R&W Insurance Policy. Buyer and Sapphire shall each pay or cause to be paid 50% of all costs and expenses related to the R&W Insurance Policy, including the total premium, underwriting costs, brokerage commissions and other fees and expenses of such policy and, in connection therewith, promptly following the execution of this Agreement, each of Buyer and Sapphire shall pay 50% of the required deposit fee and all other out-of-pocket payments or fees necessary to bind Buyer’s coverage under the R&W Insurance Policy. Buyer will use commercially reasonable efforts to take all such other necessary actions to bind Buyer’s coverage under the R&W Insurance Policy as promptly as practicable and in any event prior to the Principal Closing. Sellers shall provide, and shall cause their Affiliates to provide, such cooperation in connection with the arrangement of the R&W Insurance Policy as may be reasonably requested by Buyer and which is necessary, customary or advisable in connection with Buyer’s efforts to obtain the R&W Insurance Policy. Buyer will use reasonable best efforts to comply in all material respects with all of its obligations under the R&W Insurance Policy and the binder relating thereto necessary to the binding of the R&W Insurance Policy. The Parties acknowledge and agree that the R&W Insurance Policy expressly provides (x) that the insurer(s) issuing the R&W Insurance Policy have waived any right of subrogation, claims for contribution or assignment or otherwise, against the Sellers, any of their respective Affiliates, or any past, present or future direct or indirect equityholder, member, manager, director, officer, partner, employee, Affiliate, agent, advisor or representative (or the functional equivalent of any such position) (the “Seller Related Persons”), except in the case of Fraud by any such Seller Related Person and (y) that the Seller Related Persons are express third-party beneficiaries of such waiver. From and after the Closing, Buyer shall not (and shall cause its Affiliates not to) agree to any amendment, modification, variation, termination or waiver of the foregoing provisions of the R&W Insurance Policy without Sapphire’s prior written consent. Buyer agrees to, and to cause its Affiliates and Representatives to, use reasonable best efforts, in coordination with Sapphire, to minimize or eliminate any exclusions from coverage under the R&W Insurance Policy for which there is a corresponding Specified Indemnity Matter under this Agreement (each, an “Exclus...
R&W Insurance Policy. In the event Parent or any of its Affiliates obtains a representations and warranties insurance policy in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement (such policy, a “R&W Insurance Policy”), then (a) the payment of the premium (inclusive of commissions, surplus lines or premium taxes) and underwriting fees required by the R&W Insurance Policy to be paid (the “R&W Policy Premium”) shall be paid by Parent at or following Closing in connection with the issuance of the R&W Insurance Policy, with fifty percent (50%) of the R&W Policy Premium being borne by the Company as a Transaction Expense, and, for the avoidance of doubt, any other costs incurred or due following the Effective Time relating to the R&W Insurance Policy shall be borne solely by Parent and its Affiliates (including the Surviving Company after the Mergers); (b) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry); (c) such R&W Insurance Policy shall expressly waive any claims of subrogation, contribution, assignment, or otherwise, against the Stockholder or its Affiliates (or any direct or indirect past or present shareholder, member, partner, stockholder, employee, director or officer (or the functional equivalent of any such position) of the Stockholder or its Affiliates) (except in the case of Fraud); (d) the Stockholder shall, and shall cause the Company to, use commercially reasonable efforts to cooperate with Parent and its Affiliates and provide assistance as reasonably required to obtain such R&W Insurance Policy prior to Closing and (e) the subrogation waiver described in clause (c) of this Section 6.10 may not be amended or otherwise modified in any manner adverse to the Stockholder or any of the other persons listed in clause (c) of this Section 6.10, without Stockholder’s prior written consent (which consent may be withheld in its sole discretion).
R&W Insurance Policy. The R&W Insurance Policy shall be bound and in full force and effect on or prior to the Closing Date.
R&W Insurance Policy. Prior to or concurrently with the execution of this Agreement, Purchaser shall cause to be bound and incepted a representations and warranties insurance policy (a copy of which Purchaser shall have provided Seller prior to the execution thereof) (the “R&W Insurance Policy”). Purchaser shall pay, or cause to be paid, the premium and all other costs required for issuance of the R&W Insurance Policy. Following the final issuance of the R&W Insurance Policy, Purchaser agrees to use reasonable best efforts to keep the R&W Insurance Policy in full force and effect for the policy period set forth therein. Upon its final issuance, Purchaser shall deliver a copy of the R&W Insurance Policy to Seller. The Parties acknowledge that Purchaser obtaining the R&W Insurance Policy is a material inducement to Seller entering into the transactions contemplated by this Agreement, and Seller is relying on Purchaser’s covenants and obligations set forth in this Section 5.10. The R&W Insurance Policy shall include a provision whereby the insurer expressly waives, and irrevocably agrees not to pursue, directly or indirectly, any subrogation rights against Seller or any of its Affiliates, or any former shareholders, managers, members, directors, officers and employees of any of the foregoing with respect to any claim made by any insured thereunder, which waiver Seller may enforce directly against the insurer of the R&W Insurance Policy, other than in the event of Actual Fraud. Purchaser shall not waive, amend, modify or otherwise revise this subrogation provision under the R&W Insurance Policy, or allow such provision to be waived, amended, modified or otherwise revised by any other Person, in each case, without Seller’s prior written consent, which Seller may grant or withhold in its sole discretion. For the avoidance of doubt, in no event shall Seller’s obligations or liability under Article VII be expanded or increased as a result of any failure by Purchaser or its Affiliates to obtain a representation and warranty insurance policy or, if obtained, any of the terms or conditions thereof.
R&W Insurance Policy. Xxxxx has received a written commitment from the R&W Insurer to fully bind the R&W Insurance Policy effective as of the Closing Date. Buyer represents and warrants to Seller that it has provided a true and correct copy of such commitment to Seller that is in full force and effect prior to the Execution Date. The Parties acknowledge that obtaining such commitment and the R&W Insurance Policy is a material inducement to each of the Parties’ entering into the Transaction, and that Seller is relying on Buyer’s covenants and obligations set forth in this Section 4.9. Notwithstanding the foregoing, for the avoidance of doubt, Xxxxx acknowledges and agrees that obtaining the R&W Insurance Policy is not a condition to the Closing and Buyer shall remain obligated, subject only to the satisfaction or waiver of the conditions set forth in Article VI of this Agreement, to consummate the Transaction.
R&W Insurance Policy. Prior to the Closing, Purchaser shall maintain the R&W Insurance Policy as bound as of the date hereof and shall timely satisfy all conditions necessary for the continuation of coverage under the R&W Insurance Policy. Following the Closing, Purchaser shall not, without the written consent of the Sellers Representative, amend the subrogation provisions of the R&W Insurance Policy in a manner that is detrimental to the Sellers.
R&W Insurance Policy. Purchasers shall not, and shall not permit any of their Affiliates to, amend, modify or waive the subrogation provision of the R&W Insurance Policy in a manner that is adverse to Seller or any of its Affiliates or Representatives without the prior written consent of Seller.
R&W Insurance Policy. Acquiror shall take, and shall cause its respective Affiliates to take, all commercially reasonable actions necessary to cause the R&W Insurance Policy to be issued promptly following the Agreement Date. The Company, the Seller Guarantors and the Sellers shall reasonably cooperate with Acquiror in connection with obtaining the R&W Insurance Policy. The insurer(s) of the R&W Insurance Policy and any other Person shall not receive rights of subrogation or other rights of recovery except as expressly set forth in the R&W Insurance Policy. None of Acquiror, the Company or their respective Affiliates or any other Person shall amend, waive or otherwise modify the R&W Insurance Policy in any manner that would be materially adverse to, or that would allow the insurer(s) under the R&W Insurance Policy or any other Person to subrogate or otherwise make or bring any claim or legal proceeding under the R&W Insurance Policy against, any Seller Guarantor, any Seller or their respective Affiliates (or, as to each of the foregoing, any past, present or future director, manager, officer, employee or advisor of any of the foregoing) 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.
R&W Insurance Policy. Buyer shall have obtained and bound the R&W Insurance Policy with coverage to incept effective as of the signing date of this Agreement.
R&W Insurance Policy. Prior to or simultaneously with the execution and delivery of this Agreement, Parent shall cause to be bound and in full force and effect as of the Agreement Date, the R&W Insurance Policy, and take the actions necessary to commence coverage under the R&W Insurance Policy, including executing and using commercially reasonable efforts to cause to be executed and delivered all documents attached to the R&W Insurance Policy and taking all other actions necessary or as otherwise may be required in connection with (a) binding coverage under the terms of the R&W Insurance Policy on the Agreement Date and (b) issuing the final R&W Insurance Policy. Such R&W Insurance Policy shall provide for (i) a retention of no more than one percent (1%) of the Initial Merger Consideration, (ii) a coverage limitation of at least ten percent (10%) of the Initial Merger Consideration, and (iii) a provision providing that the insurer shall waive and have no rights of subrogation against any party to this Agreement or any Representative thereof, except against an Indemnifying Securityholder solely in the case of that such Indemnifying Securityholder committed Fraud in connection with the Merger (the “Specified Terms”). Parent shall pay and be responsible for any and all premium, underwriting fees, brokerage fees, legal fees for counsel engaged by the insurer of the R&W Insurance Policy, surplus lines tax and any other costs and expenses associated with obtaining the R&W Insurance Policy and binding coverage thereunder and set forth in invoice(s) from the insurer in respect thereof. Parent shall not amend or waive any Specified Terms in a manner adverse to the Company Securityholders without the prior written consent of, prior to the Closing, the Company, and after the Closing, the Securityholder Representative, such consent not to be unreasonably withheld or delayed.
