Common use of Pre-Closing Remedies Clause in Contracts

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) 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 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 deemed waived, Buyer shall have no right or remedy with respect thereto and Seller shall have no obligation, liability or duty thereafter) or (ii) at Buyer’s election, and as Buyer’s sole and exclusive remedies in such event (as 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 paid by Seller Buyer’s actual and verifiable out-of-pocket costs relating directly to this transaction in an amount not to exceed $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 thirty (30) days to correct and cure such breach and the Closing Date shall be extended to the extent necessary to accommodate such cure period.

Pre-Closing Remedies. In If following the event that, Effective Date and prior to the ClosingClose of Escrow, (A) 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 were untrue, inaccurate or incorrect in a material breachrespect when made and shall give Seller notice thereof prior to the Close of Escrow, default or failure to perform by Seller, including the material breach or failure of any (B) Seller shall notify Buyer that a representation or warranty made herein by SellerSeller was untrue, inaccurate or incorrect in a material respect when made, then Seller may, in its sole discretion, elect by notice to Buyer to adjourn the Close of Escrow one or more times for up to fifteen (15) 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). 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 at or before the Close of Escrow (whether or not the Close of Escrow is adjourned as provided above), Buyer may either shall nevertheless be deemed 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 (ithe “Credit Threshold”) waive (which aggregate amount shall take into account the repetitive nature of any damages suffered by Buyer as a result of such breach, default but in no event shall exceed $225,000), and such misrepresentations or failure and proceed 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 Closing (andthe damages suffered by Buyer in excess of the Credit Threshold. If Buyer’s damages as a result of such representations or warranties being untrue, consistent with Section 5.3.3inaccurate or incorrect when made are or would be, in the event thataggregate, prior equal to or greater than the ClosingThreshold, Buyer obtains actual knowledge and such misrepresentations or breaches of a material breach, default warranty are not cured or failure to perform corrected by Seller if Buyer nonetheless proceeds to Closing and acquires at or before the PropertyClose of Escrow (whether or not the Close of Escrow is adjourned as provided above), then Buyer, as its sole remedy for any and all such actually known material breachuntrue, default inaccurate or failure incorrect representations or warranties, shall elect either (x) to perform shall be deemed waivedwaive such misrepresentations or breaches of warranties and consummate the transactions contemplated hereby without any reduction of or credit against the Purchase Price, Buyer shall have no right or remedy with respect thereto and Seller shall have no obligation, liability or duty thereafter) or (iiy) at Buyer’s election, and as Buyer’s sole and exclusive remedies in such event (as distinct from those set forth and/or covered by Section 8.15.3), (a) bring an action to obtain specific performance of terminate this Agreement against by notice given to Seller at or obtain injunctive relief to prevent a breach before the Close of the terms of this Agreement or (b) terminate this AgreementEscrow, in which event the Escrow Holder this Agreement shall refund to Buyer the full amount of the Exxxxxx Money and be terminated, Buyer shall 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 (less the Review Consideration) shall be paid returned to Buyer, together with any interest earned on it while held by Escrow Holder, Seller shall reimburse Buyer for all of Buyer’s actual and verifiable out-of-out of pocket costs relating directly to and expenses incurred in connection with the transaction (and any financing thereof) contemplated by this transaction Agreement in an the aggregate amount not to exceed $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 thirty One Hundred Thousand and No/100 Dollars (30) days to correct $100,000.00), and cure such breach neither party shall have any further rights, obligations or liabilities hereunder except for the obligations of Buyer and Seller that survive the Closing Date shall be extended to the extent necessary to accommodate such cure periodtermination of this 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) waive such breach, default or failure and proceed to Closing (and, consistent with Section 5.3.3, any Seller defaults in the event that, prior to the Closing, Buyer obtains actual knowledge of a material breachobligation to be performed on the Closing Date, 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 deemed waived, Buyer shall have no right or remedy with respect thereto and Seller shall have no obligation, liability or duty thereafter) or (ii) at Buyer’s electionany 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 as Buyer’s sole and exclusive remedies in such event (as distinct from those set forth and/or covered by Section 8.15.3y) the Closing Date), Buyer shall be entitled, as its sole remedy, either (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 AgreementRestated Agreement and release Seller from any and all liability hereunder, in which event the Escrow Holder case Buyer shall refund to Buyer the full amount receive a return of the Exxxxxx Money Deposit (excluding the Independent Consideration) and Seller shall reimburse Buyer shall be paid by Seller Buyer’s actual and verifiable for its out-of-pocket costs relating directly 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 transaction 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 amount not to exceed $50,000.00; 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, however, 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 event where provision (b) above shall applydamages other than the actual and reasonably foreseeable damages of Buyer, Seller shalltogether with any damages, if Seller so electsincluding, have a period of up to thirty (30) days to correct without limitation, incidental, consequential and cure such breach and the Closing Date shall be extended punitive damages to the extent necessary to accommodate such cure periodactually 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 that, Effective Date of this Agreement and prior to the ClosingClose of Escrow, Buyer obtains actual knowledge (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 breachrespect when made (and Buyer shall give Seller notice thereof prior to the Close of Escrow), default or failure to perform by Seller, including the material breach (B) Seller shall notify Buyer or failure of any Buyer’s Knowledge Party otherwise becomes aware that a representation or warranty made herein by SellerSeller 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 may either 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) waive such breach, default or failure and proceed are actually quantifiable by Buyer in a sum certain not to Closing (and, consistent with Section 5.3.3, exceed in the event thataggregate $250,000 (the “Threshold”), prior to the Closing, Buyer obtains actual knowledge and (ii) such misrepresentations or breaches of a material breach, default warranty are not cured or failure to perform corrected by Seller if Buyer nonetheless proceeds to Closing and acquires at or before the Property, then such actually known material breach, default Close of Escrow (whether or failure to perform shall be deemed waivednot the Close of Escrow is adjourned as provided above), Buyer shall have no right nevertheless be deemed 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 with respect thereto for any and Seller all such untrue, inaccurate or incorrect representations or warranties, shall have no obligationelect 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, liability or duty thereafter) or (iiy) at Buyer’s election, and as Buyer’s sole and exclusive remedies in such event (as distinct from those set forth and/or covered by Section 8.15.3), (a) bring an action to obtain specific performance of terminate this Agreement against by notice given to Seller at or obtain injunctive relief to prevent a breach before the Close of the terms of this Agreement or (b) terminate this AgreementEscrow, in which event the Escrow Holder this Agreement shall refund to Buyer the full amount of the Exxxxxx Money and be terminated, Buyer shall 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 shall be paid 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 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 all of Buyer’s actual and verifiable documented, out-of-pocket costs relating directly to and expenses incurred by Buyer in connection with its investigation of the Property, the negotiation of this transaction Agreement, joint venture structuring and 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 exceed $50,000.00; provided200,000 in the aggregate (collectively, however“Pursuit Costs”), that, in any event where provision (b) above shall apply, Seller shall, if Seller so elects, have a period with such reimbursement obligation to survive the termination of up to thirty (30) days to correct and cure such breach and the Closing Date shall be extended to the extent necessary to accommodate such cure periodthis 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) waive such breach, default or failure and proceed to Closing (and, consistent with Section 5.3.35.33, in the event that, prior to the Closing, Buyer obtains actual knowledge of a material 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 deemed waived, Buyer shall have no right or remedy with respect thereto and Seller shall have no obligation, liability or duty thereafter) or (ii) at Buyer’s election, and as Buyer’s sole and exclusive remedies in such event (as 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 Xxxxxxx Money, Seller shall repay to Buyer any Costs and Excess Costs previously paid, and Buyer shall be paid paid. by Seller Buyer’s actual and verifiable out-of-pocket costs relating directly to this transaction in an amount not to exceed $50,000.00100,000; provided, however, that, that in any event where provision (b) above shall apply, Seller shall, if Seller so elects, have a period of up to thirty (30) days to correct and cure such breach and the Closing Date shall be extended to the extent necessary to accommodate such cure period.