Common use of Pre-Closing Remedies Clause in Contracts

Pre-Closing Remedies. In the event (i) any Seller defaults in a material obligation to be performed on the Closing Date, or (ii) any Seller defaults in a material obligation to be performed prior to the Closing Date (and, with respect to any default under this clause (ii) only, such default shall continue until the earlier of (x) three (3) business days after notice to Seller and (y) the Closing Date), Buyer shall be entitled, as its sole remedy, either (a) terminate this Restated Agreement and release Seller from any and all liability hereunder, in which case Buyer shall receive a return of the Deposit (excluding the Independent Consideration) and Seller shall reimburse Buyer for its out-of-pocket costs incurred in connection with the transactions contemplated by this Restated Agreement up to and not exceeding Five Hundred Thousand and No/100 Dollars ($500,000.00) or (b) to enforce specific performance of Seller’s obligation to execute and deliver the documents required in accordance with the terms of this Restated Agreement to allow Closing to occur, and to otherwise deliver possession of the Property to Buyer at Closing, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder or to enforce an obligation of Seller that requires consent from a third party that has not been received. Except as set forth below, Buyer expressly waives its rights to seek damages in the event of Seller’s default hereunder. Buyer shall be deemed to have elected to terminate this Restated Agreement and receive back the Deposit (excluding the Independent Consideration) if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. As material consideration to Seller’s entering into this Restated Agreement with Buyer, Buyer expressly waives any right under California Code of Civil Procedure, Part II, Title 4.5 (Sections 405 through 405.60) or at common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all of any portion of the Property except in connection with an action for specific performance. Nothing contained in this Section 14.2.1 shall limit or prevent Buyer from (a) if the Closing under this Restated Agreement occurs, asserting any legal or equitable claims against Seller for any breaches of Seller’s representations and warranties in Section 8.1 in strict accordance with Section 8.1, (b) enforcing any specific and express indemnity obligation of Seller under this Restated Agreement or preclude Buyer from obtaining a damage award in connection therewith, or (c) enforcing Seller’s other obligations and liabilities set forth in this Restated Agreement which expressly survive a termination of this Restated Agreement, provided, that, notwithstanding anything to the contrary set forth in this Restated Agreement, in no event shall Buyer be entitled to or Seller be liable for any damages other than the actual and reasonably foreseeable damages of Buyer, together with any damages, including, without limitation, incidental, consequential and punitive damages to the extent actually awarded in any third party claims for which Seller has expressly indemnified Buyer under this Restated Agreement.

Pre-Closing Remedies. In the event that, prior to the Closing, Buyer obtains actual knowledge of a material breach, default or failure to perform by Seller, including the material breach or failure of any representation or warranty made by Seller, Buyer may either (i) any Seller defaults waive such breach, default or failure and proceed to Closing (and, consistent with Section 5.33, in the event that, prior to the Closing, Buyer obtains actual knowledge of a material obligation breach, default or failure to perform by Seller if Buyer nonetheless proceeds to Closing and acquires the Property, then such actually known material breach, default or failure to perform shall be performed on the Closing Datedeemed waived, Buyer shall have no right or remedy with respect thereto and Seller shall have no obligation, liability or duty thereafter) or (ii) any Seller defaults at Buyer’s election, and as Buyer’s sole and exclusive remedies in a material obligation to be performed prior to the Closing Date such event (and, with respect to any default under this clause (ii) only, such default shall continue until the earlier of (x) three (3) business days after notice to Seller and (y) the Closing Dateas distinct from those set forth and/or covered by Section 8.15.3), (a) bring an action to obtain specific performance of this Agreement against Seller or obtain injunctive relief to prevent a breach of the terms of this Agreement or (b) terminate this Agreement, in which event the Escrow Holder shall refund to Buyer the full amount of the Xxxxxxx Money, Seller shall repay to Buyer any Costs and Excess Costs previously paid, and Buyer shall be entitled, as its sole remedy, either (a) terminate this Restated Agreement paid. by Seller Buyer’s actual and release Seller from any and all liability hereunder, in which case Buyer shall receive a return of the Deposit (excluding the Independent Consideration) and Seller shall reimburse Buyer for its verifiable out-of-pocket costs incurred relating directly to this transaction in connection with the transactions contemplated by this Restated Agreement up an amount not to and not exceeding Five Hundred Thousand and No/100 Dollars (exceed $500,000.00) or 100,000; provided, however, that in any event where provision (b) above shall apply, Seller shall, if Seller so elects, have a period of up to enforce specific performance of Seller’s obligation thirty (30) days to execute correct and deliver cure such breach and the documents required in accordance with the terms of this Restated Agreement to allow Closing to occur, and to otherwise deliver possession of the Property to Buyer at Closing, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder or to enforce an obligation of Seller that requires consent from a third party that has not been received. Except as set forth below, Buyer expressly waives its rights to seek damages in the event of Seller’s default hereunder. Buyer Date shall be deemed to have elected to terminate this Restated Agreement and receive back the Deposit (excluding the Independent Consideration) if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. As material consideration to Seller’s entering into this Restated Agreement with Buyer, Buyer expressly waives any right under California Code of Civil Procedure, Part II, Title 4.5 (Sections 405 through 405.60) or at common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all of any portion of the Property except in connection with an action for specific performance. Nothing contained in this Section 14.2.1 shall limit or prevent Buyer from (a) if the Closing under this Restated Agreement occurs, asserting any legal or equitable claims against Seller for any breaches of Seller’s representations and warranties in Section 8.1 in strict accordance with Section 8.1, (b) enforcing any specific and express indemnity obligation of Seller under this Restated Agreement or preclude Buyer from obtaining a damage award in connection therewith, or (c) enforcing Seller’s other obligations and liabilities set forth in this Restated Agreement which expressly survive a termination of this Restated Agreement, provided, that, notwithstanding anything to the contrary set forth in this Restated Agreement, in no event shall Buyer be entitled to or Seller be liable for any damages other than the actual and reasonably foreseeable damages of Buyer, together with any damages, including, without limitation, incidental, consequential and punitive damages extended to the extent actually awarded in any third party claims for which Seller has expressly indemnified Buyer under this Restated Agreementnecessary to accommodate such cure period.

Pre-Closing Remedies. If following the Effective Date of this Agreement and prior to the Close of Escrow, (A) Buyer’s Knowledge Party first shall become aware (whether through Buyer’s efforts, by notice from Seller or otherwise) that any of the representations or warranties made herein by Seller were untrue, inaccurate or incorrect in a material respect when made (and Buyer shall give Seller notice thereof prior to the Close of Escrow), or (B) Seller shall notify Buyer or Buyer’s Knowledge Party otherwise becomes aware that a representation or warranty made herein by Seller has become untrue, inaccurate or incorrect in a material respect after the date made, then Seller shall take reasonable steps necessary to make such representation or warranty true, accurate and correct, and in pursuance thereof may, in its sole discretion, elect by notice to Buyer to adjourn the Close of Escrow one or more times for up to thirty (30) days in the aggregate in order to cure or correct such untrue, inaccurate or incorrect representation or warranty by giving at least five (5) business days’ prior written notice (if possible). In the event that the amount of Buyer’s damages as a result of such representations or warranties being so untrue, inaccurate or incorrect when made or subsequently becoming untrue, inaccurate or incorrect (i) any Seller defaults are actually quantifiable by Buyer in a material obligation sum certain not to be performed on exceed in the Closing Dateaggregate $250,000 (the “Threshold”), or and (ii) any such misrepresentations or breaches of warranty are not cured or corrected by Seller defaults in a material obligation to be performed prior to at or before the Closing Date Close of Escrow (and, with respect to any default under this clause (ii) only, such default shall continue until whether or not the earlier Close of (x) three (3) business days after notice to Seller and (y) the Closing DateEscrow is adjourned as provided above), Buyer shall nevertheless be entitleddeemed to, and shall, waive such misrepresentations or breaches of warranty and shall consummate the transactions contemplated hereby, and at the Close of Escrow Buyer shall receive a credit against the Purchase Price in the amount of such damages. If Buyer’s damages, as a result of such representations or warranties being untrue, inaccurate or incorrect when made are or would be in the aggregate, equal to or greater than the Threshold, or are unquantifiable, and such misrepresentations or breaches of warranty are not cured or corrected by Seller at or before the Close of Escrow (whether or not the Close of Escrow is adjourned as provided above), then Buyer, as its sole remedy, either (a) terminate this Restated Agreement and release Seller from remedy for any and all liability hereundersuch untrue, inaccurate or incorrect representations or warranties, shall elect either (x) to waive such misrepresentations or breaches of warranties and consummate the transactions contemplated hereby without any reduction of or credit against the Purchase Price, or (y) to terminate this Agreement by notice given to Seller at or before the Close of Escrow, in which case event this Agreement shall be terminated, Buyer shall receive a upon Seller’s request promptly return to Seller all Seller Information provided to Buyer, with such delivery obligation to survive the termination of this Agreement, the Deposit (excluding shall be returned to Buyer, together with any interest earned on it while held by Escrow Holder, and neither party shall have any further rights, obligations or liabilities hereunder except for the Independent Consideration) obligations of Buyer and Seller that survive the termination of this Agreement; provided, however, that if the applicable representation or warranty (1) was untrue, inaccurate or incorrect when made or (2) subsequently became untrue, inaccurate or incorrect by reason of Seller’s default of its obligations under this Agreement or by reason of something within Seller’s reasonable control to prevent, then Seller shall also reimburse Buyer for its all of Buyer’s documented, out-of-pocket costs and expenses incurred by Buyer in connection with its investigation of the transactions contemplated by this Restated Agreement up to and not exceeding Five Hundred Thousand and No/100 Dollars ($500,000.00) or (b) to enforce specific performance of Seller’s obligation to execute and deliver Property, the documents required in accordance with the terms negotiation of this Restated Agreement to allow Closing to occurAgreement, joint venture structuring and to otherwise deliver possession negotiation, development and design costs and pursuit of financing for the acquisition of the Property (including reasonable attorneys’ fees and expenses) in an amount not to Buyer at Closing, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder or to enforce an obligation of Seller that requires consent from a third party that has not been received. Except as set forth below, Buyer expressly waives its rights to seek damages exceed $200,000 in the event of Seller’s default hereunder. Buyer shall be deemed aggregate (collectively, “Pursuit Costs”), with such reimbursement obligation to have elected to terminate this Restated Agreement and receive back survive the Deposit (excluding the Independent Consideration) if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. As material consideration to Seller’s entering into this Restated Agreement with Buyer, Buyer expressly waives any right under California Code of Civil Procedure, Part II, Title 4.5 (Sections 405 through 405.60) or at common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all of any portion of the Property except in connection with an action for specific performance. Nothing contained in this Section 14.2.1 shall limit or prevent Buyer from (a) if the Closing under this Restated Agreement occurs, asserting any legal or equitable claims against Seller for any breaches of Seller’s representations and warranties in Section 8.1 in strict accordance with Section 8.1, (b) enforcing any specific and express indemnity obligation of Seller under this Restated Agreement or preclude Buyer from obtaining a damage award in connection therewith, or (c) enforcing Seller’s other obligations and liabilities set forth in this Restated Agreement which expressly survive a termination of this Restated Agreement, provided, that, notwithstanding anything to the contrary set forth in this Restated Agreement, in no event shall Buyer be entitled to or Seller be liable for any damages other than the actual and reasonably foreseeable damages of Buyer, together with any damages, including, without limitation, incidental, consequential and punitive damages to the extent actually awarded in any third party claims for which Seller has expressly indemnified Buyer under this Restated Agreement.

Pre-Closing Remedies. In If following the event Effective Date and prior to the Close of Escrow, (iA) Buyer first obtains actual knowledge (whether through its own efforts, by notice from Seller or otherwise) that any of the representations or warranties made herein by Seller defaults were untrue, inaccurate or incorrect in a material obligation respect when made and shall give Seller notice thereof prior to be performed on the Closing DateClose of Escrow, or (iiB) any Seller defaults shall notify Buyer that a representation or warranty made herein by Seller was untrue, inaccurate or incorrect in a material obligation respect when made, then Seller may, in its sole discretion, elect by notice to be performed prior Buyer to adjourn the Closing Date Close of Escrow one or more times for up to fifteen (and15) days in the aggregate in order to cure or correct such untrue, with respect to any default under this clause inaccurate or incorrect representation or warranty by giving at least five (ii) only, such default shall continue until the earlier of (x) three (35) business days after days’ prior written notice to (if possible). If Buyer’s damages as a result of such representations or warranties being so untrue, inaccurate or incorrect are or would be, in the aggregate, less than $250,000.00 (which aggregate amount shall take into account the repetitive nature of any damages suffered by Buyer as a result of such breach), (the “Threshold”), and such misrepresentations or breaches of warranty are not cured or corrected by Seller and at or before the Close of Escrow (y) whether or not the Closing DateClose of Escrow is adjourned as provided above), Buyer shall nevertheless be entitleddeemed to, and shall, waive such misrepresentations or breaches of warranty and shall consummate the transactions contemplated hereby without any reduction of or credit against the Purchase Price, provided, however, that in the event Buyer’s damages as a result of such representations or warranties being so untrue, inaccurate or incorrect are or would be, in the aggregate, greater than $25,000 (the “Credit Threshold”) (which aggregate amount shall take into account the repetitive nature of any damages suffered by Buyer as a result of such breach, but in no event shall exceed $225,000), and such misrepresentations or breaches of warranty are not cured or corrected by Seller at or before the Close of Escrow, Buyer shall receive a credit against the Base Purchase Price in the amount equal to the damages suffered by Buyer in excess of the Credit Threshold. If Buyer’s damages as a result of such representations or warranties being untrue, inaccurate or incorrect when made are or would be, in the aggregate, equal to or greater than the Threshold, and such misrepresentations or breaches of warranty are not cured or corrected by Seller at or before the Close of Escrow (whether or not the Close of Escrow is adjourned as provided above), then Buyer, as its sole remedy, either (a) terminate this Restated Agreement and release Seller from remedy for any and all liability hereundersuch untrue, inaccurate or incorrect representations or warranties, shall elect either (x) to waive such misrepresentations or breaches of warranties and consummate the transactions contemplated hereby without any reduction of or credit against the Purchase Price, or (y) to terminate this Agreement by notice given to Seller at or before the Close of Escrow, in which case event this Agreement shall be terminated, Buyer shall receive a promptly return to Seller or destroy all Seller Information provided to Buyer, with such delivery or destruction obligation to survive the termination of this Agreement, the Deposit (excluding less the Independent Review Consideration) and shall be returned to Buyer, together with any interest earned on it while held by Escrow Holder, Seller shall reimburse Buyer for its out-of-all of Buyer’s actual out of pocket costs and expenses incurred in connection with the transactions transaction (and any financing thereof) contemplated by this Restated Agreement in the aggregate amount of up to and not exceeding Five One Hundred Thousand and No/100 Dollars ($500,000.00) or (b) to enforce specific performance of Seller’s obligation to execute and deliver the documents required in accordance with the terms of this Restated Agreement to allow Closing to occur100,000.00), and to otherwise deliver possession neither party shall have any further rights, obligations or liabilities hereunder except for the obligations of the Property to Buyer at Closing, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder or to enforce an obligation of Seller that requires consent from a third party that has not been received. Except as set forth below, Buyer expressly waives its rights to seek damages in survive the event of Seller’s default hereunder. Buyer shall be deemed to have elected to terminate this Restated Agreement and receive back the Deposit (excluding the Independent Consideration) if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. As material consideration to Seller’s entering into this Restated Agreement with Buyer, Buyer expressly waives any right under California Code of Civil Procedure, Part II, Title 4.5 (Sections 405 through 405.60) or at common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all of any portion of the Property except in connection with an action for specific performance. Nothing contained in this Section 14.2.1 shall limit or prevent Buyer from (a) if the Closing under this Restated Agreement occurs, asserting any legal or equitable claims against Seller for any breaches of Seller’s representations and warranties in Section 8.1 in strict accordance with Section 8.1, (b) enforcing any specific and express indemnity obligation of Seller under this Restated Agreement or preclude Buyer from obtaining a damage award in connection therewith, or (c) enforcing Seller’s other obligations and liabilities set forth in this Restated Agreement which expressly survive a termination of this Restated Agreement, provided, that, notwithstanding anything to the contrary set forth in this Restated Agreement, in no event shall Buyer be entitled to or Seller be liable for any damages other than the actual and reasonably foreseeable damages of Buyer, together with any damages, including, without limitation, incidental, consequential and punitive damages to the extent actually awarded in any third party claims for which Seller has expressly indemnified Buyer under this Restated Agreement.

Pre-Closing Remedies. In the event that, prior to the Closing, Buyer obtains actual knowledge of a material breach, default or failure to perform by Seller, including the material breach or failure of any representation or warranty made by Seller, Buyer may either (i) any Seller defaults waive such breach, default or failure and proceed to Closing (and, consistent with Section 5.3.3, in the event that, prior to the Closing, Buyer obtains actual knowledge of a material obligation breach, default or failure to perform by Seller if Buyer nonetheless proceeds to Closing and acquires the Property, then such actually known material breach, default or failure to perform shall be performed on the Closing Datedeemed waived, Buyer shall have no right or remedy with respect thereto and Seller shall have no obligation, liability or duty thereafter) or (ii) any Seller defaults at Buyer’s election, and as Buyer’s sole and exclusive remedies in a material obligation to be performed prior to the Closing Date such event (and, with respect to any default under this clause (ii) only, such default shall continue until the earlier of (x) three (3) business days after notice to Seller and (y) the Closing Dateas distinct from those set forth and/or covered by Section 8.15.3), (a) bring an action to obtain specific performance of this Agreement against Seller or obtain injunctive relief to prevent a breach of the terms of this Agreement or (b) terminate this Agreement, in which event the Escrow Holder shall refund to Buyer the full amount of the Exxxxxx Money and Buyer shall be entitled, as its sole remedy, either (a) terminate this Restated Agreement paid by Seller Buyer’s actual and release Seller from any and all liability hereunder, in which case Buyer shall receive a return of the Deposit (excluding the Independent Consideration) and Seller shall reimburse Buyer for its verifiable out-of-pocket costs incurred relating directly to this transaction in connection with the transactions contemplated by this Restated Agreement up an amount not to and not exceeding Five Hundred Thousand and No/100 Dollars (exceed $500,000.00) or 50,000.00; provided, however, that, in any event where provision (b) above shall apply, Seller shall, if Seller so elects, have a period of up to enforce specific performance of Seller’s obligation thirty (30) days to execute correct and deliver cure such breach and the documents required in accordance with the terms of this Restated Agreement to allow Closing to occur, and to otherwise deliver possession of the Property to Buyer at Closing, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder or to enforce an obligation of Seller that requires consent from a third party that has not been received. Except as set forth below, Buyer expressly waives its rights to seek damages in the event of Seller’s default hereunder. Buyer Date shall be deemed to have elected to terminate this Restated Agreement and receive back the Deposit (excluding the Independent Consideration) if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. As material consideration to Seller’s entering into this Restated Agreement with Buyer, Buyer expressly waives any right under California Code of Civil Procedure, Part II, Title 4.5 (Sections 405 through 405.60) or at common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all of any portion of the Property except in connection with an action for specific performance. Nothing contained in this Section 14.2.1 shall limit or prevent Buyer from (a) if the Closing under this Restated Agreement occurs, asserting any legal or equitable claims against Seller for any breaches of Seller’s representations and warranties in Section 8.1 in strict accordance with Section 8.1, (b) enforcing any specific and express indemnity obligation of Seller under this Restated Agreement or preclude Buyer from obtaining a damage award in connection therewith, or (c) enforcing Seller’s other obligations and liabilities set forth in this Restated Agreement which expressly survive a termination of this Restated Agreement, provided, that, notwithstanding anything to the contrary set forth in this Restated Agreement, in no event shall Buyer be entitled to or Seller be liable for any damages other than the actual and reasonably foreseeable damages of Buyer, together with any damages, including, without limitation, incidental, consequential and punitive damages extended to the extent actually awarded in any third party claims for which Seller has expressly indemnified Buyer under this Restated Agreementnecessary to accommodate such cure period.