W&I Insurance Sample Clauses
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W&I Insurance. (a) The Purchaser acknowledges and agrees that the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings are solely given by the Seller with a view to enabling the Purchaser to take out a W&I Insurance. Against this background, the Purchaser acknowledges and agrees that (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “W&I Insurance” and the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that nothing herein shall be construed to require the Purchaser to contract for, subscribe or otherwise take out a W&I Insurance.
(b) It is hereby acknowledged and agreed by the Parties that any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be excluded and be EUR 0 (in words: zero Euros) (the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk of non-implementation of the W&I Insurance as well as the validity and collectability risk in respect of the W&I Insurance and hence, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out the W&I Insurance or not.
(c) The Purchaser shall procure (steht dafür ein) that the Insurer shall not be entitled, under the W&I Insurance or otherwise, to subrogate against th...
W&I Insurance. 3.1 The Buyer irrevocably and unconditionally agrees that, notwithstanding any other provision of this Deed and regardless of whether the Buyer takes out an effective W&I Insurance Policy but other than in the case of fraud by the Management Warrantors:
3.1.1.1 it will not be entitled to make, will not make and waives any right it may have to make, any Claims against the Management Warrantors which would, in aggregate for all Claims, exceed $1.00 (the “Management Warrantors’ Cap”);
3.1.1.2 its sole recourse, remedy and right of recovery in respect of all Claims, except to the extent of the Management Warrantors’ Cap, shall be to make a claim under the W&I Insurance Policy;
3.1.1.3 the absence of recourse, remedy or right of recovery of the Buyer under the W&I Insurance Policy in respect of any Claim (including as the result of any limitation, exclusion, deduction or derogation under, or any invalidity or illegality of, the W&I Insurance Policy or the W&I Insurance Policy not having been incepted) and/or any inability of the Buyer to obtain any remedy in respect of a Claim under the W&I Insurance Policy for any reason whatsoever (including, without limitation, any winding up, bankruptcy or other insolvency proceedings affecting the W&I Insurer, any failure of the W&I Insurer to perform its obligations under the W&I Insurance Policy or any deductible, threshold or other financial limitation applying to the W&I Insurance Policy) shall not affect or increase the liability of any Management Warrantor under this Deed or the Management Warrantors’ Cap;
3.1.1.4 any failure on the part of the Buyer to obtain and/or comply with the terms of the W&I Insurance Policy shall not create, affect or increase any Management Warrantor’s liability pursuant to or in connection with this Deed in any way; and
3.1.1.5 no right of recission, repudiation or termination on the part of the Buyer shall be available in respect of this Clause 3 for any reason, including as a result of any breach of any Warranties.
3.2 The Buyer covenants to each Management Warrantor that:
3.2.1.1 the W&I Insurance Policy includes a binding and irrevocable third party stipulation for no consideration for the benefit of the Management Warrantors that the W&I Insurer is not entitled to subrogate against, or otherwise claim from, the Management Warrantors under, or in connection with, this Deed, except against a Management Warrantor in respect of their fraud;
3.2.1.2 at such time as the Buyer puts in place ...
W&I Insurance. 16.1 The Buyer shall maintain in force the W&I Policy and shall ensure that:
(a) the W&I Policy includes a binding and irrevocable third party stipulation for no consideration for the benefit of the Seller that the W&I Insurer is not entitled to subrogate against, or otherwise claim from, the Seller or any of its directors and officers under, or in connection with, this Agreement, except in the case of fraud by the Seller or any of its directors or officers;
(b) the terms of the W&I Policy related to subrogation or claims for contribution are not amended or varied without the prior written consent of the Seller (such consent not to be unreasonably withheld or delayed);
(c) the insurance premium payable in connection with the W&I Policy is paid to the W&I Insurer as required under the W&I Policy; and
(d) neither the Buyer nor any member of the Buyer Group shall terminate, cancel or take any other action or omit to do anything which would make the W&I Policy void.
W&I Insurance. In the period between the date of this Agreement and Closing:
W&I Insurance. 14.1 It is agreed and acknowledged that, as at the date of this Agreement, the Purchaser entered into the W&I Policy, which contains: (i) a waiver from the W&I Insurer waiving all its rights (or an express statement that it has no such rights) to take subrogated action or to exercise rights assigned to it against any member of the Seller Group or their Agents in relation to any claim for breach of the Warranties under Clause 11.1 or any claim under the Tax Covenant, other than in the event of fraud or fraudulent misrepresentation by a Seller, and then only against that particular Seller to the extent that the Claim arises directly as a result of fraud or fraudulent misrepresentation (“W&I Waiver”); and (ii) a third party rights provision in favour of the Sellers allowing the Sellers, pursuant to the terms of the W&I Policy, to directly enforce the provisions of the W&I Waiver.
W&I Insurance. W&I insurance
12.1 The Purchaser has (in consultation with the Sellers) arranged for a warranty and indemnity insurance (the “W&I Insurance Policy”) in the name of the Purchaser with Acquinex Limited (the “W&I Insurance Provider”) in order to provide additional recourse for claims by the Purchaser under this Agreement.
12.2 Subject to the limitations of liability contained in Clause 13 (Liability of Sellers), the Warrantor (and, with respect to the Indemnities, also the other Sellers) will remain liable for any Uninsured Claims.
12.3 The premium of the W&I Policy and the costs and expenses in relation to entering into the W&I Insurance Policy (including the underwriting fee), shall for 50% be borne by the Sellers and for 50% be borne by the Purchaser. The premium of the W&I Insurance Policy and the aforementioned costs and expenses will be settled between the Parties at Notarial Transfer through the financial statement of costs as drafted by the Notary in accordance with the Notary Letter.
12.4 The Purchaser has procured that the W&I Insurance Policy includes a binding and irrevocable third-party stipulation for no consideration (onherroepelijk derdenbeding om niet) for the benefit of the Sellers and its managers that the W&I Insurance shall not claim from any Seller and its management in connection with any claim for breach of the Warranties, except in the event of fraud (bedrog) or wilful misconduct by the relevant Seller or its management.
12.5 The Purchaser shall be responsible for the actual and timely payment of the W&I Insurance premium to the W&I Insurance Provider and the timely performance of all other actions and requirements under or pursuant to the W&I Insurance. The Purchaser shall provide the Sellers (i) evidence of the actual and timely payment of the W&I Insurance premium to the W&I Insurance Provider and (ii) a copy of the executed W&I Insurance Policy, as soon as possible after the Notarial Transfer.
W&I Insurance. Policy 16.
W&I Insurance. The Purchaser confirms and represents to the Seller that it has taken out warranty and indemnity insurance under an insurance policy a copy of which is attached hereto in Exhibit 18.6.1, (the “W&I Insurance” and the relevant insurance provider(s) as therein identified (collectively), the “Insurer”). The Purchaser shall refrain from any actions or omissions that adversely affect its coverage position under, or the continuation of, the W&I Insurance.
W&I Insurance. From the date hereof to the Closing, the Company shall use commercially reasonable efforts to provide, and shall cause each of the Company’s Subsidiaries to provide and shall use reasonable best efforts to cause its and their respective Representatives to provide, such cooperation reasonably requested by the Purchaser in connection with the execution of an Insurance Policy, including (a) making senior management of the Company and its Subsidiaries reasonably available for customary conference calls with one or more brokers or underwriters, and (b) cooperating with brokers and underwriters in performing their due diligence (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). All costs and expenses related to the Insurance Policy shall be paid by or on behalf of the Purchaser, including any costs and expenses actually incurred and paid by the Company or any of its Subsidiaries to third parties in connection with this Section 7.11.
W&I Insurance. The W&I Insurance (as well as any other W&I or similar insurance the Purchaser may have taken out prior to the Closing Date or will take out thereafter) provides for the benefit of the Seller that any claims against the Seller shall only be subrogated (by operation of law or contractually) in case of willful deceit (arglistige Täuschung) or intentional behavior (Vorsatz) by Seller.