Common use of Seller’s Breach Clause in Contracts

Seller’s Breach. If Closing does not occur because Seller wrongfully fails to tender performance at Closing or otherwise breaches this Agreement prior to Closing, and Buyer is ready to close, Seller shall return the Deposit to Buyer immediately after the determination that the Closing will not occur and Buyer shall retain all legal and equitable remedies it has for breach of this Agreement; provided however, that (i) Seller shall not have any liability to Buyer for consequential, special, punitive or exemplary damages arising out of or related to Seller’s breach of any provision of this Agreement and (ii) Buyer waives all equitable remedies for Seller breach of this Agreement, except specific performance, which if Buyer elects to pursue, Buyer must pursue as its sole and exclusive remedy in lieu of all other legal and equitable remedies. Seller’s failure to close shall not be considered wrongful if (i) Seller’s conditions under Section 10.1 are not satisfied through no fault of Seller, or (ii) Seller has terminated this Agreement as of right under Section 11.1.

Seller’s Breach. If Closing does not occur because Seller wrongfully fails to tender performance at Closing or otherwise breaches this Agreement prior to Closing, and Buyer is ready to close, Seller pursuant to the terms and conditions in the Escrow Agreement, the Escrow Amount shall return the Deposit be returned to Buyer immediately after the determination that the Closing will not occur occur. Buyer and Buyer Seller agree that Buyer’s remedies in such event shall retain all legal and equitable remedies it has for breach of this Agreement; provided howeverbe, that at Buyer’s election, (i) Seller shall not an action for specific performance and that the settled rules and elements of specific performance have any liability to Buyer for consequentialbeen met, specialincluding without limitation, punitive or exemplary damages arising out of or related to Seller’s breach of any provision of the following: (1) this Agreement is a valid and binding agreement, (2) this Agreement is free from unfairness, fraud or overreaching and is enforceable without injustice, (3) enforcement by specific performance will not be inequitable, oppressive or unconscionable, and (4) the failure to close this Agreement would result in immediate and irreparable harm to Buyer, no other remedy may be adequate to fully compensate Buyer, and no other adequate remedy at law exists for a material breach by Seller; and/or (ii) Buyer waives all equitable remedies for Seller breach of this Agreement, except specific performance, which if Buyer elects to pursue, Buyer must pursue as its sole and exclusive remedy in lieu of all other legal and equitable remediesrights and remedies available to it under this Agreement or applicable law for Seller’s breach of this Agreement. Seller’s failure to close shall not be considered wrongful if (iA) Seller’s conditions under Section 10.1 11.1 are not satisfied through no fault of Seller, Seller and are not waived; or (iiB) Seller has terminated this Agreement as of right under Section 11.112.1.