R&W Policy Sample Clauses
The R&W Policy clause defines the use of a Representations and Warranties insurance policy in a transaction. This clause typically outlines that the buyer or seller will obtain insurance to cover losses arising from breaches of representations and warranties made in the purchase agreement. It may specify who is responsible for procuring the policy, the scope of coverage, and how claims under the policy interact with indemnification provisions. The core function of this clause is to allocate risk between the parties by transferring certain liabilities to an insurer, thereby facilitating smoother negotiations and providing additional protection against unforeseen breaches.
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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.
R&W Policy. The Buyer and its Affiliates shall cause the R&W Policy to be bound effective as of the Closing. The Buyer shall timely pay all premiums and other amounts required to cause the R&W Policy to become effective in accordance with its terms. The Buyer will not, and will cause its Affiliates not to, amend, waive or otherwise modify the R&W Policy in any manner that is adverse to the Sellers without the prior written consent of the Seller Representative. The R&W Policy shall provide that the R&W Insurer shall have no subrogation right, entitlement of privilege, or any recourse whatsoever, against the Sellers or their Affiliates pursuant to this Agreement, the R&W Policy, the negotiation, execution or performance of this Agreement and the transactions contemplated hereby, or otherwise, except against a Seller in the case of a matter arising directly from such Seller’s actual Fraud. Following the Closing, the Buyer shall not modify or amend the R&W Policy’s subrogation or third-party beneficiary provisions benefitting the Sellers or their Affiliates in any manner without the prior written consent of the Seller Representative.
R&W Policy. Parent shall be entitled to obtain a representations and warranties insurance policy (the “R&W Policy”) in connection with the transactions contemplated hereby covering losses of Parent arising from the breaches of the Company’s representations and warranties contained herein. The Company shall, and shall cause its Representatives to, reasonably cooperate with Parent to bind any R&W Policy. The premium, due diligence fees, underwriting fees and other amounts payable to any insurer or broker in connection with the R&W Policy shall be borne solely by Parent.
R&W Policy. 4.8.1 At the time of execution and delivery of this Agreement, the Purchaser has provided to the Corporation a true and complete copy of the buyer-side representation and warranty insurance binder that has been incepted as of the execution and delivery of this Agreement providing for the issuance of a buyer-side representation and warranty insurance policy at or prior to Closing in the name of and for the benefit of the Purchaser, on the terms set out in Schedule 4.8.1, delivered by the Purchaser concurrently with the execution of this Agreement (the “R&W Policy”). The Purchaser is current in all premiums or other payments due under the R&W Policy and has otherwise complied in all material respects with all of its obligations under the R&W Policy. The terms of the R&W Policy do not permit subrogation against the Vendors, the Group or Representatives of the foregoing for any claims made by the Purchaser under the R&W Policy, except in the case of Fraud. Following Closing, the Purchaser shall not amend or waive, or permit the amendment or waiver of, the subrogation provisions contained in the R&W Policy benefitting the Vendors or otherwise amend, modify, restate, supplement or terminate the R&W Policy in a manner adverse to the Vendors without the prior written consent of the Vendors’ Delegate.
4.8.2 The Parties agree that the payment of the premium for the R&W Policy, any retention amount and all of the remaining costs associated with obtaining the R&W Policy, including the broker fee, the underwriting fee, the due diligence fee, carrier commissions and legal fees for counsel engaged by the underwriter (the “R&W Costs”) shall be divided equally between the Purchaser on the one hand, and the Vendors, collectively, on the other hand. To facilitate payment, the Purchaser shall be reimbursed for fifty percent (50%) of the R&W Costs at Closing as a Transaction Expense. If the Closing does not occur and this Agreement is terminated as a result of a default by the Vendors under this Agreement, the Vendors collectively shall reimburse the Purchaser for [**] percent ([**]%) of the R&W Costs within [**] of the termination of this Agreement and this obligation shall survive the termination of this Agreement. If (a) the Closing does not occur and this Agreement is terminated as a result of a default by the Purchaser under this Agreement, or (b) the Closing does not occur by May 31, 2024 and this Agreement is terminated as a result thereof, the Vendors shall not reimbur...
R&W Policy. Prior to the Closing, the Purchaser shall use reasonable best efforts to obtain a stand-alone representation and warranty insurance policy (the “R&W Policy”) that insures, in accordance with its terms, the Purchaser and its Affiliates and Representatives (as applicable) for Losses deriving from a breach, or any failure to be true, of the representations and warranties given by the Issuer and APLD, as applicable, to the Purchaser under this Agreement and, if available, the APLD Closing Certificates or the Issuer Closing Certificates; provided, that, in no event shall the Purchaser be required to expend for the R&W Policy an aggregate premium in excess of Three Million Dollars ($3,000,000). The Purchaser shall keep the Issuer reasonably informed of its efforts to obtain the R&W Policy and shall provide the Issuer with an opportunity to review and comment on drafts of the R&W Policy prior to binding such policy. Should the Purchaser procure the R&W Policy, (i) such R&W Policy shall be at the Purchaser’s sole cost and expense, including all applicable premiums and associated fees and taxes for the R&W Policy, and (ii) the Purchaser shall cause the R&W Policy to expressly provide that the insurer thereunder waives, and agrees not to pursue, directly or indirectly, any subrogation rights, claims of contribution, or rights acquired by assignment or otherwise against the Issuer and APLD or any of their respective direct or indirect equity holders, controlling Persons, members, directors, officers, employees, Affiliates, general or limited partners, or Representatives with respect to any claim made by an insured thereunder, except in the event of Fraud, but then only against the Person that committed such Fraud. The Purchaser, its Affiliates, and its Representatives shall not amend, waive or otherwise modify any such subrogation provision or, in a manner adversely affecting the Issuer, APLD, their respective Affiliates and Representatives, any other provisions of any R&W Policy, without the express written consent of the Issuer.
R&W Policy. Buyer may obtain, and cause to be conditionally bound, the R&W Policy in substantially the form provided to Seller prior to the binding of such R&W Policy. B▇▇▇▇ acknowledges and agrees that all R&W Policy Expenses will be at the sole cost and expense of Buyer or an Affiliate thereof and neither Seller nor any of its Affiliates (including, prior to the Closing, the Transferred Subsidiaries) will have any liability with respect to such R&W Policy Expenses. From and after the binding of the R&W Policy, Buyer will not (and will cause its Affiliates not to) amend, modify, terminate, waive or otherwise change any subrogation or other provision in the R&W Policy (or waive any terms of any such subrogation provision) in a manner adverse to Seller or Seller’s Non-Recourse Parties without the prior written consent of Seller. For the avoidance of doubt, B▇▇▇▇ and S▇▇▇▇▇ acknowledge and agree that the obtaining of the R&W Policy is not a condition to the Closing. Additionally, and without limiting the generality of the foregoing, any rights of any issuer of the R&W Policy, including any rights of subrogation, do not affect, expand or increase any liability or obligation of Seller or its Affiliates in connection with this Agreement. For the avoidance of doubt, Buyer shall, and shall cause the Transferred Subsidiaries to, use commercially reasonable efforts to seek recourse under the R&W Policy first in respect of any Indemnified Taxes for which recourse under the R&W Policy may reasonably be available (even if such Indemnified Taxes may be below the retention amount under the R&W Policy) before seeking recovery under Section 6.2.
R&W Policy. The Buyer has provided the Company and the Sellers with a complete, true and correct copy of the bound commitment for the R&W Policy.
R&W Policy. Prior to or substantially concurrently with the execution of this Agreement, ▇▇▇▇▇ has caused or shall cause to be bound a representations and warranties insurance policy in respect of the Transactions (the “R&W Policy”). The R&W Policy shall provide that (a) the insurer or insurers under the R&W Policy (the “R&W Insurer”) shall have no right of subrogation against Seller or any of its Affiliates (except to the extent Seller or its Affiliates committed Fraud) and the R&W Insurer has waived and shall not pursue any such right of subrogation (except to the extent Seller or its Affiliates committed Fraud) and (b) Buyer is not obligated to bring any claim against Seller or any of its Affiliates prior to bringing a claim under the R&W Policy. Except as set forth in the immediately preceding sentence, Seller shall have no liability to the R&W Insurer under the binder for the R&W Policy or the R&W Policy. Buyer shall not and shall cause its Affiliates not to, amend, modify or otherwise change, terminate or waive any provision of the R&W Policy (i) with respect to the waiver of subrogation set forth therein or (ii) with respect to coverage for breaches of any Fundamental Representations of Seller in any manner that would reasonably be expected to be materially adverse to Seller and its Affiliates, without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), such as with respect to the policy term, retention amount or coverage amount, including in any manner that could materially increase or materially expand the ability or rights of the insurer thereunder to bring an action against, or otherwise seek recourse from, Seller or any of its Affiliates. Buyer is solely responsible for any and all costs, expenses or other payments related to the R&W Policy.
R&W Policy. Buyer and its Affiliates will not amend, waive or otherwise modify the R&W Policy in any manner that would allow the insurer thereunder to subrogate or otherwise make or bring any action against Seller or any of its successors or assigns arising out of, or related to, this Agreement, or the negotiation, execution or performance of this Agreement.
R&W Policy. Exhibit 7.6 sets forth the binder for the R&W Policy. The R&W Policy shall provide that the insurers thereunder may not seek to or enforce any subrogation rights it might have against Seller (except in the case of Fraud by Seller), which provision shall not be amended by Buyer following the Closing in a manner that would adversely affect the rights or obligations of Seller hereunder or thereunder without the prior written consent of Seller.