Common use of W&I Insurance Clause in Contracts

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. 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 14.1 The parties acknowledge that the Buyer or any other matter or thing but subject of its Affiliates may, at their sole discretion, elect to Clause 11.13obtain a W&I Policy in respect of the Transaction, in which case the Buyer undertakes to each Seller that: (a) such W&I Policy shall include a binding and irrevocable third party stipulation for no consideration for the Purchaser agrees benefit of and enforceable by each Seller 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 insurer(s) under the W&I Insurance Policy against are not entitled to subrogate against, or otherwise claim from, such Seller under, or in connection with, this Agreement, except in the W&I Insurer, but only on the basis that the Sellers will have no liability whatsoever for any case of fraud by such claimSeller; (b) the Purchaser's sole recourse terms of such W&I Policy related to subrogation or claims for contribution shall not be amended, waived or varied without the prior written consent of the Institutional Seller and the Management Seller Representatives; (c) the insurance premium payable in respect of all and any Warranty Claims (other than a Fundamental Warranty Claim) and any and all Tax Covenant Claims shall, except to connection with such W&I Policy is paid in accordance with the extent of $1.00 in aggregate and subject to the preceding paragraph, be under the W&I Insurance Policyterms thereof; and (cd) neither the Buyer nor any inability member of the Purchaser Buyer Group shall terminate, cancel or take any other action or omit to pursue do anything which would make such W&I Policy void or obtain voidable, provided that, for the avoidance of doubt, the limitations on the liabilities of the Sellers set out in the Transaction Documents (including, without limitation, the €1.00 cap on each Warrantor’s liability under the Management Warranty Deed) shall apply in any remedy event irrespective of: (i) whether or not the Buyer or its Affiliate obtains a W&I Policy in respect of the Transaction; (ii) any Warranty Claim (other than a Fundamental Warranty Claim) or Tax Covenant Claim under matter regarding 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 status of any person)such W&I Policy (including, creditworthiness but not limited to, the vitiation, termination or for expiry of any other reason, shall not affect such W&I Policy or in any way increase the liability insolvency of the Sellers under this agreement and the Sellers shall bear no responsibility for such exceptions underwriters); or exclusions (iii) any subsequent non-payment under any and all circumstances. 6.2 The Purchaser agrees that it will comply with all terms of the such W&I Insurance Policy. 6.3 14.2 The Purchaser Buyer acknowledges that: (a) the liability of the underwriters that there shall not be any excess, premium or other amount payable by any Seller under or in connection with 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. 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 The Purchaser acknowledges and agrees that it will the monetary limitations set out in paragraph 3 (Maximum limit for all Claims) of this Schedule 3 (Limitations on Liability) shall apply in all circumstances whether or 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 is obtained and notwithstanding: (i) 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 non-payment under the W&I Insurance Policy; and (cii) any inability vitiation or expiry or termination or defect 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 (iii) the liability insolvency of the Sellers under this agreement and the Sellers shall bear no responsibility for such exceptions W&I Insurer or exclusions under any and all circumstances. 6.2 The Purchaser agrees that it will comply with all terms underwriter of the W&I Insurance Policy. 6.3 (b) The Purchaser acknowledges that: (a) agrees that it shall bear any excess, retention or deductible amount that may be retained or deducted under the liability terms of the underwriters under the W&I Insurance Policy shall be and, subject to the monetary limitations and exclusions expressly set out therein and the Sellers shall bear no responsibility in paragraph 3 (Maximum limit for such limitations and exclusions under any and all circumstances; and Claims) of this Schedule 3 (b) the Sellers have entered into this agreement in reliance of the fact that Limitations on Liability), neither the Purchaser will obtain or any other person shall be entitled to make any claims against the Seller regarding any such excess, retention or deductible amount under the W&I Insurance Policy. 6.4 If there is (c) The Purchaser agrees that the Purchaser’s sole right of recovery (if any) in respect of any conflict Claim for breach of the Warranties or other inconsistency between this paragraph 6 under the Tax Covenant shall be under the W&I Insurance Policy, and that the Purchaser shall not be entitled to make any other provision such Claim against the Seller. (d) The Purchaser warrants that the W&I Insurance Policy contains an express waiver by the W&I Insurer of this agreement all rights of subrogation against the Seller and its directors and officers in relation to any Claim under the Warranties or any other Transaction Document (other than sub-paragraphs 2.1 and 2.2)under the Tax Covenant, this paragraph 6 shall prevailexcept to the extent that such Claim arose in whole or part out of the Seller’s fraud or fraudulent misrepresentation.

W&I Insurance. 6.1 Notwithstanding As of the date of this Agreement, the Purchaser shall have procured the W&I insurance policy (the "W&I Insurance Policy") from the W&I Insurance Company on terms disclosed to the Seller, which shall contain a waiver of the W&I Insurance Company of its rights of subrogation, claims in contribution and rights acquired by assignment against the Seller (except in case of fraud by the Seller). For the avoidance of doubt, the Seller shall have no obligations towards any premiums or payments to be made in connection with the obtainment and maintenance of the W&I Insurance Policy. In the event of any conflict or other inconsistency between the terms of this Section 6.5 and any other provision provisions of this agreement (other than sub-paragraphs 2.1 and 2.2 of this schedule), any other Transaction Document Agreement or any other matter contract, agreement or thing but subject arrangement entered into by either the Purchaser or the Seller in connection with the Transaction (including the W&I Insurance Policy, as between the Parties), the terms of this Section 6.5 shall prevail. Notwithstanding anything to Clause 11.13the contrary in this Agreement, the Purchaser: (a) hereby warrants to the Seller that the executed copy of the W&I Insurance Policy delivered by the Purchaser to the Seller on the date of this Agreement is true, complete and up-to-date; (b) acknowledges and agrees that, in reliance upon the W&I Insurance Policy, neither the Purchaser nor any other Indemnified Purchaser Party shall be entitled to make, and the Purchaser waives on behalf of itself and all the other Indemnified Purchaser Parties any right such Person may have to make, any claim against the Seller arising out of, and the Seller shall not be liable for, any Losses suffered or incurred by any Indemnified Purchaser Party in connection with any claims of any inaccuracy in or breach of any of the warranties made by the Seller in Section 3.1 or Section 3.2 in this Agreement, except in case of fraud by the Seller; (c) acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement or any other contract, agreement or arrangement entered into by either the Seller or the Purchaser in connection with the Transaction (including the W&I Insurance Policy), the Seller provides Sections 3.1 and 3.2 in this Agreement and (to the extent relating to any inaccuracy in or breach of any warranty set forth in Section 3.1 or Section 3.2) Section 6.1(b)(i) hereof to the Purchaser solely for purposes of satisfying the condition set forth in Section 5.2(c) in this Agreement and to enable the Purchaser to make claims against the W&I Insurance Company under the W&I Insurance Policy for any inaccuracy in or breach of any warranty set forth in Sections 3.1 and 3.2 hereof, and any and all claims for any inaccuracy in or breach of any warranty set forth in Section 3.1 or Section 3.2 by any Indemnified Purchaser Party shall be made exclusively against the W&I Insurance Company under the W&I Insurance Policy and, as such, the Indemnified Purchaser Parties shall not make any claim against the Seller as a result of any Loss, except in case of fraud by the Seller; (d) acknowledges that the Seller has entered into this Agreement and will complete the Transaction in reliance on the Purchaser having obtained the W&I Insurance Policy and the provisions of this Section 6.5 and Section 6.6; (e) agrees that it will not be entitled to make, and will not make, and irrevocably waives and releases any right it may have to make make, any Warranty Claim claims for any inaccuracy in or Tax Covenant Claim breach of any of the warranties made by the Seller in Section 3.1 or Section 3.2 in this Agreement against the Sellers or any Seller, except in case 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 fraud 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 PolicySeller; and (cf) any inability agrees that the provisions of this Section 6.5 will still apply notwithstanding that the Purchaser is or may be unable 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 personPerson), 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 circumstancesotherwise. 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. 6.1 Notwithstanding any other provision of to the contrary in 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 11.13Agreement: (a) the Purchaser Buyer must obtain and maintain the W&I Insurance Policy; (b) the Buyer acknowledges that (i) the Sellers have entered into this Agreement and will complete this Agreement in reliance on the Buyer having obtained the W&I Insurance Policy and (ii) there is no excess or any other amount payable by any Seller or any of its Related Entities under the W&I Insurance Policy; (c) the Buyer agrees that, subject to clause 6.1(e), no Warrantor has or will at any time have any liability to the Buyer or any other person in respect of any claim, demand, cause of action or proceeding for breach of any of the Business Warranties (which, for the avoidance of doubt, includes all claims, demands, causes of action or proceedings against a Warrantor the basis of which is that a Business Warranty is, or is alleged to be, untrue, inaccurate or misleading) or under the Tax Indemnity, and the Buyer’s sole and exclusive recourse in respect of any such claim, demand, cause of action or proceeding is against the W&I Insurance Policy; (d) the Buyer agrees that it will not be entitled to make, will not make, and irrevocably hereby waives any right it may have to make make, any Warranty Claim claim, demand, cause of action or Tax Covenant Claim proceeding against the Sellers or any of them the Warrantors arising out of a breach of any of the Business Warranties or under the Tax Indemnity, except to the extent of $1.00 in aggregate and then only if and to the extent extent: (i) required to permit a claim, demand, cause of action or facilitate a claim by proceeding against the Purchaser W&I Insurers under the W&I Insurance Policy against the W&I Insurer, but only on the basis that no Warrantor, nor any of its Related Entities or its or their Representatives, will have any liability whatsoever for such claim, demand, cause of action or proceeding; (ii) such claim, demand, cause of action or proceeding arises out of the Sellers fraud of that Warrantor; or (iii) the amount of a Share Capital Warranty Claim would result in the aggregate of all such claims, demands, causes of action and proceedings arising out of a breach of any of the Business Warranties or under the Tax Indemnity exceeding the Cap Amount; provided that, without limiting clause 10.09 or 10.10, the Warrantors shall only be liable for any amount payable pursuant to a Share Capital Warranty Claim that is in excess of the Cap Amount and the Buyer shall seek and obtain recovery under the W&I Insurance Policy, including exhausting the Cap Amount, prior to seeking to recover any amount payable pursuant to such Share Capital Warranty Claim from the Warrantors; (e) the Buyer covenants with each Warrantor that it will: (i) not agree to any amendment, variation or waiver of the W&I Insurance Policy (or do anything which has a similar effect) without the prior written consent (not to be unreasonably withheld or delayed unless such amendment, variation or waiver would reasonably be expected to adversely affect that Warrantor in which case the Warrantor may give or withhold consent in its sole discretion) of that Warrantor; (ii) not novate, or otherwise assign its rights under, the W&I Insurance Policy (or do anything which has a similar effect); (iii) not vitiate the W&I Insurance Policy or do anything which causes any right under the W&I Insurance Policy not to have force and effect (or do anything which has a similar effect); (iv) comply with the terms of any deliverables set out in the W&I Insurance Policy; (v) include in the terms of the W&I Insurance Policy express waivers of the insurer’s rights of subrogation, contribution and rights acquired by assignment against each of the Warrantors, other than claims, demands, causes of action or proceedings that arise out of the fraud of that Warrantor; and (vi) include in the terms of the W&I Insurance Policy an acknowledgement from the W&I Insurers that each Warrantor is entitled to enforce directly the waivers referred to in clause 6.1(f)(v) above and that the Buyer contracts in its own right and as agent for each Warrantor in respect of those waivers; (f) the Buyer acknowledges that the provisions of this clause 6 have full force and effect irrespective of: (i) whether the Buyer complies with any of its obligations under this Agreement; or (ii) the terms or validity of the W&I Insurance Policy; (g) the Buyer covenants with each Warrantor that it will ensure that: (i) the W&I Insurers will have no liability claim, demand, cause of action or proceeding whatsoever under any rights of subrogation against any Warrantor other than in circumstances where a breach of a Business Warranty or a claim under the Tax Indemnity arises against that Warrantor as provided for any such claimin clause 6.1(d)(i) and 6.1(d)(ii); (bii) the Purchaser's sole recourse W&I Insurers do not bring any claim, demand, cause of action or proceeding against that Warrantor or a Related Entity or Representative of that Warrantor by way of subrogation, claim, demand, cause of action or proceeding for contribution or otherwise, except if such claim arises out of the fraud of that Warrantor (and then only to the extent and in respect of all rights of recovery relating directly to the relevant fraud); and (iii) in the case of any assignment of rights by the Buyer to the W&I Insurers, the assignment will include a provision stating that the W&I Insurers will only be entitled to exercise the assigned rights against a Warrantor in the circumstances and any Warranty Claims (other than a Fundamental Warranty Claim) and any and all Tax Covenant Claims shall, except to the extent permitted by clause 6.1(h)(ii); (h) the Buyer must indemnify each Warrantor against all Losses which that Warrantor may incur as a result of $1.00 any claim, demand, cause of action or proceeding made by Buyer in aggregate and subject respect of a breach of a Business Warranty or a Claim under the Tax Indemnity other than as permitted in this clause 6; (i) the Buyer will enforce any term of the W&I Insurance Policy under which the insurer waives its right to take subrogated action against the preceding paragraphWarrantors or to claim in contribution from the Warrantors, be under upon the terms set out in the W&I Insurance Policy; and (cj) any inability for the avoidance of doubt, none of the Purchaser indemnities or other obligations in this Agreement shall give rise to pursue or obtain any remedy in respect a liability of any Warranty Claim (other than a Fundamental Warranty Claim) or Tax Covenant Claim the Warrantors to indemnify the Buyer if the insurer is responsible for such liability 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.