Common use of Remedies Before Closing Clause in Contracts

Remedies Before Closing. If Seller shall be deemed in default under Section 13.2.1 at or before Closing, and Buyer does not waive such default, Buyer may pursue one of the following remedies, each of which shall be Buyer’s sole and exclusive remedy: (a) Institute and prosecute an action to compel specific performance of this Agreement against Seller, in which case Buyer shall have no claim for damages or any other remedy against Seller; provided, however, if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the City and County of San Francisco on or before the date thirty (30) days following the date upon which the Closing hereunder was to have occurred, then Buyer shall be deemed to have elected to terminate this Agreement and receive back the return of its Deposit as provided in Section 13.2.2(b) below. Buyer shall only be entitled to bring a specific performance action against Seller if Seller breaches its obligation to convey the Property to Buyer when and as required pursuant to this Agreement. Seller expressly authorizes the offset of any attorneys’ fees awarded to Buyer as the prevailing party in any specific performance action against the Purchase Price to consummate any specific performance judgment. (b) Terminate this Agreement by written notice delivered to Seller on or before the Closing Date and, in the event of such termination, Buyer shall be entitled, as Buyer’s sole remedy, to the prompt return of the Deposit made by Buyer hereunder, plus its out of pocket costs, not to exceed Fifty Thousand Dollars ($50,000), incurred in connection with this Agreement and Buyer’s due diligence and financing efforts. In no event shall Buyer be entitled to seek to recover from Seller any monetary damages based on any breach or default by Seller at or before Closing. Under no circumstances shall Seller be liable to Buyer for any consequential damages, including, without limitation, lost profits, loss of business or lost income.

Remedies Before Closing. If Seller shall be deemed in default under Section 13.2.1 11.2(a) at or before the Closing, and Buyer does not waive such default, Buyer may pursue one of the following remedies, each of which shall be Buyer’s sole and exclusive remedy: (ai) Institute and prosecute an action to compel specific performance of this Agreement against Seller, subject to applicable law, in which case Buyer shall have no claim for damages or any other remedy against Seller except Buyer may institute and prosecute an action to collect Buyer’s actual monetary damages for delayed performance by Seller, if any, including its reasonable attorneys’ fees and reasonable costs incurred in connection with such action; provided, however, if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the City and Santa Xxxxx County of San Francisco on or before the date thirty sixty (3060) days following the date upon which the Closing hereunder was to have occurred, then Buyer shall be deemed to have elected to terminate this Agreement and receive back the return of its Deposit as provided in Section 13.2.2(b11.2(b)(ii) below. Buyer shall only be entitled to bring a specific performance action against Seller if Seller breaches its obligation to convey the Property to Buyer when and as required pursuant to this Agreement. Seller expressly authorizes the offset of any attorneys’ fees awarded to Buyer as the prevailing party in any specific performance action against the Purchase Price to consummate any specific performance judgment.; or (bii) Terminate this Agreement by written notice delivered to Seller on or before the Closing Date and, in the event of such termination, Buyer shall be entitled, as Buyer’s sole and exclusive remedy, to the prompt return of the Deposit made by Buyer hereunderhereunder and reimbursement from Seller for any actual, plus its out out-of-pocket third-party costs and expenses incurred by Buyer in connection with this transaction, including, without limitation, environmental, architectural and engineering consultants’ fees and reasonable attorneys’ fees, up to the maximum amount of pocket costs, not to exceed Fifty Sixty Thousand Dollars ($50,00060,000). Except as provided above, incurred in connection with this Agreement and Buyer’s due diligence and financing efforts. In no event Buyer shall Buyer not be entitled to seek to recover from Seller any monetary damages based on any breach or default by Seller at or before the Closing. Under no circumstances shall Seller be liable to Buyer for any consequential or speculative losses or damages, including, without limitation, lost profits, loss of business or lost income.

Remedies Before Closing. If Seller shall be deemed in default under Section 13.2.1 11.2(a) at or before Closing, and Buyer does not waive such default, Buyer may pursue one of the following remedies, each of which shall be Buyer’s sole and exclusive remedy: (ai) Institute and prosecute an action to compel specific performance of this Agreement against Seller, in which case Buyer shall have no claim for damages or any other remedy against Seller except Buyer may institute and prosecute an action to collect Buyer’s actual monetary damages for delayed performance by Seller, if any, including its attorneys fees and costs incurred in connection with such action; provided, however, if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the City and Santa Xxxxx County of San Francisco on or before the date thirty (30) days following the date upon which the Closing hereunder was to have occurred, then Buyer shall be deemed to have elected to terminate this Agreement and receive back the return of its Deposit as provided in Section 13.2.2(b11.2(b)(ii) below. Buyer shall only be entitled to bring a specific performance action against Seller if Seller breaches its obligation to convey the Property to Buyer when and as required pursuant to this Agreement. Seller expressly authorizes the offset of any attorneys’ fees awarded to Buyer as the prevailing party in any specific performance action against the Purchase Price to consummate any specific performance judgment.; or (bii) Terminate this Agreement by written notice delivered to Seller on or before the Closing Date and, in the event of such termination, Buyer shall be entitled, as Buyer’s sole and exclusive remedy, to the prompt return of the Deposit made by Buyer hereunderhereunder and, plus its if this Agreement is terminated by Buyer due to a material breach of any of Seller’s representations or warranties set forth in Section 6.3(a) through 6.3(d) above, then Seller also shall reimburse Buyer for Buyer’s out of pocket costs, costs incurred in connection with Buyer’s due diligence review and investigation of the Property in an amount not to exceed in excess of Fifty Thousand Dollars ($50,00050,000.00) together with interest thereon at the rate of ten percent (10%) per annum from the date of Seller’s receipt of written demand for payment (and reasonable back up documentation evidencing Buyer’s out of pocket costs) from Buyer to the date of payment if payment is not made within ten (10) days after Seller’s receipt of such demand therefore, which obligation shall survive termination. (iii) Except as provided in Section 11.2(b)(i) and Section 11.2(b)(ii), incurred in connection with this Agreement and Buyer’s due diligence and financing efforts. In no event Buyer shall Buyer not be entitled to seek to recover from Seller any monetary damages or reimbursement of Buyer’s out of pocket expenses based on any breach or default by Seller at or before ClosingClosing and in no event shall Buyer be entitled to seek or recover from Seller damages in an amount in excess of the Liability Cap. Under no circumstances shall Seller be liable to Buyer for any consequential damages, including, without limitation, lost profits, loss of business or lost income.