W&I Insurance Policy. The parties acknowledge that the Purchaser has entered into the W&I Insurance Policy in order to obtain further protection in the event of a breach of the Insured Warranties. The parties thus agree that with regard to the Seller Warranties:
(a) the Seller shall only be directly liable towards the Purchaser with regard to the Special Indemnities;
(b) other than the residual liability provided under Clause 8.2 below, with regard to the Insured Warranties, the Seller shall not have any liability towards the Purchaser, or the Purchaser be entitled to any actions against the Seller, in each case in respect of any Claim, irrespective of whether a Loss would be covered by the W&I Insurance Policy (and, if executed, the Environment Insurance Policy), except in case such Claim (i) is based on fraud (dolo), or gross negligence (colpa grave) on behalf of the Seller or any member of the Seller’s Group and their respective Related Parties; and
(c) except as otherwise provided under this Agreement (including Clause 7.1 above), the Purchaser’s sole recourse for any breach by the Seller of the Insured Warranties shall be against the W&I Insurance Policy (and/or, if executed, the Environment Insurance Policy) in accordance with its terms, whether or not the W&I Insurance Policy (and/or, if executed, the Environment Insurance Policy) is actually effected by the Purchaser or remain in existence. Any failure by the Purchaser to effect the W&I Insurance Policy (and/or, if executed, the Environment Insurance Policy) or to maintain any of them, or any waiver or termination of that policy(ies) at any time, shall not operate to increase the liability of the Seller.
W&I Insurance Policy. 6.1 The Purchaser undertakes to the Seller that:
6.1.1 the W&I Insurance Policy is incepted and in force and on risk from the Signature Date;
6.1.2 the W&I Insurance Policy includes:
(a) a provision that the relevant insurer shall have no right of subrogation against the Seller, other than in the event of fraud by the Seller (“Subrogation Waiver”); and
(b) provisions to allow the Seller to enforce the Subrogation Waiver under Third Parties Act (“Third Party Rights Provisions”); and
6.1.3 no amendments or variations shall be made to the Subrogation Waiver or the Third Party Rights Provisions which have the effect of increasing the liability of the Seller under the W&I Insurance Policy, without the prior written consent of the Seller.
6.2 Subject to the provisions of clause 6.3, the Purchaser shall have no recourse against the Seller and shall only have recourse against and shall only be entitled to claim against the insurers in terms of the W&I Insurance Policy in respect of any Relevant Claim. For the avoidance of doubt, in respect of any Relevant Claim:
6.2.1 if, for any reason whatsoever (other than fraud on the part of the Seller), including, without limitation: (i) the W&I Insurance Policy being cancelled or terminated; (ii) the insurer repudiating any Relevant Claim instigated by the Purchaser; (iii) the W&I Insurance Policy lapsing or being repudiated; and/or (iv) the insurer failing to pay any claim under the W&I Insurance Policy or any portion thereof, the Purchaser will nevertheless still not have any claim or recourse against the Seller in respect of any Relevant Claim; and
6.2.2 the maximum aggregate liability of the Seller under or in respect of all or any Warranty Claims and all or any Tax Claims for which the Purchaser may claim in terms of the W&I Insurance Policy, including all costs, charges, fees and expenses incurred by the Purchaser or any other member of the Purchaser’s Group in relation to the same, shall be limited to, and shall not exceed in any way whatsoever, the sum of USD 1.00 (other than for fraud on the part of the Seller in which case, the relevant insurer shall have rights of recovery to the Seller).
6.3 If subject to clause 12.6 and clause 6.5, the Seller breaches a Warranty, Tax Warranty or any aspect of the Tax Covenant which is excluded from the ambit of the W&I Insurance Policy, as specifically stated in schedule 3, part 2 or that has been excluded as a result of the General Exclusions specifically stated in schedule 3,...
W&I Insurance Policy. The Purchaser confirms that it has entered into the W&I Insurance Policy prior to or as of signing of this Agreement which is the Purchaser's sole recourse in the event of any breach or inaccuracy of any Warranty or under the Tax Indemnity. The Purchaser further confirms that the W&I Insurance Policy expressly excludes any rights for the provider(s) of the W&I Insurance Policy to exercise any rights of subrogation against the Seller or any of its Affiliates and Representatives, except in case of fraud or fraudulent misrepresentation.
W&I Insurance Policy. 5.6.1. The Purchaser confirms that it has, prior to the date of this Agreement, duly executed the W&I Insurance Policy (as defined below), and that the W&I Insurance Policy is therefore in full force and effect as of signing of this Agreement (but subject to Completion). A copy of the executed W&I Insurance Policy, and of a cost confirmation of the W&I Insurance Premium, have been attached to this Agreement as Schedule 5.6. The Purchaser will provide the Sellers with the W&I Insurance Premium cost confirmation ultimately two (2) Business Days before the Completion Date.
5.6.2. The W&I Insurance Premium shall be borne in equal parts by the Purchaser on the one hand and by the Sellers on the other hand as set out in Clause 2.4 up to an aggregate amount of EUR 400,000 (four hundred thousand euro) (exclusive of any Tax) and any part of the W&I Insurance Premium in excess of EUR 400,000 (four hundred thousand euro) will be borne solely by the Purchaser.
5.6.3. The W&I Insurance Premium shall be paid to the insurer and/or the relevant broker in accordance with the terms of the Notary Letter. For the avoidance of doubt, the amount of the invoice relating to the Sellers' share of the W&I Insurance Premium as determined in accordance with Clause 5.6.2 shall be deducted from the Purchase Price in accordance with Clause 2.4.1.c.
W&I Insurance Policy. (a) The parties agree to procure prior to Completion, a W&I Insurance Policy to a level and on terms satisfactory to the Purchaser, including on terms set out in clause 9.2 in the name of the Purchaser which indemnifies the Purchaser with effect from the date of Completion against any Loss in respect of any breach of any of the Vendor Warranties given under this Agreement.
(b) The W&I Insurance Policy is to be maintained until at least 30 days after the expiration of the dates specified in clause 8.4.
(c) The Parties agree that the Purchaser shall pay the cost of the W&I Insurance Policy and that the Vendors will allow the Purchaser to reduce the Purchase Price by $80,000 in respect of the cost of the W&I Insurance Policy.
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W&I Insurance Policy. 2.7.1. The Purchaser confirms that it has, prior to the Signing Date, duly executed the W&I Insurance Policy (as defined below), and that the W&I Insurance Policy is therefore in full force and effect. A copy of the executed W&I Insurance Policy, and of a cost confirmation of the W&I Insurance Premium, have been attached to this Agreement as Schedule 2.7.1. The Purchaser will provide the Sellers with the W&I Insurance Premium invoice ultimately two (2) Business Days after receipt thereof by the Purchaser.
2.7.2. The W&I Insurance Premium shall be paid to the W&I Insurance Company in the manner and to the accounts as set forth in the Notary Letter. For the avoidance of doubt, the amount of the invoice relating to the W&I Insurance Premium shall be deducted from the Purchase Price in accordance with Clause 2.4.1(iv).
W&I Insurance Policy. Notwithstanding any provision to the contrary in this Agreement:
17.1.1 the parties acknowledge that the Purchaser has the benefit of the W&I Insurance Policy which provides, conditional on Closing, insurance cover in respect of certain Claims and Tax Claims;
17.1.2 in respect of any Claims or Tax Claims above the limitation of liability set out in Clause 15.4, the Purchaser’s right of recovery shall be to claim against the W&I Insurance Policy in respect of a Claim or Tax Claim and the Seller shall not have any liability in respect of the same;
17.1.3 the Purchaser warrants that the W&I Insurance Policy contains a waiver by the W&I Insurer of all rights of subrogation against the Seller, the members of the Seller’s Group and their respective directors, officers, employees and advisers in relation to any Claim or Tax Claim, except if and to the extent that the Claim or Tax Claim arises or is increased as a result of the fraud of the Seller, any member of the Seller’s Group or its directors, officers or employees;
W&I Insurance Policy. The Purchaser shall within twenty (20) Business Days of the Completion Date pay the premium due under the W&I Insurance Policy to the W&I Insurance Provider.
W&I Insurance Policy. The Seller shall use commercially reasonable efforts to cooperate with the Buyer in connection with any claim made by the Buyer or any of its Affiliates under the W&I Insurance Policy, to the extent that the Seller’s cooperation would assist the Buyer or any of its Affiliates in pursuing and obtaining the maximum recovery available in respect of such claim. So as to not affect the insurable interest of the Buyer and/or its Affiliates under the W&I Insurance Policy, the parties agree that the existence of the W&I Insurance Policy shall not limit the liability of the Buyer under this Agreement.
