Common use of Limitation on Right to Terminate Clause in Contracts

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 hereof to be performed or observed by such party. (b) If this Agreement is terminated as permitted under Section 9.1, 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 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. 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 Agreement, in no event shall either party be entitled to receive any punitive, indirect or consequential damages. (c) If (i) Seller terminates this Agreement pursuant to Section 9.1(d) or (ii) this Agreement is terminated by either party pursuant to Section 9.1(e) or 9.1(f) because the requisite Consent from the Hawaii Public Utilities Commission has not been obtained, or because such Governmental Body has affirmatively indicated that its Consent will not be given, due in whole or in part to concerns about the Buyer's financial, operational or legal qualifications or capabilities, or (iii) this Agreement is terminated by Seller pursuant to Section 9.1(g) , then Seller may present a sight draft under the Letter of Credit, and thereby retain the Deposit as liquidated damages free of any claims by Buyer 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 Buyer would be impossible or extremely difficult to ascertain and that the amount of the Deposit is a fair and reasonable estimate of such damages under the circumstances). If this Agreement is terminated for any reason other than as set forth in the preceding sentence, then Seller shall deliver the Letter of Credit to Buyer, free of any claims by Seller or any other Person with respect thereto.

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 parry seeking to terminate this Agreement to perform or observe in any material respect any of the covenants or agreements hereof to be performed or observed by such party. (b) If this Agreement is terminated as permitted under Section 9.1, 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 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 partyparry. 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 Agreement, in no event shall either party be entitled to receive any punitive, indirect or consequential damages. (c) If (i) Seller terminates this Agreement pursuant to Section 9.1(d), Section 9.1(g) or Section 9.1(h) or (ii) this Agreement is terminated by either party pursuant to Section 9.1(e) or 9.1(f) because the requisite Consent from the Hawaii Public Utilities Commission applicable state regulatory commission has not been obtained, or because such Governmental Body has affirmatively indicated that its Consent will not be given, due in whole or in part to concerns about the Buyer's financial, operational or legal qualifications or capabilities, unless such Governmental Body also has affirmatively indicated that its Consent is being withheld due in part to concerns. about Seller's operation of the Business or (iii) this Agreement is terminated by Seller pursuant to Section 9.1(g) ownership of the Assets, then Seller may present a sight draft under the Letter of Credit, and thereby retain either all of the Deposit (if clause (i) is applicable) or $380,000 (if clause (ii) is applicable), (or, if there is no Letter of Credit or if the Letter of Credit does not permit Seller to present a sight draft in such circumstances, then Buyer shall pay to Seller in cash an amount equal to the Deposit or $380,000, as the case may be, within five (5) business days after the effective date of termination of this Agreement), in either case, as liquidated damages free of any claims by Buyer or any other Person with respect thereto (the parties hereby acknowledging that the extent of damages to Seller occasioned by such breach or default or failure by Buyer would be impossible or extremely difficult to ascertain and that the amount of the Deposit to be paid to Seller is a fair and reasonable estimate of such damages under the circumstances). If this Agreement is terminated for any reason other than as set forth in the preceding sentence, then Seller shall promptly deliver the Letter of Credit to Buyer, free of any claims by Seller or any other Person with respect thereto.

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 hereof to be performed or observed by such party. (b) If this Agreement is terminated as permitted under Section 9.1, 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 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. 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 Agreement, in no event shall either party be entitled to receive any punitive, exemplary, special, remote, speculative, indirect or consequential damagesdamages (including any damages on account of lost profits or opportunities). (c) If (i) Seller terminates this Agreement pursuant to Section 9.1(d) or (ii) this Agreement is terminated by either party pursuant to Section 9.1(e) or 9.1(f) because the requisite Consent from the Hawaii Public Utilities Commission has not been obtained, or because such Governmental Body has affirmatively indicated that its Consent will not be given, due in whole or in part to concerns about the Buyer's financial, operational or legal qualifications or capabilities, or (iii) this Agreement is terminated by Seller pursuant to Section 9.1(g) ), then Seller may present a sight draft under shall be entitled to payment of the Letter of Credit, and thereby retain the Deposit Escrow Amount as liquidated damages free of any claims by Buyer 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 Buyer would be impossible or extremely difficult to ascertain and that the amount of the Deposit Escrow Amount is a fair and reasonable estimate of such damages under the circumstances). If this Agreement is terminated for any reason other than as set forth in the preceding sentence, then Seller the Escrow Amount shall deliver the Letter of Credit be paid to Buyer, free of any claims by Seller or any other Person with respect thereto. (d) If Buyer terminates this Agreement pursuant to Section 9.1(c), then Buyer shall be entitled to recover from Seller $30,000,000 as liquidated damages (the parties hereby acknowledging that the extent of damages to Buyer occasioned by such breach or default by Seller 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).

Limitation on Right to Terminate. Effect of TerminationEFFECT 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 hereof to be performed or observed by such party. (b) If this This Agreement is terminated as permitted under Section 9.1, 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 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. 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 Agreement, in no event shall either party be entitled to receive any punitive, indirect or consequential damages. (c) If (i) Seller terminates this Agreement pursuant to Section 9.1(d) or (ii) this Agreement is terminated by either party pursuant to Section 9.1(e) or 9.1(f) because the requisite Consent from the Hawaii Public Utilities Commission applicable state regulatory commission has not been obtained, or because such Governmental Body has affirmatively indicated that its Consent will not be given, due in whole or in part to concerns about the Buyer's financial, operational or legal qualifications or capabilities, unless such Governmental Body also has affirmatively indicated that its Consent is being withheld due in part to concerns about Seller's operation of the Business or ownership of the Assets or (iii) Seller terminates this Agreement is terminated by Seller pursuant to Section 9.1(g) ), then Seller may present a sight draft under the Letter of Credit, and thereby retain either all of the Deposit (if clause (i) or (iii) is applicable) or $6,300,000 (if clause (ii) is applicable), (or, if the Letter of Credit does not permit Seller to present a sight draft in such circumstances, then Buyer shall pay to Seller in cash an amount equal to the Deposit or $6,300,000, as the case may be, within five (5) business days after the effective date of termination of this Agreement) in either case, as liquidated damages free of any claims by Buyer or any other Person with respect thereto (the parties hereby acknowledging that the extent of damages to Seller occasioned by such breach or default or failure by Buyer would be impossible or extremely difficult to ascertain and that the amount of the Deposit to be paid by Seller is a fair and reasonable estimate of such damages under the circumstances). If this Agreement is terminated for any reason other than as set forth in the preceding sentence, then Seller shall promptly deliver the Letter of Credit to Buyer, free of any claims by Seller or any other Person with respect thereto.