UPSTREAM BUYER-SIDE REPRESENTATIONS AND WARRANTIES

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Annex A

UPSTREAM BUYER-SIDE REPRESENTATIONS AND WARRANTIES INSURANCE POLICY

DECLARATIONS <ADD STATE SPECIFIC SURPLUS LINES LANGUAGE> Policy Number: Item 1. Named Insured: Address: [ ]

[ ] [ ]

State of Incorporation: [ ]

Additional Insureds: The Buyer Indemnified Parties (as defined in the Acquisition

Agreement), other than the Named Insured. Collectively, the Named Insured, the Additional Insureds and their respective successors, permitted assigns and trustees are referred to herein as the Insureds.

Item 2. Policy Period: From [ ], 2018 (the “Inception Date”) and expiring on [ ],

2021 (the “Expiration Date”); provided that (i) the Expiration Date with respect to the “Oil and Gas Rights Representations” (as defined below) shall be [_____], 20191 (the “Oil and Gas Rights Expiration Date”) and (ii) the Expiration Date with respect to the Fundamental Representations and Section 4.13 Taxes shall be [ ], 20242

Item 3. Limit of Liability: $ in the aggregate Item 4. Retention(s): (1) Retention for General Representations and Fundamental

Representations: With respect to all Loss covered hereunder other than Covered Oil and Gas Rights Loss (as defined below), an amount equal to $[_]3, in the aggregate (the “General Retention”). Subject to Section 2.03 of the Policy, to the extent that the then-remaining General Retention

1 NTD: Date that is 18-months from the Inception Date.

2 NTD: Date that is the 6 year anniversary from the Closing.

3 NTD: Retention for General Representations to be set at 1.5%-1% of the Enterprise Value based on the Agreement and the option from our NBIL that the client decides to go with.

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is greater than $[_] on [ ], 20194, the General Retention will be reduced to $[_], in the aggregate, on such date. For the avoidance of doubt, the General Retention shall only be eroded by covered Loss other than Covered Oil and Gas Rights Loss. (2) Oil and Gas Rights Retention: With respect to Covered Oil and Gas Rights Loss, an amount equal to $[_]5, in the aggregate (the “Oil and Gas Rights Retention,” and together with the General Retention, in each case, the “Applicable Retention”). For the avoidance of doubt, the Oil and Gas Rights Retention shall not be reduced for any reason other than being eroded by a Covered Oil and Gas Rights Loss that has been paid or is payable by the Insurer hereunder (and shall not be subject to any “drop down” feature).

Item 5. Notice to Insurer: A. For a Notice of Breach, matter that would be reasonably expected to give rise to a

Breach, Third Party Demand, and/or Loss, or other notice pursuant to Exhibits C-E of this policy, please do the following:

(1) Email to:

AND (2) Send hard copies by mail to the following two addresses:

B. For all other notices, please mail a hard copy to:

Item 6. Acquisition Agreement: Item 7. Premium: $ [_] Item 8. Producer Name: Mailing Address: 4 NTD: To insert the date that is 18-months from the Inception Date.

5 NTD: Retention for Oil and Gas Rights Representations to be set at 1.5% of the Enterprise Value with no dropdown.

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Signed on behalf of ______________________. Authorized Representative Date

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UPSTREAM BUYER-SIDE REPRESENTATIONS AND WARRANTIES INSURANCE POLICY

EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS POLICY SOLELY COVERS A BREACH OR A THIRD PARTY DEMAND, DULY REPORTED TO THE INSURER, PURSUANT TO THE TERMS CONTAINED HEREIN. THE INSURER DOES NOT ASSUME ANY DUTY TO DEFEND. PLEASE READ THIS POLICY CAREFULLY. THE LIMITS OF LIABILITY AVAILABLE TO PAY FOR INSURED LOSS SHALL BE REDUCED BY AMOUNTS INCURRED FOR COVERED COSTS. ALSO PLEASE NOTE THAT AMOUNTS INCURRED FOR COVERED COSTS AND LOSS SHALL ALSO BE APPLIED AGAINST THE RETENTION AMOUNT. THIS IS A CLAIMS MADE AND REPORTED POLICY. SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN, COVERAGE IS LIMITED TO CLAIMS THAT THE INSURED REPORTS TO THE INSURER PURSUANT TO ARTICLE IV OF THIS POLICY.

This UPSTREAM Buyer-Side Representations and Warranties Insurance Policy (including any Declarations, exhibits, attachments and endorsements attached hereto, collectively, this “Policy”) is issued by the Insurer to the Insureds and represents the complete agreement between the Insurer and the Insureds concerning the coverage to be provided hereunder. Words and phrases that are bolded have special meaning; refer to Article I. Definitions.

WHEREAS, certain of the Insureds have entered into the Acquisition Agreement; and

WHEREAS, the Insureds desire to purchase certain insurance and the Insurer desires to provide such insurance subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the payment of the Premium and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Insureds and the Insurer hereby agree as follows:

Article I. Definitions Section 1.01 Definitions. The following terms, whenever used herein, shall have the following meanings for all purposes of this Policy (such definitions to be equally applicable to both the singular, plural, masculine, feminine and neuter forms of the terms herein defined). Any capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Acquisition Agreement.

(a) Acquisition means the acquisition, merger, consolidation, exchange, or other combination contemplated by the Acquisition Agreement.

(b) Acquisition Agreement means the agreement set forth in Item 6 of the Declarations,

including any certificates, exhibits, schedules or other attachments thereto (as such agreement may be amended, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Policy), an executed copy of which is attached hereto as Exhibit A.

(c) Acquisition Team Members means the individuals whose names are set forth on Exhibit B

attached hereto. (d) Actual Knowledge of a person means with respect to a particular fact, event or condition,

that such person has an actual conscious awareness of such fact, event, circumstance or condition, and with respect to a Breach, that such person has an actual conscious awareness that such fact, event or condition actually constitutes a Breach. The Insurer shall

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bear the burden of proving that any such person had Actual Knowledge of any underlying fact, event and condition and that such fact, event or condition actually constitutes a Breach. For the avoidance of doubt, Actual Knowledge shall not include any imputed or constructive knowledge, nor shall it include any knowledge of any outside advisors or agents.

(e) Additional Insureds means the persons and entities set forth in Item 1 of the Declarations. (f) Affiliate with respect to a particular person or entity, means any other person or entity that

directly or indirectly controls, is controlled by or is under common control with such person or entity.

(g) Applicable Retention shall have the meaning set forth in Item 4 of the Declarations. (h) Breach means:

i) any breach of, or inaccuracy in, any of the representations and/or warranties set forth in

Article IV of the Acquisition Agreement made as of the date of the Acquisition Agreement or as of the Closing Date;

ii) any breach of, or inaccuracy in, any of the Oil and Gas Rights Representations; or

iii) [the Pre-Closing Tax Indemnity].

For purposes of determining whether any Breach, or inaccuracy, has occurred, any “materiality,” “Material Adverse Effect” or similar qualifications limiting the scope of any representation or warranty shall be disregarded; provided, however, that such materiality qualifications shall still apply to and no materiality scrape shall be recognized for Section 4.8 Material Contracts and the Oil and Gas Rights Representations.

(i) Claim Notice means a claim notice substantially in the form attached hereto as Exhibit C. (j) Company means [_]. (k) Covered Costs means the reasonable costs, charges, fees, out-of-pocket expenses and

other documented amounts incurred by or on behalf of the Insureds with respect to a Breach (including attorneys’, accountants’, consultants’ and experts’ fees, costs and expenses and premiums for any appeal bond, attachment bond or similar bond, but without any obligation to apply for or furnish any such bond) in the investigation, settlement, adjustment, defense or appeal of (x) a Third Party Demand and/or (y) any matters relating to a potential Third Party Demand or notice thereof, but only in the event that a Third Party Demand is thereafter made and reported to the Insurer pursuant to the terms herein. For the avoidance of doubt, Covered Costs shall not include any salaries, benefits or other compensation of any directors, officers, employees or consultants of any Insured (other than consultants or experts specifically retained in connection with the investigation, settlement, adjustment, defense, appeal or resolution of a Third Party Demand).

(l) Covered Oil and Gas Rights Loss means any claims for Loss arising out of a Breach of

the Oil and Gas Rights Representations.

(m) Environmental Claims means any claims for Loss caused by or resulting from any [Environmental Claim] (as such term is defined in the Acquisition Agreement), any actions required pursuant to [Environmental Laws] (as such term is defined in the Acquisition Agreement) or any release of or exposure to [Hazardous Materials] (as such term is defined in the Acquisition Agreement), but solely to the extent such Loss is covered under the Environmental Insurance Policy without regard to exhaustion of the limits of liability of such Environmental Insurance Policy.

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(n) Environmental Contamination means any Release of Hazardous Substances.

(o) Environmental Insurance Policy means (i) the [______] Policy, with policy number

[_______], issued by [__________], or (ii) a renewal, replacement or amendment of the foregoing that (X) was renewed, replaced or amended with substantially similar terms and (Y) does not adversely affect the Insurer.

(p) Financials means the Company Financial Statements as such term is defined in the Acquisition Agreement.

(q) Fundamental Representations means the representations found in Sections 4[_] of the

Acquisition Agreement. (r) General Retention shall have the meaning set forth in Item 4 of the Declarations.

(s) Hydrocarbons mean merchantable crude oil, natural gas, condensate, distillate and other

liquid or gaseous hydrocarbons of every kind or any combination thereof.

(t) Insured or Insureds means the Named Insured and the Additional Insureds set forth in Item 1 of the Declarations.

(u) Insurer means _________________. (v) [Interim Breach means any Breach where: (i) any material fact, circumstance, event or

condition that caused or contributed to causing such Breach first occurred during the Interim Period; and, (ii) any of the Acquisition Team Members obtained Actual Knowledge of such Breach during the Interim Period. For the avoidance of doubt, to the extent a Breach existed as of the date of the Acquisition Agreement, such Breach is not an Interim Breach.]

(w) [Interim Period means the period beginning at the execution of the Acquisition Agreement

and ending immediately prior to the Closing Date.]6 (x) Known Title Defects means those defects in the Seller’s oil and gas rights and title to the

assets listed on the attached Annex A.7

(y) Loss means: (i) the amount to which the Insureds are entitled to in respect of a Breach pursuant to the terms of the Acquisition Agreement (including any related Covered Costs payable hereunder), without regard to the survival limitations set forth in Section [_] of the Acquisition Agreement or the liability limitations set forth in Sections [_] of the Acquisition Agreement; [(ii) the amount which any Insured is entitled to recover from the Seller under the Pre-Closing Tax Indemnity;] and (iii) Covered Costs. [For the avoidance of doubt and for purposes of determining a Covered Oil and Gas Rights Loss, the De Minimis threshold for title or ownership defects set forth in Section [___] shall not be disregarded and shall still apply in the application of such loss.]8 Loss shall be net of reserves or accruals included in

6 NTD: For bifurcated sign and close.

7 NTD: We envision attaching a separate annex which lists out those Known Title Defects that arise out of due diligence for purposes of the exclusion.

8 NTD: We do not expect to disregard any De Minimis threshold per claim for defects in title or ownership. While currently, the Agreement draft does not posit such a threshold, we expect to follow the language if included in future drafts and shall only disregard standard Baskets/Caps for the remaining representations as is typical in other Reps and Warranties transactions.

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the Financials (including the notes thereto) specifically identified with respect to such Loss. Loss does not include:

(1) any punitive or exemplary damages, or civil or criminal fines or penalties (except, in

each case, to the extent: (i) insurable under the applicable law of any Most Favorable Jurisdiction; and, (ii) awarded or assessed against the Insureds in connection with a Third Party Demand pursuant to (A) a final settlement consented to in writing by the Insurer in accordance with Article V of this Policy or (B) a final and non-appealable (x) order of a governmental or regulatory agency, (y) judgment of a court of competent jurisdiction or (z) award of an arbitrator, arbitration panel or similar adjudicative body); provided that this exclusion shall not apply to Covered Costs; or

(2) any injunctive, equitable or other non-monetary relief (other than any monetary

damages or out-of-pocket cost incurred by the Insured to comply with any such relief); provided that this exclusion shall not apply to Covered Costs.

For purposes of determining the amount of Loss under this Policy, any “materiality,” “Material Adverse Effect” or similar qualifications limiting the scope of a representation or warranty shall be disregarded; provided, however, that such materiality qualifications shall still apply to and no materiality scrape shall be recognized for the Oil and Gas Rights Representations.

(z) Most Favorable Jurisdiction means any applicable jurisdiction most favorable to the insurability of the matter in question, including where (i) the act, error or omission giving rise to the Breach or the Loss took place, (ii) the Third Party Demand was made, any relief was awarded, (iii) any Insured is organized or has its principal place of business, (iv) the contracting parties to the Acquisition Agreement were located at the time of Closing, (v) the jurisdiction governing the Acquisition Agreement or (vi) the Insurer is organized or has its principal place of business.

(aa) Named Insured means the entity set forth in Item 1 of the Declarations. (bb) No Claims Declaration(s) means: [(i) the Inception No Claims Declaration executed and

delivered to the Insurer in connection with the underwriting of this Policy, an executed copy of which is attached hereto as Exhibit D; and, (ii)] 9 the Closing No Claims Declaration executed and delivered to the Insurer in connection with the underwriting of this Policy, an executed copy of which is attached hereto as Exhibit E.

(cc) Notice Date means the date that is 30 days after the expiration of the Policy Period. (dd) Oil and Gas Rights Expiration Date means [_____], 201910 as set forth in Item 2 of the

Declarations.

(ee) Oil and Gas Representations means any representations or warranties which arise from or relate to Seller’s ownership or title to the assets or are found in [_____] and in Section [_] of the Acquisition Agreement.

(ff) Oil and Gas Rights Retention shall have the meaning set forth in Item 4 of the Declarations.

(gg) Policy shall have the meaning set forth in the Preamble.

9 NTD: For bifurcated sign and close.

10 NTD: To insert the date that is 18-months after the Inception Date.

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(hh) Policy Period means the period of time specified in Item 2 of the Declarations, subject to

prior termination pursuant to Section 11.06. (ii) [Pre-Closing Tax Indemnity means the Sellers’ obligation to indemnify the Buyer

Indemnitees for Taxes with respect to a Pre-Closing Tax Period pursuant to Section [ ] of the Acquisition Agreement, excluding: (i) any taxes related to a Pre-Closing Reorganization by the Seller or the Company; (ii) any transfer taxes, (iii) any matter identified in the Disclosure Schedules to the Acquisition Agreement; and, (iv) any Taxes that are or should be accurately accrued or reserved on the books and records of the Company or its Affiliates as of the Closing Date.]

(jj) Retention Dropdown Date means the date set forth in Item 4 of the Declarations. (kk) Specified Person shall mean: (i) Any chief executive officer, chief financial officer, president,

general counsel or any person who holds a functionally equivalent position to any of the foregoing at any Insured, in each case, only to the extent that such individual holds such position at the time such individual acquired Actual Knowledge of the information regarding such Breach; and (ii) any Acquisition Team Member; provided, however, that such Acquisition Team Member shall only include individuals during the period such person is employed by any Insured. Notwithstanding the foregoing, “Specified Person” shall not include the chief executive officer, chief financial officer, president, general counsel or any person who holds a position functionally equivalent to any of the foregoing, at the Company immediately prior to the Closing unless such person both (x) is the chief executive officer, chief financial officer, president or general counsel (or functionally equivalent positions) of any Insured, and (y) intentionally and willfully withholds or conceals any information learned after Closing that would reasonably be expected to give rise to a Breach, and then only with respect to such information so learned after the Closing.

(ll) Third Party Demand means any demand, complaint, claim, notice, proceeding,

investigation, legal proceeding, audit, arbitration or similar action made or brought against any Insured during the Policy Period by any person or entity, other than: (i) an Affiliate of any of the Insureds (except for an Affiliate of any of the Insureds who, at the time such matter is brought, was not an officer, director, or employee of the acquired companies prior to the Closing Date); (ii) any other Insured (other than employees of the Insureds); or (iii) the Insurer in its capacity as the insurer of this Policy, in each case, which, if successful, would result in Loss (other than Losses that are solely Covered Costs).

Article II. Insuring Agreement; Limit of Liability; Retention Section 2.01 Insuring Agreement. The Insurer shall indemnify the Insureds for, and pay on their behalf any Covered Costs or Loss arising out of or resulting from a Breach or Third Party Demand, provided such Breach or Third Party Demand is reported to the Insurer pursuant to the terms and conditions of this Policy. Section 2.02 Limit of liability. The amount set forth in Item 3 of the Declarations shall be the maximum aggregate Limit of Liability of the Insurer under this Policy. Payment of Covered Costs shall be part of and not in addition to the Limit of Liability, and any payments under this Policy for Covered Costs or Loss shall reduce the Limit of Liability. Subject to Section 6.06 of this Policy, if the Limit of Liability is reached with respect to payments under this Policy, the obligations of the Insurer under this Policy shall be deemed completely fulfilled and shall be terminated. Section 2.03 Retention(s).

(a) The Insurer shall only be liable for Loss in excess of the Applicable Retention amounts shown in Item 4 of the Declarations. Each such Applicable Retention is an aggregate one

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and shall only be eroded by Loss for which the Insurers would be liable under this Policy but for such Applicable Retention. A single Applicable Retention amount shall apply to any Loss arising from all Breaches and Third Party Demands. The Applicable Retention shall only be eroded by any Loss for which the Insurer would be liable under this Policy but for the Applicable Retention (whether or not such amounts are paid by the Insureds or their Affiliates). The Insureds shall not be required to proceed against the Sellers for recovery under the Acquisition Agreement with respect to any Loss prior to delivering a Claim Notice. The Insurer and the Insureds agree that it is the intent of the parties hereto that claims for Losses (or any portion thereof) that exceeds the Applicable Retention shall be subject to recovery under this Policy (subject to the conditions, covenants, limitations and exclusions contained herein) prior to and not conditioned upon obtaining recovery from the Sellers under the Acquisition Agreement with respect to any Loss.

(b) For the avoidance of doubt, the General Retention is a separate retention and shall only be eroded by Loss covered hereunder other than Covered Oil and Gas Rights Loss. The Oil and Gas Rights Retention is a separate retention and shall only be eroded by Covered Oil and Gas Rights Loss payable under this Policy.

(c) [Solely with respect to the General Retention, on the Retention Drop Down Date, to the

extent the then-remaining General Retention set forth in Item 4 of the Declarations is greater than $[_], the General Retention shall be reduced to $[_]]11.

(d) Notwithstanding anything to the contrary herein, to the extent that on or prior to the

Retention Dropdown Date, the Insurer shall: (i) have been notified by the Insured in accordance with this Policy, or (ii) any Specified Person has Actual Knowledge of any (x) Breach or matter under investigation by a Specified Person that would reasonably be expected to give rise to a Breach, (y) Third Party Demand, and/or, (z) Loss, in each case, prior to the Retention Dropdown Date, the General Retention shall not be reduced pursuant to Item 4 of the Declarations with respect to any such Breach, matter, Third Party Demand or Loss or any Loss that is attributable to such Breach or Third Party Demand.

Article III. Exclusions Section 3.01 The Insurer shall not be liable to pay, and no coverage shall be available under this Policy, for that portion of Loss to the extent and only to the extent:

(a) arising out of or resulting from any: (i) Breach of which any Acquisition Team Member had

Actual Knowledge prior to the inception of the Policy Period; [(ii) Interim Breach]; or, (iii) material inaccuracy in any No Claims Declaration (giving effect to the knowledge qualification language contained therein), but with respect to any such material inaccuracy, only to the extent (A) such Loss is proximately related to the substantive content of such material inaccuracy and (B) the Insurer is actually prejudiced by such material inaccuracy;

(b) [(i) actually taken into account in the calculation of the purchase price adjustment pursuant to Section [_] of the Acquisition Agreement (with the intent of this provision to merely be to avoid “double counting” and not to limit any right to recover for Loss arising out of or resulting from any Breach in excess of the amount of such Loss), provided, however, that if the Acquisition Agreement provides that any indemnification made for a Breach shall be deemed an adjustment to the purchase price, such provision shall not have any application to this paragraph; provided, further, that the Insured shall not be required to pursue any purchase price adjustment prior to pursuing recovery under the Policy;] or (ii) indemnification provisions set forth in Section [_s] of the Acquisition Agreement;

11 NTD: This section is only applicable if the client chooses the 1.5% retention option with the dropdown to 1%. If we are staying at 1% NSI for fundamentals/general then there is no drop down at all applied.

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(c) arising out of or resulting from for the monetary amount by which any benefit plans are

unfunded or underfunded or any withdrawal liability relating to such unfunded or underfunded benefit plans;

(d) arising out of or resulting from asbestos or polychlorinated biphenyls; (e) the amount and usability of net operating losses on the Financials; provided, that this

exclusion shall not apply to any actual cash taxes paid by or with respect to the Company for any taxable period (or portion thereof) ending on or before the Closing;

(f) arising out of or resulting from any tax liabilities related to the Pre-Closing Reorganization;

(g) arising out of or resulting from any Known Title Defects;

(h) arising out of any unknown title defects that arose or existed prior to the Company’s

ownership (whether or not such ownership was full or partial) of the assets;

(i) arising out of any title defect for which the Insured had Actual Knowledge of such defect prior to the Inception Date but failed to assert same as a Known Title Defect;

(j) arising out of or resulting from the Employee-Related Liabilities;

(k) [arising out of or resulting from Environmental Contamination]12; or

(l) [Deal Specific Exclusions TBD]. Article IV. Notice Section 4.01 Notice of Claims.

(a) The Named Insured shall deliver a Claim Notice to the Insurer, signed by an authorized representative of the Named Insured, as soon as reasonably practicable (but in no event more than 60 days) after any Specified Person has Actual Knowledge of any: (i) Breach, or matter that would reasonably be expected to give rise to a Covered Oil and Gas Rights Loss, (ii) Third Party Demand; and/or (iii) Loss. For the avoidance of doubt, the Named Insured shall deliver a Claim Notice in each such instance regardless of whether the matters described in such notice will, or are reasonably likely to, give rise to Loss that is within the Retention. Such notice shall provide a reasonably detailed description of the facts and circumstances, to the extent of the Named Insured’s Actual Knowledge leading up to the delivery of the Claim Notice (in light of the Actual Knowledge of the Specified Persons), including a specific reference to the [Pre-Closing Tax Indemnity or the] implicated representations and warranties. Such notice shall also provide a reasonably detailed description of the specific facts and circumstances then known by the Named Insured (as determined based on the Actual Knowledge of any Specified Person prior to the time such Claim Notice is delivered) that show (i) why the Insureds believe that the implicated representations and warranties were misstated or inaccurate, and (ii) the method and manner of determination of the amount of Loss, if any, incurred by any Insured. A Claim Notice may be supplemented by the Insureds at any time after it is first submitted. In no event may a Claim Notice be delivered to the Insurer after the Notice Date; provided, however, if a Claim Notice pursuant to clause (i), (ii) or (iii) of this Section 4.01(a) is delivered to the Insurer during the Policy Period or on or prior to the Notice Date, then any subsequent Loss arising out of the Breach or Third Party Demand identified in such Claim Notice shall be deemed reported at the

12 NTD: Conditional exclusion to be removed pending confirmation of the purchase or renewal of a sufficient underlying Environmental Insurance Policy

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time such Claim Notice was received by the Insurer. Subject to the limitations set forth in the second sentence of Section 4.01(b), with respect to any documents or information that are protected by the attorney-client privilege, work product doctrine, or other privileges, the Insurer shall cooperate in good faith with the Insureds to preserve the privileged status of any such document or information and shall not require written disclosure if, in the written opinion of counsel for the Insured, such disclosure will waive any attorney-client privilege, work product doctrine, or other privileges. Nothing in this Policy shall be construed to require the waiver of any Fifth Amendment or similar protection. No information contained in a Claim Notice shall be deemed an admission by any Insured to any third party of any matter whatsoever (including any violation of law or breach of contract). Nothing in this Policy shall require any cooperation or disclosure by the Named Insured if doing so may reasonably be expected to violate any law or confidentiality agreement to which any Insured is a party. To the extent that the Insured are prohibited from providing any such information or cooperation due to a confidentiality agreement, the Insured shall use commercially reasonable efforts to seek the consent of the other party to such confidentiality agreement to allow the Insurer access to such information.

(b) Subsequent to delivery of a Claim Notice, the Named Insured shall provide the Insurer with a

copy of any material written correspondence between, and any material pleading or other material document delivered or filed by or on behalf of, any of the Insureds, or their respective representatives or Affiliates, and any other person or entity relating to such Claim Notice to the extent in the possession of the Named Insured. The Insurer shall cooperate in good faith with the Insureds to preserve the privileged status of any such correspondence, pleading or other document or information; provided that after such efforts to preserve attorney-client privilege, work product doctrine or other privileges, if the Insurer and the Named Insured agree in good faith that providing such documents or information would cause a loss of any privilege or would cause such documents or information to no longer be protected by work product doctrine, the Insureds shall not be required to provide or cause their Affiliates to provide such documents or information, but the Named Insured shall, and shall cause the other Insureds to, cooperate in good faith with the Insurer to provide the Insurer with comparable documents or information while still preserving the privileged status of (or applicability of work product doctrine to) any such documents or information.

(c) The Insurer shall respond to a Claim Notice as soon as reasonably practicable (but no later than

60 days) after the Insurer receives a Claim Notice notifying it of a Breach, Third Party Demand or Loss, and to the extent the Insurer has sufficient information to do so, shall provide its position on coverage based on the information then available to the Insurer (it being understood and agreed to that the Insurer may need additional confirmation from a third-party title consultant before providing its position on coverage based on a Covered Oil and Gas Rights Loss). To the extent the Insurer does not possess sufficient information to formulate its position on coverage, in such response, the Insurer shall provide an explanation to the Insured as to why it is unable to do so. The Insurer shall use commercially reasonable efforts to respond to any Claims Notice in a manner which provides the Insureds sufficient time to satisfy any litigation deadline or other similar deadlines of which the Insurer has knowledge.

(d) All notices or other communication concerning the subject matter of this Policy shall be in writing

and shall be effective upon receipt and given by prepaid express courier, certified mail, facsimile transmission or e-mail properly addressed to the appropriate party. Notice to the Insureds may be given to the Named Insured at the address shown in Item 1 of the Declarations. Notice to the Insurer pursuant to Subsection (a) above shall be given to the Insurer at the address shown in Item 5A of the Declarations. All other notices to the Insurer under this Policy shall be given to the Insurer at the address shown in Item 5B of the Declarations.

Article V. Third Party Demands; Covered Costs; Settlement

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Section 5.01 Third Party Demand and Claims Participation. The Insurer does not assume any duty to defend the Insureds with respect to any Third Party Demand. The Insureds, to the extent not prohibited by the Acquisition Agreement, shall defend and contest any Third Party Demand with counsel consented to by the Insurer, in writing (email will suffice), which consent shall not be unreasonably withheld, conditioned or delayed; provided that such consent shall not be required for any representation of the Insureds by [_] at then prevailing rates; provided, further, with respect to any counsel appointed by the Insurer of any duty to defend insurance policy, the Insurer’s consent right shall be limited to the extent of any rights of an insured under such duty to defend insurance policy related to any such appointment. The Insureds shall be entitled to incur up to $[_] in Covered Costs without the Insurer’s consent to counsel to mitigate further losses. The Insurer shall be entitled, at its own cost and expense, to reasonably associate in the defense, prosecution, investigation, negotiation and settlement of any Third Party Demand or any matter that appears to the Insurer reasonably likely to involve the Insurer (in its capacity as issuer of this Policy) or this Policy; provided that, subject to the consent rights expressly given to the Insurer in Sections 5.01 and 5.02 of this Policy, the Insureds shall control all decisions with respect to the defense, prosecution, negotiation and settlement of any Third Party Demand. Section 5.02 Settlement Costs. With respect to any Third Party Demand, only Loss (other than Defense Costs) resulting from settlements or stipulated judgments consented to by the Insurer in writing (such consent not to be unreasonably withheld, conditioned or delayed), or resulting from a final judgment by a court of competent jurisdiction, arbitral panel or similar adjudicative body, shall deplete the Retention or be recoverable as Loss; provided, that, with respect to any settlement or stipulated judgment that is solely within the Retention, the Insurer’s consent to such settlement or stipulated judgment shall not be required if the sum of (i) the amount of such settlement or stipulated judgment, (ii) any Loss incurred prior to such settlement or stipulated judgment, and (iii) any Loss alleged in any pending claims (including, for the avoidance of doubt, in the case of the foregoing clauses (i), (ii) and (iii), any paid or anticipated Covered Costs) would not exceed the first 50% of the then-remaining Retention; and provided further the Insurer shall not use as a basis for denying its consent to such settlement or stipulated judgment the granting by the Insureds of an irrevocable and unconditional full and complete waiver and release to any person.

Section 5.03 Payment of Covered Costs. Once the Retention is exhausted, and upon written request by the Named Insured, the Insurer shall, within forty-five (45) days of the Insurer’s receipt of an invoice, reimburse the Insured for Covered Costs previously incurred by the Insured and set forth in such invoice provided such Covered Costs are otherwise entitled to coverage under this Policy. Any advancement of Covered Costs shall be subject to the condition that such advanced amounts shall be repaid to the Insurer by the Insureds, severally according to their respective interests, if and to the extent it is finally determined that the Insureds are not entitled to coverage for such Covered Costs under the terms and conditions of this Policy. For the avoidance of doubt, and notwithstanding anything in the Acquisition Agreement or this Policy to the contrary, (i) reasonable Covered Costs are part of Loss and are subject to the Limit of Liability and (ii) unreasonable Covered Costs shall not constitute Loss hereunder.

Article VI. Certain Covenants of the Insureds Section 6.01 Mitigation. After any Specified Person obtains Actual Knowledge of any event which would reasonably be expected to give rise to any Loss, potential Loss, or any Covered Oil and Gas Rights Loss, the Insureds shall, as soon as reasonably possible, and to the extent required by law and as reasonably requested by the Insurer, shall cause their respective Affiliates to, use commercially reasonable efforts to mitigate such Loss, potential Loss or any Covered Oil and Gas Rights Loss; provided that the failure of any Insured to so mitigate (i) shall only reduce the rights of the Insureds to recover for Loss under this Policy to the extent of the Loss that would have been avoided by such mitigation, and (ii) the burden of proving such amount shall be on the Insurer; provided, further, that if the Insured has a right indemnification pursuant to the Acquisition Agreement for a Breach, the Insured shall not be required to exercise such right prior to making a claim hereunder, subject to the preservation of the Insurer’s rights set forth in Article VII of this Policy. For the avoidance of doubt, any fees, costs and

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expenses incurred by the Insureds in connection with any action taken pursuant to this Section 6.01 shall be considered Losses. Section 6.02 Cooperation and Information. In addition to the obligations set forth in Articles IV and V of this Policy, the Insureds shall, and to the extent reasonably practicable shall use commercially reasonable efforts to cause their respective Affiliates to, cooperate with the Insurer and, in a timely manner, provide the Insurer with complete and accurate information that the Insurer reasonably requests in connection with any Claim Notice or any other matter relating to this Policy. Such cooperation shall include, upon the Insurer’s reasonable written request, permitting the Insurer, at its cost and expense, subject to any existing confidentiality agreements, to examine, photocopy and/or take extracts from the books, records, data, files and information of the Insureds and their respective Affiliates to the extent related to the claim and reasonable access to the Insureds’ and their respective Affiliates’ representatives for interviews during normal business hours and at reasonable locations and upon reasonable advance notice. The Insureds further agree to keep the Insurer reasonably informed of proposed meetings with the Sellers (as set forth in the Acquisition Agreement) or any other relevant third party in connection with any Loss and allow the Insurer to attend such meetings. With respect to any documents or information that are protected by the attorney-client privilege, work product doctrine, or other privileges, the Insurer shall use commercially reasonable efforts to cooperate with the Insureds to preserve the privileged status of any such document or information; provided that after such efforts to preserve attorney-client privilege, work product doctrine or other privileges, if the Insurer and the Named Insured agree, in good faith, that providing such documents or information would cause a loss of any privilege or would cause such documents or information to no longer be protected by work product doctrine, the Insureds shall not be required to provide or cause their Affiliates to provide such documents or information, but the Named Insured shall, and shall cause the other Insureds to, cooperate in good faith with the Insurer to provide the Insurer with comparable documents or information while still preserving the privileged status of (or applicability of work product doctrine to) any such documents or information. Nothing in this Policy shall be construed to require the waiver of any Fifth Amendment or similar protection. No information provided pursuant to this Section 6.02 shall be deemed an admission by any Insured to any third party of any matter whatsoever (including any violation of law or breach of contract). Section 6.03 Actions Regarding the Acquisition Agreement. The Insureds shall not, and to the extent reasonably practicable shall cause their respective Affiliates not to: (i) amend, supplement or rescind the Acquisition Agreement (or enter into any agreement or arrangement that would have such an effect); (ii) give any consent or waiver thereunder; or, (iii) grant any authority to take any of the actions in (i) or (ii) above, in each case, without the prior written consent of the Insurer (such consent not to be unreasonably withheld, conditioned or delayed) if such amendment, supplement, rescission, agreement, arrangement, consent, waiver or grant would reasonably be expected to adversely affect the Insurer or its rights or liability under this Policy.

Section 6.04 Maintenance of Due Diligence Materials. Until the later of 90 days after: (i) the expiration of the Policy Period; or (ii) the final resolution of all claims, disputes, Breaches, and Third Party Demands relating to or presented under this Policy, the Insureds shall, and to the extent possible shall cause their respective Affiliates to, maintain, to the extent within their control and in accordance with the Insureds’ respective record retention policies, all of their respective materials relating to the due diligence conducted in connection with the Acquisition; provided that, the Insureds may destroy documents in the ordinary course of their business consistent with past practices and their document retention guidelines so long as such destruction is not done with the intent to harm the Insurer.

Section 6.05 Other Coverage.

(a) The Insureds shall, or, if applicable, to the extent reasonably possible shall cause their respective Affiliates to, maintain or purchase insurance coverage for the acquired business in a commercially reasonable manner consistent with the historical practices of the Insureds, updated in the ordinary course of their business not in a manner which adversely affects the Insurer. The coverage provided under this Policy shall be excess to any other valid and collectible insurance

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policy with respect to any loss arising out of or resulting from the underlying facts and circumstances of any (i) Breach or matter that would reasonably be expected to give rise to a Breach, (ii) Third Party Demand and/or (iii) Loss. The Named Insured shall, at the Insurer’s reasonable request, investigate, and shall discuss with the Insurer, whether any bond, indemnity or other insurance policy is applicable or available with respect to the matters described in any Claim Notice; provided that subject to Section 6.06 of this Policy, any dispute as to the applicability of, or delay in obtaining, coverage pursuant such bond, indemnity or other insurance policy shall not be a basis for refusal of payment hereunder, provided further that such delay in obtaining coverage does not materially prejudice the Insurer. The Named Insured shall not be obligated to first pursue claims for Breach against any other insurance policy or other source of recovery prior to being eligible for any payment under this Policy and if there is a dispute as to whether the coverage under this Policy shall be excess of other coverage or if other coverage shall be excess of the coverage under this Policy, the Insureds may recover under this Policy and the Insurer shall be subrogated to the extent provided in Article VII of this Policy to the Insureds’ rights to such other coverage.

(b) For the avoidance of doubt, this Section 6.05(b) and not Section 6.05(a), shall apply with respect to the Environmental Insurance Policy. Notwithstanding anything herein to the contrary, with respect to Environmental Claims, it is understood and agreed that the coverage provided under this Policy shall be specifically excess of such coverage provided for under the Environmental Insurance Policy, and no coverage will be available under this Policy for Claims as to which the Environmental Insurance Policy applies (and the General Retention shall not be eroded hereunder) unless and until the following conditions have been met: (a) the retentions of the Environmental Insurance Policy have been fully eroded pursuant to the terms and conditions of the Environmental Insurance Policy, and (b) the limit or limits of liability of the Environmental Insurance Policy shall have been completely exhausted through the payment of loss by the insurer thereunder (or in the event that the loss is payable thereunder but is not collectible because of the insolvency of the applicable insurer(s) in the Environmental Insurance Policy, and such uncollectible amounts have been paid or incurred by the insured) or shall have been otherwise fully eroded or surrendered by the insured thereunder pursuant to a written agreement with the insurer(s) of the Environmental Insurance Policy. If the Environmental Insurance Policy has (i) ceased to be in full force and effect due to any act or omission of any Insured (including any failure to renew such policy, unless replaced with a policy in accordance with the definition of Environmental Insurance Policy) or (ii) been modified or amended without the consent of the applicable insurer (except for modifications or amendments that are (A) permitted by or otherwise consented to under the Environmental Insurance Policy, or (B) consented to by the applicable issuer or insurer of such policies), in each case, such that the Insurer is adversely affected thereby with respect to Environmental Claims, then this Policy shall continue to cover Environmental Claims, but the Insureds, or an insurer providing replacement coverage (if such replacement coverage is obtained), shall be liable for the amount of the underlying limits of liability and retentions of such ceased, modified or amended (as applicable) Environmental Insurance Policy, and the Insurer shall be liable for Environmental Claims only to the extent that it would have been liable had the Environmental Insurance Policy not ceased or been modified or amended.

Section 6.06 Right of Offset & Refunds to Insurer. Any Loss shall be reduced by the amount of any offsetting recoveries received from a third party, including recoveries from other insurance policies or indemnitees (in each case, other than any amounts paid by or on behalf of the Seller(s) within the Retention) or any tax benefit that are specifically attributed to any deduction, loss, credit or other benefit resulting from or arising out of such Loss. After any payment by the Insurer in connection with this Policy, (i) if it is determined pursuant to the procedures set forth in Article IX of this Policy that all or any portion of the amount paid did not constitute Loss or is excluded from coverage under this Policy or (ii) if any of the Insureds or any of their respective subsidiaries receive, directly or indirectly, amounts from any other insurance, indemnification or other source (including any tax benefit actually received as a direct result of such Loss), which, when netted against any cost of recovery or other Loss, reduces the amount of Loss actually incurred, then the Insureds or such subsidiaries shall promptly, and in no event later

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than 90 days after such determination or receipt, reimburse or refund to the Insurer the amount overpaid. For the avoidance of doubt, to the extent the remaining Limit of Liability was depleted in respect of any payment by the Insurer pursuant to the immediately preceding sentence, the remaining Limit of Liability shall, following its reimbursement or refund to the Insurer, immediately be increased by such amount for the duration of the Policy term. Further, Loss shall not be reduced under this Policy by (i) any retentions or deductibles paid by the Insured under any other insurance policies; (ii) any increase in premium under such policies directly attributable to the Loss giving rise to such offsetting recoveries, and only to the extent of such increase; or (iii) any reasonable costs and expenses incurred by the Insured solely in connection with the recovery of such offsetting recoveries that is outside of the Insured’s ordinary course of business costs and expenses and are directly attributable to such recovery.

Section 6.07 Failure to Comply. Any failure of the Insureds to comply with any of the provisions of Articles 4, 5, 6 or 7 of this Policy shall not relieve the Insurer of its obligations under this Policy except to the extent (and then only to such extent) the Insurer is actually prejudiced thereby. Notwithstanding the foregoing, for the avoidance of doubt, in no event may a Claim Notice be delivered to the Insurer later than 45 days following the expiration of the Policy Period. Article VII. Subrogation

Section 7.01 After a Specified Person has Actual Knowledge of any (i) Breach or matter that would reasonably be expected to give rise to a Breach, (ii) Third Party Demand and/or (iii) Loss, the Insureds shall and to the extent reasonably practicable shall cause their respective Affiliates to take commercially reasonable steps to preserve any indemnification, subrogation or other rights against any other person or entity for such Loss, and use commercially reasonable efforts to preserve the Insurer’s subrogation rights with respect thereto. Section 7.02 Except as provided below, in the event and to the extent of any payment by the Insurer under this Policy, the Insurer shall be subrogated to, and the Insureds shall assign to the Insurer, all of the Insureds’ respective rights of recovery of the Insureds against any person or entity (other than (i) the acquired business, (ii) the Company, (iii) any Insured or (iv) any direct or indirect shareholder, member, director, officer or partner (or the functional equivalent of any such position), of any of the foregoing, except, in the case of the foregoing clauses (i), (ii), (iii) and (iv), if such entity or individual was affiliated with the acquired business, the Company or any of its Affiliates prior to the Closing) based upon, arising out of or relating to such payment; provided that the Insurer shall have no such right of subrogation against any Insured or the Sellers (as set forth in the Acquisition Agreement), or any of their Affiliates, or any member, director, officer or partner of an Insured or the Sellers, except in cases of fraud or intentional misrepresentation. With respect to subrogation claims against customers, clients or suppliers of any person or entity described in clauses (i) through (iii) of the preceding sentence, the Insurer shall not be entitled to subrogate against such customers, clients or suppliers for Losses without the express prior written consent of the Named Insured (such consent not to be unreasonably withheld, conditioned or delayed) until the aggregate amount of all such Losses exceeds $[_] (“Subrogation Threshold”); provided that after such Losses exceed the Subrogation Threshold, the Insurer shall be permitted to subrogate against such customers (except with respect to sales taxes), clients or suppliers without the consent of the Named Insured and the Insurer shall only be required to provide notice to the Named Insured of its intent to institute such subrogation claim. If the Insureds are unable to assign such rights to the Insurer, then, instead of assigning such rights to the Insurer, the Insureds shall allow the Insurer to bring suit in their name. The Insureds shall, and to the extent reasonably possible shall cause their respective subsidiaries to, cooperate with the Insurer and use commercially reasonable efforts (including execution of any papers and the taking of other actions as the Insurer may reasonably request) to secure and further such subrogation and assignment rights, all at the sole cost and expense of the Insurer. In no event shall the Insureds or their respective Affiliates knowingly waive any rights in a manner that would reasonably be expected to adversely affect any such subrogation or assignment rights. Section 7.03 Any amounts recovered by the Insurer as a result of the exercise of subrogation rights shall be applied in the following order: (i), to reimburse the Insurer for any costs and expenses incurred in

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connection with such recovery; (ii) to reimburse the Insured for any Loss borne by it in excess of the Limit of Liability under this Policy (but for avoidance of doubt, only to the extent of such excess); (iii) to reimburse the Insurer in respect of any Loss which the Insurer has paid under this Policy; and (iv) to reimburse the Insureds in respect of any Loss which the Insureds have retained by reason of the Retention. For the avoidance of doubt, the remaining Limit of Liability shall immediately be increased by any amount paid to the Insurer pursuant to clause (iii) of the precedent sentence.

Section 7.04 The Insurer shall bear all costs and expenses incurred in connection with any subrogation efforts or actions taken by the Insurer and the Insurer shall promptly reimburse the Insureds, and their Affiliates for any reasonable and documented costs and expenses incurred in connection with any subrogation efforts in connection with this Article VII. Notwithstanding the foregoing, in the event of any cross-claim, counterclaim or third party demand asserted against the Insured in connection with any assignment or subrogation claim pursued by the Insurer, which counterclaim or third party demand arises out of the same or similar facts and allegations out of which such subrogation or assignment arose or would itself lead to a Breach, the Insurer shall, subject to the terms and conditions of this Policy (including without limitation, the Retention, Limit of Liability and exclusions), indemnify the Insureds (including, but not limited to the reimbursement for Covered Costs) with respect to such cross-claim, counterclaim or third party demand. Except for the foregoing, the Insureds shall defend at their own expense, and satisfy any liability with respect to, any cross-claim, counterclaim or third party demand asserted in connection with any subrogation or assignment claim pursued by the Insurer, except to the extent such counterclaim or third party demand, if determined adversely to the Insureds or their Affiliates, would reasonably be expected to give rise to Loss, in which case the Insurer shall, subject to the terms and conditions of this Policy (including without limitation, the Retention, Limit of Liability and exclusions) indemnify the Insureds (including, but not limited to the reimbursement for Covered Costs) with respect to such counterclaim or third party demand and satisfy any liability with respect to Loss covered hereunder.

Article VIII. Modification; Assignment; Entire Agreement Section 8.01 Modification; Assignment. No change in, modification of, or assignment of interest by the Insureds under this Policy shall be effective except when made by a written endorsement to this Policy which is signed by an authorized representative of the Insurer, provided that such consent shall not be required: (i) for any assignment to an Affiliate of any Insured; or (ii) in the event of any stock purchase, merger, consolidation or sale of all or substantially all of the assets of the Named Insured to an unrelated purchaser, or (iii) in the event of an assignment of any or all of the Insureds’ interest in this Policy to a lender to any of the Insureds or the acquired business as collateral security. Notwithstanding anything to the contrary in this Policy, in no event may an assignee of the Named Insured by an entity formed in a jurisdiction outside of the United States or an individual that is not a citizen of the United States. The Insurer may assign this Policy to another insurer that is a subsidiary or affiliate of the Insurer without the consent of the Insureds provided such other insurer’s financial strength rating (Moody’s or Standard & Poor’s) is equal to or better than that of the Insurer at the time of such assignment. Notwithstanding anything to the contrary in this Policy, in no event may an assignee of the Named Insured be an entity formed in a jurisdiction outside of the United States or an individual that is not a citizen of the United States. Section 8.02 Entire Agreement. The Insureds agree that the Policy, including the Declarations, endorsements, exhibits and attachments, shall constitute the entire agreement between the Insurer or any of its agents and the Insureds relating to this insurance and supersedes any prior oral or written agreements, discussions or other communications entered into between the Insurer and/or its Affiliates (including their respective representatives), on the one hand, and the Insureds and/or their respective Affiliates (including their respective representatives), on the other hand, concerning the subject matter of this Policy. Article IX. Mediation; Arbitration; Choice of Law; Interpretation and Rules of Construction

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Section 9.01 Mediation. Any dispute, claim or controversy arising out of or relating to this Policy or the breach, termination, enforcement, interpretation or validity thereof, shall be submitted to JAMS, or its successor, for non-binding mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration as provided in Section 9.02. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Section 9.02 Arbitration. Either party may initiate arbitration with respect to the matters submitted to mediation pursuant to Section 9.01 by filing a written demand for arbitration with JAMS, and notifying the other party, at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first ("Earliest Initiation Date"). The mediation may continue after the commencement of arbitration if the parties so desire. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Policy except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled from the filing of a written demand for mediation pursuant to Section 9.01 until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling. The place of the arbitration shall be New York City, New York, or such other place as may be mutually agreed by the Insurer and the Insureds, and the arbitration tribunal shall be comprised of three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) except as otherwise provided herein. The party initiating arbitration shall notify in writing the other party and JAMS of the name, address and occupation of the arbitrator nominated by the demanding party. The other party shall, within 30 days following receipt of the demand, notify in writing the demanding party of the name, address and occupation of the arbitrator nominated by it. The two arbitrators so selected shall, within 30 days of the appointment of the second arbitrator, select an umpire. If the arbitrators are unable to agree upon an umpire, the umpire shall be selected in accordance with Rule 15 (as may be amended from time to time) of the JAMS Rules for the selection of a sole arbitrator. The decision of at least two of the three panel members shall be binding and final and not subject to appeal except as provided by applicable law or the JAMS Rules. The award will be issued within 30 days of the close of the hearings. Judgment on the award may be entered in any court having jurisdiction and as provided in Article X of this Policy. The Named Insured and the Insurer shall bear its own fees and expenses, and the fees and expenses of each of their designated arbitrators, and shall jointly and equally share with the other the fees and expenses of the umpire, JAMS and the mediator. Section 9.03 Choice of Law. The construction, validity and performance of this Policy shall be interpreted and governed under the laws of the State of Delaware, without reference to conflicts-of-laws principles that would require or allow for the application of the law of any other jurisdiction. For purposes of this Policy, the Acquisition Agreement shall be interpreted under the laws of the jurisdiction chosen therein or, where no jurisdiction is so chosen, by the laws of the State of Delaware, without reference to conflicts-of-laws principles that would require or allow for the application of the law of any other jurisdiction. Notwithstanding the foregoing, solely for the purposes of determining the insurability of special, punitive and exemplary damages (including treble, multiplied or other damages punitive in nature) or fines and penalties, this Policy, where legally allowable, shall be governed by the applicable law of any Most Favorable Jurisdiction. It should be noted that special, punitive and exemplary damages (including treble, multiplied or other damages punitive in nature) or fines and penalties, are not insurable under the laws of the State of New York.

Section 9.04 Interpretation. This Policy shall be construed in the manner most consistent with the relevant terms and conditions of this Policy without regard to authorship of language and without any

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presumption in favor of either party. The descriptions in the headings of this Policy are solely for convenience, and form no part of the interpretation or the terms and conditions of coverage. The words “include” or “including” in this Policy shall be deemed to be followed by the words “without limitation.” Section 9.05 Nothing in this Article IX shall preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Article X. Jurisdiction

Section 10.01 Jurisdiction. In the event of judicial proceedings in connection with this Policy as permitted by Article IX, the Insureds irrevocably submit to the exclusive jurisdiction of the federal and state courts of the place of incorporation or principal place of business of the Insurer, or, if it has or can acquire jurisdiction, in the State of New York (and, in each case, any appellate court therefrom). Article XI. Miscellaneous Section 11.01 Representations. By accepting this Policy, the Named Insured represents and warrants to the Insurer that each of the Additional Insureds has: (i) irrevocably appointed the Named Insured as its agent and attorney in fact to take any action required to be taken by it hereunder; (ii) agreed to be bound by any and all actions taken by the Named Insured on its behalf and (iii) acknowledged in writing that the Named Insured has an interest in the subject matter of this Policy and that the appointment of the Named Insured constitutes an irrevocable power of attorney coupled with an interest; and (iv) acknowledged in writing that the Insurer shall be entitled to rely exclusively upon any written notice given by the Named Insured and that the Insurer shall not be liable in any manner for any action taken or not taken in reliance upon any notice given by the Named Insured. Section 11.02 Bankruptcy. Bankruptcy or insolvency of any Insured shall not relieve the Insurer of any of its obligations under this Policy. In such event, including any liquidation or reorganization proceeding of the Company, then each Insured and the Insurer hereby agree not to oppose or object to any efforts by any Insured person to obtain relief from any stay or injunction.

Section 11.03 Valuation; Currency. All premiums, limits of liability, retentions, Loss and other amounts under this Policy are expressed and payable in the currency of the United States of America. If judgment is rendered, settlement is denominated or other elements of Loss are stated or incurred in a currency other than the United States of America, payment of covered Loss due under this Policy, subject to its terms, conditions and limitations, will be made either in such other currency (at the option of the Insurer and with the agreement of the Parent Company), or in the United States of America dollars at the rate of exchange most recently published in The Wall Street Journal on the date of the Insurer’s obligation to pay such Loss is established. Section 11.04 Action Against the Insurer. No action shall lie under the Policy against the Insurer except as consistent with Article IX of this Policy or as permitted by applicable law. Section 11.05 Authorization Clause. By acceptance of this Policy, the Named Insured agrees to act on behalf of all Insureds with respect to the giving and receiving of notice of Breach, Third Party Demand, Loss or termination, the payment of premiums and the receiving of any return premiums that may become due under this Policy, the agreement to and acceptance of endorsements, and the giving or receiving of any other notice provided for in this Policy, and the Insureds agree that the Named Insured shall so act on their behalf. Section 11.06 Termination; Renewal.

(a) This Policy is non-cancellable, except upon 10 business days written notice by the Insurer to

the extent the Insureds fail to pay the premium within 30 days of the Closing (during which period the Insureds shall be permitted to cure such failure).

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(b) This Policy is non-renewable.

(c) This Policy is non-rescindable; provided, however, that this Policy may be rescinded by the Insurer in the case of fraud or intentional misrepresentation.

(d) The premium set forth in Item 7 of the Declarations is non-refundable and fully earned at the

time of payment.

Section 11.07 Headings. The Section and Article headings contained in this Policy are for reference purposes only and shall not affect the meaning or interpretation of this agreement.

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EXHIBIT A

ACQUISITION AGREEMENT

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EXHIBIT B

ACQUISITION TEAM MEMBERS

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EXHIBIT C

CLAIM NOTICE

All bold and capitalized terms used in this Claim Notice shall have the meanings ascribed to them in the Policy. In accordance with the term of the Policy, the undersigned Named Insured hereby certifies as follows:

1. ACTUAL KNOWLEDGE OF BREACH OR POTENTIAL BREACH: A Specified Person has Actual Knowledge of a Breach or facts, circumstances or other matters that could reasonably be expected to give rise to a Breach. Signatory to insert initials after Yes or No as applicable:

YES. If Yes, please provide further information in an attachment as requested.

NO

Attached hereto is a reasonably full description and explanation of such matter and all material facts currently known with respect thereto. Without limiting the foregoing, such attachment includes, but is not limited to, an identification of the representation(s) and warrant(ies) which have been or may have been breached, as well as a description of such Breach or possible Breach, the date any Specified Person first learned of such Breach or possible Breach, and an estimation of the amount of Loss at issue or the amount which could reasonably be anticipated to arise as a result thereof.

2. THIRD PARTY DEMAND: The Named Insured has become aware that a Third Party Demand

has been asserted. Signatory to insert initials after Yes or No as applicable:


NO Attached hereto is a reasonably full description and explanation of the material facts, circumstances and issues currently known with respect to such Third Party Demand. Without limiting the foregoing, such attachment includes, but is not limited to, the identity of the party making the demand, the amount or an estimation of the Loss or potential Loss related thereto, the identification of the representation(s) and warrant(ies) allegedly breached with respect to such Third Party Demand, the facts alleged by the Third Party Demand, along with copies of relevant documents related to such Third Party Demand.

3. LOSS HAS OCCURRED: A Loss has occurred. Signatory to insert initials after Yes or No as applicable:


NO

Attached hereto is a reasonably full description of the Loss, including, but not limited to, the amount of such Loss, the date on which the Loss occurred, a description and explanation of the material facts, circumstances and issues currently know with respect to such Loss, the identification of the representation(s) and warrant(ies) allegedly breached with respect to such Loss, along with copies of relevant documents related to such Loss.

INSERT NAME OF INSURED: [ ]

Signature: Printed Name:

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Date: Title:

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EXHIBIT D INCEPTION – NO CLAIMS DECLARATION

All bold and capitalized terms used in this Inception – No Claims Declaration shall have the meanings ascribed to them in the Policy. This Inception – No Claims Declaration is provided to [Insert Insurance Company Entity] as a condition to the issuance of the Policy. The undersigned, [insert name and title] of the Named Insured, in [his or her] capacity as a representative of the Insured and not in [his or her] personal capacity, hereby certifies as of immediately prior to Inception Date that:

1. Each of the Acquisition Team Members, has read and understands the Acquisition Agreement (together with all schedules, exhibits and attachments thereto), the other transaction documents and the final (or to the extent not final, the most current draft) of the written due diligence reports (if any) prepared by or on behalf of the Insureds and/or their advisors in connection with the transactions contemplated by the Acquisition Agreement.

2. No Acquisition Team Member has any Actual Knowledge of any Breach, except as disclosed

below:

3. The Insurer has been provided with true and complete copies of (a) the Acquisition Agreement,

together with all schedules, exhibits and attachments thereto (b) all final (or to the extent not final, the most current draft) of the written due diligence reports prepared by the Insured’s advisors in connection with the transactions contemplated by the Acquisition Agreement and (c) all relevant title documentation prepared by the Insured’s title or land advisors related to the assets listed on the attached Annex A and the transactions contemplated by the Acquisition Agreement.

4. None of the Acquisition Team Members has Actual Knowledge that any of the documents or information provided to the Insurer with respect to the underwriting of the Policy is materially false, inaccurate or misleading or omits any material fact.

5. There are no side-letters or other agreements related to the transactions contemplated by the

Acquisition Agreement that have not been delivered to the Insurer.



Date: Title:

HNDOCS01/81302.1 25

EXHIBIT E

CLOSING – NO CLAIMS DECLARATION

All bold and capitalized terms used in this Closing - No Claims Declaration shall have the meanings ascribed to them in the Policy. This Closing - No Claims Declaration is provided to [Insert Insurance Company Entity] as a condition to the issuance of the Policy. The undersigned, [insert name and title] of the Named Insured, hereby certifies as of immediately prior to Closing Date that:

1. Each of the Acquisition Team Members, has read and understands the Acquisition Agreement (together with all schedules, exhibits and attachments thereto), the other transaction documents and the final (or to the extent not final, the most current draft) of the written due diligence reports (if any) prepared by or on behalf of the Insureds and/or their advisors in connection with the transactions contemplated by the Acquisition Agreement.

2. [No Acquisition Team Member has any Actual Knowledge of any Interim Breach, except as disclosed below:]

[ ]

3. The Insurer has been provided with true and complete copies of (a) the Acquisition Agreement,

together with all schedules, exhibits and attachments thereto (b) all final (or to the extent not final, the most current draft) of the written due diligence reports prepared by the Insured’s advisors in connection with the transactions contemplated by the Acquisition Agreement and (c) all relevant title documentation prepared by the Insured’s title or land advisors related to the assets listed on the attached Annex A and the transactions contemplated by the Acquisition Agreement.

4. There are no side-letters or other agreements related to the transactions contemplated by the

Acquisition Agreement that have not been delivered to the Insurer.

5. None of the Acquisition Team Members has Actual Knowledge of any matter that would reasonably be expected to cause the conditions set forth in Article [ ] of the Acquisition Agreement to not be satisfied.



Date: Title:

Documents

UPSTREAM BUYER-SIDE REPRESENTATIONS AND WARRANTIES