Limitation on Right to Terminate; Effect of Termination. (a) A party shall not be allowed to exercise any right of termination pursuant to Section 9.1 if the event giving rise to the termination right shall be due to the willful failure of such party seeking to terminate this Agreement to perform or observe in any material respect any of the covenants or agreements hereunder to be performed or observed by such party. (b) If this Agreement is terminated as permitted under Section 9.1 and except as provided in this Section 9.2(b), such termination shall be without liability of or to any party to this Agreement, or any shareholder or Representative of such party; provided, however, that if such termination shall result from the willful failure of any party to fulfill a condition to the performance of any other party or to perform a covenant of this Agreement or from a material and willful breach by any party to this Agreement (it being understood that the failure to cure a breach shall not, by itself, be a willful breach of this Agreement), then such party shall (subject to the last sentence of this Section 9.2(b)) be fully liable for any and all damages sustained or incurred by the other party; provided, however, if (i) all of Buyer’s and Seller’s conditions precedent to Closing have been satisfied (except with respect to the representations and warranties set forth in Section 4.4), (ii) this Agreement is terminated by Seller pursuant to Section 9.1(d) due to a breach of Buyer’s covenants in Section 6.9 or Section 6.10 of this Agreement, or Section 9.1(e) or Section 9.1(f) of this Agreement and (iii) Buyer is in violation of its representation in Section 4.4 as measured on such date, then Buyer shall pay to Seller an amount (the “Buyer Termination Fee”) equal to $73,125,000.00, by wire transfer of same day federal funds to the account specified by Seller, within two (2) business days after any such termination. Notwithstanding anything to the contrary in this Agreement, if the Buyer Termination Fee is required to be paid as a result of a termination of this Agreement, Seller’s right to receive the Buyer Termination Fee pursuant to this Section 9.2(b) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Seller and its Affiliates, as applicable, against Buyer, The Laclede Group, Inc., and their respective Affiliates, and upon payment of the Buyer Termination Fee in accordance with this Section 9.2(b), none of Buyer, The Laclede Group, Inc. and any of their respective stockholders, directors, officers, agents or other representatives, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. If prior to Closing either party to this Agreement resorts to legal proceedings to enforce this Agreement, the prevailing party in such proceedings shall be entitled to recover all costs incurred by such party including reasonable attorney’s fees, in addition to any other relief to which such party may be entitled; provided, however, and notwithstanding anything to the contrary in this Section 9.2(b), in no event shall either party be entitled to receive any punitive, exemplary, special, remote, speculative, indirect or consequential damages (including any damages on account of lost profits or opportunities) in connection with any termination of this Agreement.
Appears in 4 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Laclede Group Inc), Purchase and Sale Agreement (Southern Union Co)
Limitation on Right to Terminate; Effect of Termination. (a) A party shall not be allowed to exercise any right of termination pursuant to Section 9.1 if the event giving rise to the termination right shall be due to the willful failure of such party seeking to terminate this Agreement to perform or observe in any material respect any of the covenants covenants, or agreements hereunder hereof to be performed or observed by such party.
(b) If this Agreement is terminated as permitted under Section 9.1 and except as provided in this Section 9.2(b)hereof, such termination shall be without liability of or to any party to this Agreement, or any shareholder shareholder, director, officer, employee, agent, servant, consultant or Representative representative of such party; provided, however, that if such termination shall result from the willful failure of any party to fulfill a condition to the performance of any other party or to perform a covenant of this Agreement or from a material and willful breach by any party to this Agreement (it being understood that the failure to cure a breach shall not, by itself, be a willful breach of this Agreement), then such party shall (subject to the limitation set forth in the last sentence of this Section 9.2(b)) be fully liable for any and all damages sustained or incurred by the other party; provided, however, if (i) all of Buyer’s and Seller’s conditions precedent to Closing have been satisfied (except with respect to the representations and warranties set forth in Section 4.4), (ii) this Agreement is terminated by Seller pursuant to Section 9.1(d) due to a breach of Buyer’s covenants in Section 6.9 or Section 6.10 of this Agreement, or Section 9.1(e) or Section 9.1(f) of this Agreement and (iii) Buyer is in violation of its representation in Section 4.4 as measured on such date, then Buyer shall pay to Seller an amount (the “Buyer Termination Fee”) equal to $73,125,000.00, by wire transfer of same day federal funds to the account specified by Seller, within two (2) business days after any such termination. Notwithstanding anything to the contrary in this Agreement, if the Buyer Termination Fee is required to be paid as a result of a termination of this Agreement, Seller’s right to receive the Buyer Termination Fee pursuant to this Section 9.2(b) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Seller and its Affiliates, as applicable, against Buyer, The Laclede Group, Inc., and their respective Affiliates, and upon payment of the Buyer Termination Fee in accordance with this Section 9.2(b), none of Buyer, The Laclede Group, Inc. and any of their respective stockholders, directors, officers, agents or other representatives, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. If prior to Closing either party to this Agreement resorts to legal proceedings to enforce this Agreement, the prevailing party in such proceedings shall be entitled to recover all costs incurred by such party including reasonable attorney’s 's fees, in addition to any other relief to which such party may be entitled; provided, however, and notwithstanding anything to the contrary in this Section 9.2(b)Agreement, in no event shall either party be entitled to receive any punitive, exemplary, special, remote, speculative, indirect or consequential damages.
(c) Notwithstanding anything in Section 9.2(b) to the contrary, if Seller terminates this Agreement pursuant to Section 9.1(e) or as the result of any default or breach by Purchaser of Purchaser's obligations hereunder, then Seller shall be entitled to receive an amount equal to $10,000,000 as liquidated damages, and as Seller's sole remedy in connection therewith, free of any claims by Purchaser or any other Person with respect thereto (the parties hereby acknowledging that the extent of damages to Seller occasioned by such breach or default by Purchaser would be impossible or extremely difficult 27 28 to ascertain and that the amount of such liquidated damages is a fair and reasonable estimate of such damages under the circumstances).
(including any d) Upon the election by Seller to terminate this Agreement pursuant to Section 9.1(e) hereof because of Purchaser being in default or breach of its obligations under this Agreement (collectively, the "Breach Event"), Seller shall give notice of the Breach Event and its decision to terminate this Agreement to Purchaser. If Purchaser fails to cure such Breach Event within one Business Day after such notice is received by Purchaser, then Seller shall have the right to give notice to Purchaser of the failure to cure the Breach Event and demand payment from Purchaser of the $10 million liquidated damages. If Purchaser fails to pay to Seller the $10 million liquidated damages, in cash or by wire transfer to an account designated by Seller within one Business Day after the notice demanding payment of the liquidated damages is received by Purchaser, then Seller shall have the right to draw on account the Letter of lost profits Credit in the full amount of $10 million for the full payment of the $10 million liquidated damages. If it is finally determined (which determination is no longer subject to further review or opportunitiesappeal) in connection accordance with any termination the dispute resolution mechanisms permitted by this Agreement that Seller was not entitled to receive liquidated damages, then Seller shall, within 10 business days after such final determination, remit such liquidated damages, together with interest at the annual rate equal to the prime rate of this AgreementBank of America plus 2% from the date of payment to Seller until the date of payment to Purchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Ocean Energy Inc /Tx/)
Limitation on Right to Terminate; Effect of Termination. (a) A party shall not be allowed to exercise any right of termination pursuant to Section 9.1 if the event giving rise to the termination right shall be due to the willful failure of such party seeking to terminate this Agreement to perform or observe in any material respect any of the covenants covenants, or agreements hereunder hereof to be performed or observed by such party.
(b) If this Agreement is terminated as permitted under Section 9.1 and except as provided in this Section 9.2(b)hereof, such termination shall be without liability of or to any party to this Agreement, or any shareholder shareholder, director, officer, employee, agent, servant, consultant or Representative representative of such party; provided, however, that if such termination shall result from the willful failure of any party to fulfill a condition to the performance of any other party or to perform a covenant of this Agreement or from a material and willful breach by any party to this Agreement (it being understood that the failure to cure a breach shall not, by itself, be a willful breach of this Agreement), then such party shall (subject to the limitation set forth in the last sentence of this Section 9.2(b)) be fully liable for any and all damages sustained or incurred by the other party; provided, however, if (i) all of Buyer’s and Seller’s conditions precedent to Closing have been satisfied (except with respect to the representations and warranties set forth in Section 4.4), (ii) this Agreement is terminated by Seller pursuant to Section 9.1(d) due to a breach of Buyer’s covenants in Section 6.9 or Section 6.10 of this Agreement, or Section 9.1(e) or Section 9.1(f) of this Agreement and (iii) Buyer is in violation of its representation in Section 4.4 as measured on such date, then Buyer shall pay to Seller an amount (the “Buyer Termination Fee”) equal to $73,125,000.00, by wire transfer of same day federal funds to the account specified by Seller, within two (2) business days after any such termination. Notwithstanding anything to the contrary in this Agreement, if the Buyer Termination Fee is required to be paid as a result of a termination of this Agreement, Seller’s right to receive the Buyer Termination Fee pursuant to this Section 9.2(b) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Seller and its Affiliates, as applicable, against Buyer, The Laclede Group, Inc., and their respective Affiliates, and upon payment of the Buyer Termination Fee in accordance with this Section 9.2(b), none of Buyer, The Laclede Group, Inc. and any of their respective stockholders, directors, officers, agents or other representatives, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. If prior to Closing either party to this Agreement resorts to legal proceedings to enforce this Agreement, the prevailing party in such proceedings shall be entitled to recover all costs incurred by such party including reasonable attorney’s 's fees, in addition to any other relief to which such party may be entitled; provided, however, and notwithstanding anything to the contrary in this Section 9.2(b)Agreement, in no event shall either party be entitled to receive any punitive, exemplary, special, remote, speculative, indirect or consequential damages.
(c) Notwithstanding anything in Section 9.2(b) to the contrary, if Seller terminates this Agreement pursuant to Section 9.1(e) or as the result of any default or breach by Purchaser of Purchaser's obligations hereunder, then Seller shall be entitled to receive an amount equal to $10,000,000 as liquidated damages, and as Seller's sole remedy in connection therewith, free of any claims by Purchaser or any other Person with respect thereto (the parties hereby acknowledging that the extent of damages to Seller occasioned by such breach or default by Purchaser would be impossible or extremely difficult to ascertain and that the amount of such liquidated damages is a fair and reasonable estimate of such damages under the circumstances).
(including any d) Upon the election by Seller to terminate this Agreement pursuant to Section 9.1(e) hereof because of Purchaser being in default or breach of its obligations under this Agreement (collectively, the "Breach Event"), Seller shall give notice of the Breach Event and its decision to terminate this Agreement to Purchaser. If Purchaser fails to cure such Breach Event within one Business Day after such notice is received by Purchaser, then Seller shall have the right to give notice to Purchaser of the failure to cure the Breach Event and demand payment from Purchaser of the $10 million liquidated damages. If Purchaser fails to pay to Seller the $10 million liquidated damages, in cash or by wire transfer to an account designated by Seller within one Business Day after the notice demanding payment of the liquidated damages is received by Purchaser, then Seller shall have the right to draw on account the Letter of lost profits Credit in the full amount of $10 million for the full payment of the $10 million liquidated damages. If it is finally determined (which determination is no longer subject to further review or opportunitiesappeal) in connection accordance with any termination the dispute resolution mechanisms permitted by this Agreement that Seller was not entitled to receive liquidated damages, then Seller shall, within 10 business days after such final determination, remit such liquidated damages, together with interest at the annual rate equal to the prime rate of this AgreementBank of America plus 2% from the date of payment to Seller until the date of payment to Purchaser.
Appears in 1 contract
Limitation on Right to Terminate; Effect of Termination. (a) A party shall not be allowed to exercise any right of termination pursuant to Section 9.1 if the event giving rise to the termination right shall be due to the willful failure of such party seeking to terminate this Agreement to perform or observe in any material respect any of the covenants or agreements hereunder to be performed or observed by such party.
(b) If this Agreement is terminated as permitted under Section 9.1 and except as provided in this Section 9.2(b), such termination shall be without liability of or to any party to this Agreement, or any shareholder or Representative of such party; provided, however, that if such termination shall result from the willful failure of any party to fulfill a condition to the performance of any other party or to perform a covenant of this Agreement or from a material and willful breach by any party to this Agreement (it being understood that the failure to cure a breach shall not, by itself, be a willful breach of this Agreement), then such party shall (subject to the last sentence of this Section 9.2(b)) be fully liable for any and all damages sustained or incurred by the other party; provided, however, if (i) all of Buyer’s and Seller’s conditions precedent to Closing have been satisfied (except with respect to the representations and warranties set forth in Section 4.4), (ii) this Agreement is terminated by Seller pursuant to Section 9.1(d) due to a breach of Buyer’s covenants in Section 6.9 or Section 6.10 of this Agreement, or Section 9.1(e) or Section 9.1(f) of this Agreement and (iii) Buyer is in violation of its representation in Section 4.4 as measured on such date, then Buyer shall pay to Seller an amount (the “Buyer Termination Fee”) equal to $73,125,000.00, by wire transfer of same day federal funds to the account specified by Seller, within two (2) business days after any such termination. Notwithstanding anything to the contrary in this Agreement, if the Buyer Termination Fee is required to be paid as a result of a termination of this Agreement, Seller’s right to receive the Buyer Termination Fee pursuant to this Section 9.2(b) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Seller and its Affiliates, as applicable, against Buyer, The Laclede Group, Inc., and their respective Affiliates, and upon payment of the Buyer Termination Fee in accordance with this Section 9.2(b), none of Buyer, The Laclede Group, Inc. and any of their respective stockholders, directors, officers, agents or other representatives, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. If prior to Closing either party to this Agreement resorts to legal proceedings to enforce this Agreement, the prevailing party in such proceedings shall be entitled to recover all costs incurred by such party including reasonable attorney’s fees, in addition to any other relief to which such party may be entitled; provided, however, and notwithstanding anything to the contrary in this Section 9.2(b), in no event shall either party be entitled to receive any punitive, exemplary, special, remote, speculative, indirect or consequential damages (including any damages on account of lost profits or opportunities) in connection with any termination of this Agreement.Section
Appears in 1 contract
Samples: Purchase and Sale Agreement
