Common use of Rights and Obligations Upon Breach and/or Termination Clause in Contracts

Rights and Obligations Upon Breach and/or Termination. (a) If Closing does not occur due to Seller’s material breach of the provisions of this Agreement, and Buyer is not then in material breach of the provisions of this Agreement, then (i) if Buyer elects to terminate this Agreement, then the Performance Deposit shall be promptly refunded by Seller to Buyer, or (ii) if Buyer does not elect to terminate this Agreement, Buyer may seek such legal or equitable remedies as Buyer may desire, including, without limitation, damages for the material breach or failure of any representation, warranty, covenant or agreement of Seller contained herein and the right to enforce specific performance of this Agreement. (b) If Closing does not occur due to Buyer’s material breach of the provisions of this Agreement, and Seller is not then in material breach of the provisions of this Agreement, then (i) if Seller elects to terminate this Agreement, then Seller shall be entitled to retain the Performance Deposit, or (ii) if Seller does not elect to terminate this Agreement, Seller may seek such legal or equitable remedies as Seller may desire, including, without limitation, damages for the material breach or failure of any representation, warranty, covenant or agreement of Buyer contained herein and the right to enforce specific performance of this Agreement. (c) If Closing does not occur due to a material breach of the provisions of this Agreement by both Buyer and Seller, then if either party elects to terminate this Agreement, the Performance Deposit shall be promptly refunded by Seller to Buyer. (d) If this Agreement is terminated prior to Closing in accordance with the provisions of this Article XI, the parties shall have no further rights, duties or obligations under this Agreement except (i) as provided in this Article XI, (ii) as provided in Section 4.02(b), and (iii) that the indemnity obligations of Buyer set forth in Section 10.04(b) shall survive any termination of this Agreement prior to Closing regardless of the cause of or party invoking such termination. (e) Notwithstanding the provisions of Section 11.02(d) to the contrary, a party in material breach of the provisions of this Agreement at the time of termination shall not be relieved of or exculpated from any obligation or liability to the terminating party (or any other person) arising out of a claim asserted against the terminating party that accrued prior to the date of such termination and is made by a person who is not a party to this Agreement.

Rights and Obligations Upon Breach and/or Termination. (a) If Closing does not occur due to Seller’s material breach of the provisions of this Agreement, and Buyer is not then in material breach of the provisions of this Agreement, then (i) if Buyer elects to terminate this Agreement, then the Parties shall instruct the Escrow Agent to promptly distribute the Performance Deposit shall be promptly refunded by Seller Deposit, together with any interest thereon, to Buyer, or (ii) if Buyer does not elect to terminate this Agreement, Buyer may seek such legal or equitable remedies as Buyer may desire, including, without limitation, damages for the material breach or failure of any representation, warranty, covenant or agreement of Seller contained herein and the right to enforce specific performance of this Agreement. (b) If Closing does not occur due to Buyer’s material breach of the provisions of this Agreement, and Seller is not then in material breach of the provisions of this Agreement, then (i) if Seller elects to terminate this Agreement, then Seller the Parties shall be entitled instruct the Escrow Agent to retain promptly distribute the Performance Deposit, together with any interest thereon, to Seller as liquidated damages for Buyer’s breach, or (ii) if Seller does not elect to terminate this Agreement, Seller may seek such legal or equitable remedies as Seller may desire, including, without limitation, damages for the material breach or failure of any representation, warranty, covenant or agreement of Buyer contained herein and the right to enforce specific performance of this Agreement. (c) If Closing does not occur due to a material breach of the provisions of this Agreement by both Buyer and Seller, then if either party elects to terminate this Agreement, the Parties shall instruct the Escrow Agent to promptly distribute the Performance Deposit shall be promptly refunded by Seller Deposit, together with any interest thereon, to Buyer. (d) If this Agreement is terminated prior to Closing in accordance with the provisions of this Article XI, the parties shall have no further rights, duties or obligations under this Agreement except (i) as provided in this Article XI, (ii) as provided in Section 4.02(b), and (iii) that the indemnity obligations of Buyer set forth in Section 10.04(b) shall survive any termination of this Agreement prior to Closing regardless of the cause of or party invoking such termination. (e) Notwithstanding the provisions of Section 11.02(d) to the contrary, a party in material breach of the provisions of this Agreement at the time of termination shall not be relieved of or exculpated from any obligation or liability to the terminating party (or any other person) arising out of a claim asserted against the terminating party that accrued prior to the date of such termination and is made by a person who is not a party to this Agreement.