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. 6.1 Notwithstanding any other provision of this agreement (other than sub-paragraphs 2.1 and 2.2 of this schedule), any other Transaction Document or any other matter or thing but subject to Clause 11.13:
(a) the Purchaser agrees that it will not be entitled to make, will not make, and irrevocably waives any right it may have to make any Warranty Claim or Tax Covenant Claim against the Sellers or any of them except to the extent of $1.00 in aggregate and then only if and to the extent required to permit or facilitate a claim by the Purchaser under the W&I Insurance Policy against the W&I Insurer, but only on the basis that the Sellers will have no liability whatsoever for any such claim;
(b) the Purchaser's sole recourse in respect of all and any Warranty Claims (other than a Fundamental Warranty Claim) and any and all Tax Covenant Claims shall, except to the extent of $1.00 in aggregate and subject to the preceding paragraph, be under the W&I Insurance Policy; and
(c) any inability of the Purchaser to pursue or obtain any remedy in respect of any Warranty Claim (other than a Fundamental Warranty Claim) or Tax Covenant Claim under the W&I Insurance Policy, whether due to policy terms, exceptions or exclusions, validity (including if the W&I Insurance Policy is invalid due to the insolvency, breach or default of any person), creditworthiness or for any other reason, shall not affect or in any way increase the liability of the Sellers under this agreement and the Sellers shall bear no responsibility for such exceptions or exclusions under any and all circumstances.
6.2 The Purchaser agrees that it will comply with all terms of the W&I Insurance Policy.
6.3 The Purchaser acknowledges that:
(a) the liability of the underwriters under the W&I Insurance Policy shall be subject to the limitations and exclusions expressly set out therein and the Sellers shall bear no responsibility for such limitations and exclusions under any and all circumstances; and
(b) the Sellers have entered into this agreement in reliance of the fact that the Purchaser will obtain the W&I Insurance Policy.
6.4 If there is any conflict or other inconsistency between this paragraph 6 and any other provision of this agreement or any other Transaction Document (other than sub-paragraphs 2.1 and 2.2), this paragraph 6 shall prevail.
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. 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. 14.2.1 Subject to the terms and limitations of this Agreement, the Buyer shall make any and all Claims relating to any Breach by the Majority Sellers of any of the Majority Sellers’ Warranties (“Warranty Claim”) under the Insurance Policy, and the Buyer shall have no recourse or otherwise any right to make any such Warranty Claims against the Majority Sellers, except (i) in the event of a Warranty Claim due to a Breach of the Warranties set out in clause 3 (Majority Sellers’ capacity), clause 4.3 (Shares equal total nominal share capital) and/or clause 4.4 (title) of the Majority Sellers’ Warranties in which case the Majority Sellers undertake to indemnify the Buyer by payment of damages to the Buyer in accordance with the general principles of Danish Law on a pro rata basis in accordance with the Allocation Principles without applying the limitations set out in clauses 14.4.1(a) (De Minimis Threshold) and 14.4.1(b) (Basket) in this Agreement up to an amount corresponding to the retention under the Insurance Policy; or (ii) if a Warranty Claim is the consequence of fraud or wilful misconduct by one or more of the Majority Sellers at or prior to Closing, in which case the Buyer or the insurer (as they may decide) shall in accordance with the terms of the Insurance Policy be entitled to bring a Warranty Claim for such Breach directly against such Majority Seller(s) only, in which case such Majority Seller(s), on a pro rata basis in accordance with the Allocation Principles, shall indemnify the Buyer in accordance with the terms and conditions of this Agreement.
14.2.2 For the avoidance of doubt, except as explicitly set out in this clause 14.2, the Buyer shall have no claim or recourse against the Majority Sellers for any Warranty Claim that may be excluded from coverage under the Insurance Policy, including if such exclusion is caused by the Bring Down of Disclosures. Any liability of the Majority Sellers pursuant to this clause 14.2 shall be subject to the limitations set out in this clause 14.
14.2.3 The Buyer undertakes to ensure that the Insurance Policy provides that any insurance provider and any other parties deriving rights under the Insurance Policy shall not raise any Warranty Claim against the Majority Sellers in respect of or as a result of payments made under the Insurance Policy except in the event of event of fraud or wilful misconduct by one or more of the Majority Sellers in which case a Warranty Claim can be raised against such Majority Se...
W&I Insurance. In the period between the date of this Agreement and Closing:
W&I Insurance. Policy 16.
W&I Insurance. Costs The W&I Insurance Costs shall be for the account of the Investor and the Investor shall be solely responsible for the payment of the W&I Insurance Costs. 17 Confidentiality 17.1 Announcements 17.
1.1 Save for the Announcement and subject to Clause 17.1.2, for 12 months following the date of this Agreement, no announcement, communication or circular in connection with the existence or the subject matter of this Agreement shall be made or issued by or on behalf of any member of the Seller’s Group or any member of the Investor’s Group or the Investor’s Affiliates or any XxxX Group Company without the prior written approval of the Seller and the Investor.
W&I Insurance. 12.4.1 The Purchaser has taken out a warranty & indemnity insurance policy ("W&I Insurance Policy") with [***] ("W&I Insurer"). The costs of the W&I Insurance Policy shall be shared between the Purchaser and the Sellers at equal parts, except for the costs for a “knowledge scrape” offered by the W&I which costs shall solely borne by the Sellers. DM_DE 16571412-54.121932.0011
12.4.2 The Parties acknowledge that a Seller is liable in accordance with applicable statutory law in case such Seller or one of the persons attributable to the Seller pursuant to Section 9.4 and 9.5 commits in relation to the Purchaser wilful deceit (arglistige Täuschung), fraud (Betrug) or intentional harm (vorsätzliche Schädigung).
12.4.3 The Purchaser has provided the Sellers with a letter from the W&I Insurer on the Signing Date in which the W&I Insurer assures the Sellers that it will not assert any recourse against the Sellers pursuant to any applicable laws, in particular pursuant to any applicable insurance contract act, in the event of an insurance claim by the Purchaser against the W&I Insurer, unless in case of wilful deceit (arglistige Täuschung), fraud (Betrug) or intentional behaviour (Vorsatz) by a Seller or one of the persons attributable to the Seller pursuant to Section 9.4 and 9.5.
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.
