Common use of Purchaser's Failure to Perform Clause in Contracts

Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its obligations hereunder, then the Seller may terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this Agreement, then this Agreement shall be terminated and the Seller may retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Seller, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Seller or any of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.

Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its obligations hereunder, then the Seller may terminate this Agreement by notice to the Purchaser, declare the Sprint Lease Amendment immediately effective and demand that the Escrow Agent release the Sprint Lease Amendment from escrow in accordance with Section 15 hereof. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this Agreement, then this Agreement shall be terminated and the Seller may retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Seller, it being agreed that the Seller's damages are impossible to ascertain, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving ObligationsObligations and the right of the Seller to declare the Sprint Lease Agreement immediately effective and demand that the Escrow Agent release the Sprint Lease Amendment from escrow in accordance with Section 15 hereof. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Seller or Seller, any of the Seller's Affiliates, or any of their respective agents, representatives, invitees, guests or contractors, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.

Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its their obligations hereunder, then the Seller may terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this AgreementIF THE SELLER ELECTS TO TERMINATE THIS AGREEMENT, then this Agreement shall be terminated and the Seller may retain the Deposit as liquidated damages for all lossTHEN THIS AGREEMENT SHALL BE TERMINATED AND THE SELLER MAY RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES FOR ALL LOSS, damage and expenses suffered by the DAMAGE AND EXPENSES SUFFERED BY THE SELLER, AND NO PARTY SHALL HAVE ANY FURTHER RIGHTS, OBLIGATIONS OR LIABILITIES HEREUNDER, EXCEPT FOR THE SURVIVING OBLIGATIONS. Purchaser's Initials Seller, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. _________________ ______________ Purchaser Initials Seller 's Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them it at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its their obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its their obligations under this Agreement is a result of any action of, or failure to act by, the Seller or any of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.

Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its obligations hereunder, then the Seller may terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDERPurchaser shall be deemed to have 29 failed to perform its obligations hereunder if Purchaser has intentionally not used all efforts expressly required pursuant to the terms of this Agreement and such intentional failure has resulted in Purchaser not being able to fulfill its obligations hereunder. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this Agreement, then (i) this Agreement shall be terminated and terminated; (ii) the Seller may shall retain the Deposit Downpayment as liquidated damages damages, as Seller's sole remedy at law or in equity (subject to the immediately following sentence) for all loss, damage and expenses suffered by the Seller, it being agreed that the Seller's damages are impossible to ascertain, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations; and (iii) all interest on the Downpayment shall be disbursed by the Escrow Agent to the Purchaser. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Seller or any of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.

Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its obligations hereunder, then the Seller may terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this Agreement, then this Agreement shall be terminated and the Seller may retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Seller, it being agreed that the Seller's damages are impossible to ascertain, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving ObligationsPurchaser's obligations under Section 4.1(g). Except as set forth in this Section 14.2 and the Surviving Obligations14.2, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Seller or any of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.

Purchaser's Failure to Perform. In If Purchaser fails to perform timely any of Purchaser's obligations hereunder for any reason other than (1) a permitted termination pursuant to this Agreement by Purchaser or (2) Seller's failure to perform Seller's obligations under this Agreement, then, except as provided in subsection 11(a)(4) hereinbelow, Seller, as Seller's sole and exclusive remedy, shall have the event right to terminate this Agreement by giving written notice thereof to Purchaser at or before settlement. (1) A permitted termination is one arising by virtue of (A) the non- occurrence of a default hereunder condition precedent, as hereinbefore provided in Section 10(a)- (c), provided that such non-occurrence is not attributable to the failure of Purchaser to use reasonable efforts to satisfy such a condition precedent, or (B) the receipt by Purchaser of such information as would cause a person of reasonable prudence to call into question (i) the good faith basis of one or more of the warranties and representations of Seller made in Section 9 herein (hereinafter individually and collectively, "WARRANTIES"), (ii) the credibility of such WARRANTIES in light of information received by Purchaser or if (iii) the Closing fails to occur by reason of the Purchaser's failure or refusal likelihood that Seller will be unable to perform its obligations hereunderwith respect to one or more of the WARRANTIES contained therein in light of information received by Purchaser. (2) In the event that Seller gives notice of termination in accordance with this section, then the Seller may terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this Agreement, then this Agreement shall be terminated and the Seller may retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Seller, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement, and the Escrow Agent shall deliver the deposit with interest to Seller as AGREEMENT OF PURCHASE AND SALE XXXXX/AUTOTOTE PAGE 6 liquidated damages, free of any claims by Purchaser or any other person with respect thereto. (3) Notice of intention to declare this Agreement so terminated shall be given in writing to Purchaser and at the expiration of ten days from the date of the receipt of such notice, such termination shall be effective and this Agreement shall be terminated unless and except within such time Purchaser shall have remedied any such default. (4) It is agreed by Purchaser that the deposit to which Seller is entitled hereunder is a result reasonable forecast of any action of, just compensation for the harm that would be caused by Purchaser's breach and that the harm that would be caused by such breach is one that is incapable or failure to act by, the Seller or any very difficult of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreementaccurate estimation.

Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its obligations hereunder, then the Seller may terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this Agreement, then this Agreement shall be terminated and the Seller may retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Seller, it being agreed that the Seller's damages are impossible to ascertain, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Seller or any of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.

Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if If the Closing fails to occur by reason of the Purchaser's unexcused failure or refusal to perform its obligations hereunder, then the Seller may terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this AgreementAgreement due to such default, then this Agreement shall be terminated and the Seller may retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Seller due to such default by the Purchaser, it being agreed that the Seller's damages are impossible to ascertain, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Seller or any of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.

Purchaser's Failure to Perform. In the event of a material default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its obligations hereunder, then the Seller may terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this Agreement, then this Agreement shall be terminated and the Seller may retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Seller, it being agreed that the Seller's damages are impossible to ascertain, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any wrongful action of, or wrongful failure to act by, the Seller or any of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.

Purchaser's Failure to Perform. In the event of a default hereunder by the Purchaser or if the Closing fails to occur by reason of the Purchaser's failure or refusal to perform its obligations hereunder, then the Seller may may, as its sole remedy hereunder, terminate this Agreement by notice to the Purchaser. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AT THE TIME OF SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IF THE PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS HEREUNDER. THEREFORE, IF PURCHASER FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND If the Seller elects to terminate this Agreement, then this Agreement shall be terminated and the Seller may shall retain the Deposit as liquidated damages for all loss, damage and expenses suffered by the Seller, it being agreed that the Seller's damages are impossible to ascertain, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. _________________ ______________ Purchaser Initials Seller Initials Nothing contained herein shall limit or restrict the Seller's ability to pursue any rights or remedies it may have against the Purchaser with respect to the Surviving Obligations. Except as set forth in this Section 14.2 and the Surviving Obligations, the Seller hereby expressly waives, relinquishes and releases any other right or remedy available to them at law, in equity or otherwise by reason of the Purchaser's default hereunder or the Purchaser's failure or refusal to perform its obligations hereunder. Notwithstanding anything to the contrary herein, if the Purchaser's default or the Purchaser's failure or refusal to perform its obligations under this Agreement is a result of any action of, or failure to act by, the Seller or any of the Seller's Affiliates, the Seller shall not be relieved of its obligations under this Agreement and the Seller shall not be entitled to any right or remedy provided in this Section 14.2 or elsewhere in this Agreement.