SUCH TAX DETRIMENT SHALL BE TAKEN INTO ACCOUNT (BUT NOT
IN EXCESS OF ANY SUCH TAX BENEFIT) AT SUCH TIME OR TIMES AS AND TO THE EXTENT
THAT THE INDEMNIFIED PARTY ACTUALLY SUFFERS SUCH TAX DETRIMENT THROUGH AN ACTUAL
PAYMENT OF TAX OR REDUCTION IN THE AMOUNT RECEIVED AS TAX REFUND, IN ALL EVENTS
COMPUTED ON THE SAME BASIS AS THE TAX BENEFIT.
FOR THE PURPOSES OF THIS
AGREEMENT, ANY REALIZED TAX BENEFIT SHALL BE TREATED AS THOUGH IT WERE A
REDUCTION IN THE AMOUNT OF THE INITIAL INDEMNITY CLAIM, AND THE LIABILITIES OF
THE PARTIES SHALL BE REDETERMINED AS THOUGH BOTH OCCURRED AT OR PRIOR TO THE
TIME OF THE INDEMNITY PAYMENT.
FOR PURPOSES OF THIS SECTION 6.05, A "TAX
BENEFIT" MEANS AN AMOUNT BY WHICH THE TAX LIABILITY OF THE INDEMNIFIED PARTY IS
REDUCED (INCLUDING, WITHOUT LIMITATION, BY DEDUCTION, REDUCTION OF INCOME BY
VIRTUE OF INCREASED TAX BASIS OR OTHERWISE, RECEIPT OF REFUND, CREDIT OR
OTHERWISE) PLUS ANY RELATED INTEREST RECEIVED FROM THE RELEVANT TAXING
AUTHORITY.
WHERE A PARTY HAS OTHER LOSSES, DEDUCTIONS, CREDITS OR ITEMS
AVAILABLE TO IT, THE TAX BENEFIT FROM ANY LOSSES, DEDUCTIONS, CREDITS OR ITEMS
RELATING TO THE INDEMNITY CLAIM SHALL BE DEEMED TO BE REALIZED PROPORTIONATELY
WITH ANY OTHER LOSSES, DEDUCTIONS, CREDITS OR ITEMS.
IN THE EVENT THAT THERE
SHOULD BE A DETERMINATION DISALLOWING THE TAX BENEFIT, THE INDEMNIFYING PARTY
SHALL BE LIABLE TO REFUND TO THE INDEMNIFIED PARTY THE AMOUNT OF ANY RELATED
REDUCTION PREVIOUSLY ALLOWED OR PAYMENTS PREVIOUSLY MADE TO THE INDEMNIFYING
PARTY PURSUANT TO THIS SECTION 6.05.
THE AMOUNT OF THE REFUNDED REDUCTION OR
PAYMENT SHALL BE DEEMED A PAYMENT UNDER THIS SECTION 6.05 AND THUS SHALL BE PAID
SUBJECT TO ANY APPLICABLE REDUCTIONS UNDER THIS SECTION 6.05.
SECTION 6.06
PURCHASER, ON THE ONE HAND, AND ARCH PARENT AND
SELLER, ON THE OTHER HAND, EACH HEREBY ACKNOWLEDGES AND AGREES THAT (EXCEPT IN
THE CASE OF FRAUD, IN WHICH CASE
36
EACH SUCH PERSON RESERVES ANY AND ALL RIGHTS AND REMEDIES AVAILABLE TO IT) ITS
SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL CLAIMS RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY (BUT,
FOR THE AVOIDANCE OF DOUBT, NOT INCLUDING TAX LOSSES, WHICH WILL BE GOVERNED
EXCLUSIVELY BY THE PROVISIONS SET FORTH IN ARTICLE V) SHALL BE PURSUANT TO THE
INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE VI, EXCEPT THAT THE PARTIES
SHALL NOT BE LIMITED TO THE REMEDIES PROVIDED IN THIS ARTICLE VI WITH RESPECT TO
ANY DISPUTES PURSUANT TO THE REINSURANCE AGREEMENTS OR ANY OTHER REINSURANCE
ARRANGEMENTS BETWEEN AIIHC OR ANY SUBSIDIARY, ON THE ONE HAND, AND SELLER OR ANY
OF ITS AFFILIATES, ON THE OTHER HAND.
IN FURTHERANCE OF THE FOREGOING,
PURCHASER AND SELLER EACH HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE
AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, ARISING UNDER OR BASED
UPON ANY LAW (INCLUDING, WITHOUT LIMITATION, ANY SUCH RIGHTS,