim against such insurer, including without limitation, Damage the underlying liability relating to the Businesses shall thereafter be deemed to be an Assumed Liability under this Agreement (to the extent not otherwise excluded hereunder) and Business Interruption Insurance, Workers CompensationPurchaser will be entitled to retain any recoveries it receives from its prosecution of such claim against such insurer.

Seller’s Insurance. The parties acknowledge that Buyer(a) It is understood and agreed that, for ------------------ purposes of this Agreement, Excluded Liabilities shall include any liability relating to the Company or their affiliates may suffer or incur Losses that are covered by insurance policies Businesses to the extent, and only to the extent, of Seller the coverage available under the Insurance Policies for matters arising out of occurrences taking place losses occurring prior to the Closing Date ("Preincluding as an Excluded Liability (i) any deductible or self-Closing Insured Matters"), whether insurance retention relating to workers compensation insurance and (ii) any deductible relating to any accident or not such Pre-Closing Insured Matters are reported loss known to Seller at or prior to the Closing. Seller agrees that, at Closing Date). (b) In order to assist Purchaser in determining which liabilities relating to the request of Buyer Assets or the CompanyBusinesses may be covered under the Insurance Policies, it Seller will assign provide to Purchaser a list of all Insurance Policies known to Seller to be applicable to the Covered Entities from 1980 to the present within 30 days of the Closing Date. Within 90 days of the Closing Date, Seller will provide to Purchaser copies of all Insurance Policies within its right possession or control which formerly provided or currently provide coverage to pursue any claim of the Covered Entities. (c) With respect to any liability relating to the Businesses which Purchaser believes in good faith is potentially covered under the Insurance Policies (and therefore an Excluded Liability), Purchaser shall provide prompt notice to Seller, and Seller shall provide prompt notice to all insurance companies under all potentially applicable Insurance Policies. Purchaser hereby agrees to cooperate and assist Seller as reasonably necessary with respect to any Pre-Closing Insured Matter to Buyer or presenting claims and securing recoveries under the Company if such assignment is permitted by Insurance Policies. Seller will pursue coverage under the applicable policy Insurance Policies in good faith and otherwise will use its commercially reasonable best efforts to pursue maximize insurance recoveries under the Insurance Policies. In the event that Seller fails to meet its obligations under this Section 8.4(c) with respect to any claim against Seller's insurers on behalf of Buyer or the Company. Seller shall promptly upon receipt pay over to Buyer or the Company the amount received under any insurance policy of Seller Excluded Liability -------------- relating to a Pre-Closing Insured Matter. Seller shall not amend or modify its insurance policies covering Pre-Closing Insured Matters in any way that would adversely affect the coverage of Pre-Closing Businesses potentially covered under the Insurance Matters. Notwithstanding anything contained in this Agreement to the contraryPolicies, Seller shall indemnify and hold harmless Buyerassign to Purchaser (to the extent assignable) all rights to pursue recoveries under the Insurance Policies for defense, the Company and their affiliates from and against any and all Losses any of them may suffer indemnification, losses, damages, settlements or incur arising out of other payments or by reason reimbursements of any Pre-Closing Insured Matter kind with respect to such Liability. This Section 8.4(c) shall not be interpreted to -------------- require Seller to file or prosecute any legal action or suit under the Insurance Policies, and in the event that Seller elects not to so prosecute such action or suit for insurance recoveries, Purchaser may elect to pursue such action or suit at its own expense. (d) With respect to any claim as to which an insurer disputes its obligation under the Insurance Policies, Seller is may settle its claim under the Insurance Policies with the advice and consent of Purchaser. If Seller reaches a written letter of intent or agreement in whole principle to settle with any insurers under the Insurance Policies as to a liability relating to the Businesses, Seller shall give Purchaser notice and copy of such letter of intent or agreement in part as principle and 20 days within which to approve the settlement or take assignment of the date hereof or as claim against such insurer. If Purchaser elects to take assignment of the Closing Date self insuredclaim against such insurer, including without limitation, Damage the underlying liability relating to the Businesses shall thereafter be deemed to be an Assumed Liability under this Agreement (to the extent not otherwise excluded hereunder) and Business Interruption Insurance, Workers CompensationPurchaser will be entitled to retain any recoveries it receives from its prosecution of such claim against such insurer.