Common use of Default by Contractor Clause in Contracts

Default by Contractor. The Trust may terminate the Contract for cause, including: (a) a material breach of any covenant or agreement contained in the Contract; (b) if the Contractor shall default in the timely performance of any of its obligations under the Contract and such default shall continue for a period of three (3) days after written notice from the Trust specifying the occurrence, omission or failure giving rise to such default, or if in the opinion of the Trust, by reason of the nature of such default, such default cannot be cured within such three (3) day period and the Contractor has not promptly prosecuted the curing of such default; (c) any representation or warranty made or deemed to have been made under the Contract by the Contractor shall prove to be untrue in any material respect; or (d) the Contractor shall make a general assignment for the benefit of its creditors, or a receiver or trustee shall have been appointed on account of Contractor’s insolvency, or Contractor otherwise shall be or become insolvent, or an order for relief shall have been entered against Contractor under Chapter 7 or Chapter 11 of Title 11 of the United States Bankruptcy Code. In addition to any other remedies or claims that the Trust may have with respect to such representation or such default, the Trust may terminate the Contract immediately upon three (3) days’ written notice to the Contractor. In the event of such termination, the Trust, without waiving any such remedy or claims, (including consequential damages) shall pay the Contractor that portion of the fee and reimbursable costs, not paid to the Contractor, commensurate with those Services actually and satisfactorily performed by the Contractor up to the date of such termination, provided, however, that the Trust shall deduct from any amounts due to the Contractor for additional costs and expenses that the Trust may incur in connection with the completion of the Services by another contractor(s) or Contractor(s). The Contractor agrees to cause any agreement or contract entered into by the Contractor with any Subcontractors to contain a termination for default clause consistent with the provisions of this Subsection 5.

Default by Contractor. The Trust may terminate the Contract for cause, including: (a) a material breach of any covenant or agreement contained in the Contract; (b) if the Contractor shall default in the timely performance of any of its obligations under the Contract and such default shall continue for a period of three (3) days after written notice from the Trust specifying the occurrence, omission or failure giving rise to such default, or if in the opinion of the Trust, by reason of the nature of such default, such default cannot be cured within such three (3) day period and the Contractor has not promptly prosecuted the curing of such default; (c) any representation or warranty made or deemed to have been made under the Contract by the Contractor shall prove to be untrue in any material respect; or (d) the Contractor shall make a general assignment for the benefit of its creditors, or a receiver or trustee shall have been appointed on account of Contractor’s insolvency, or Contractor otherwise shall be or become insolvent, or an order for relief shall have been entered against Contractor under Chapter 7 or Chapter 11 of Title 11 of the United States Bankruptcy Code. In addition to any other remedies or claims that the Trust may have with respect to such representation or such default, the Trust may terminate the Contract immediately upon three (3) days’ written notice to the Contractor. In the event of such termination, the Trust, without waiving any such remedy or claims, claims (including consequential damages) ), shall pay the Contractor that portion of the fee and reimbursable costs, not paid to the Contractor, commensurate with those Services actually and satisfactorily performed by the Contractor up to the date of such termination, provided, however, that the Trust shall deduct from any amounts due to the Contractor for additional costs and expenses that the Trust may incur in connection with the completion of the Services by another contractor(s) or Contractor(ssubcontractor(s). The Contractor agrees to cause any agreement or contract entered into by the Contractor with any Subcontractors to contain a termination for default clause consistent with the provisions of this Subsection 5.

Default by Contractor. The Trust may terminate CONTRACTOR shall be in default of this Agreement if: CONTRACTOR refuses or fails to prosecute the Contract for causework or any separable part thereof with such diligence as will ensure its completion within the time specified herein, including: (a) a material breach of or any covenant written extension thereof, or agreement contained in the Contract; (b) if the Contractor shall default in the timely performance of any of its obligations under the Contract and fails to complete such default shall continue for a period of three (3) days after written notice from the Trust specifying the occurrence, omission or failure giving rise to work within such defaulttime, or if in the opinion of the TrustCONTRACTOR should be adjudged a bankrupt, by reason of the nature of such default, such default cannot be cured within such three (3) day period and the Contractor has not promptly prosecuted the curing of such default; (c) any representation or warranty made or deemed to have been made under the Contract by the Contractor shall prove to be untrue in any material respect; or (d) the Contractor shall make a general assignment for the benefit of its creditors, or if a receiver or trustee shall have been should be appointed on account of Contractor’s CONTRACTOR’S insolvency, or Contractor otherwise shall be if CONTRACTOR or become insolvent, or an order for relief shall have been entered against Contractor under Chapter 7 or Chapter 11 any of Title 11 their subcontractors violate any of the United States Bankruptcy Code. In addition to any other remedies or claims that the Trust may have with respect to such representation or such default, the Trust may terminate the Contract immediately upon three (3) days’ written notice to the Contractor. In the event of such termination, the Trust, without waiving any such remedy or claims, (including consequential damages) shall pay the Contractor that portion of the fee and reimbursable costs, not paid to the Contractor, commensurate with those Services actually and satisfactorily performed by the Contractor up to the date of such termination, provided, however, that the Trust shall deduct from any amounts due to the Contractor for additional costs and expenses that the Trust may incur in connection with the completion of the Services by another contractor(s) or Contractor(s). The Contractor agrees to cause any agreement or contract entered into by the Contractor with any Subcontractors to contain a termination for default clause consistent with the provisions of this Subsection 5Agreement, or if CONTRACTOR fails to make prompt payment for materials or labor, or if CONTRACTOR disregards laws, ordinances, or instructions of CITY. CITY may thereafter serve written notice upon the CONTRACTOR and CONTRACTOR’S surety of its intention to declare this Agreement in default. Said notice shall contain the reasons for such intention to declare a default. Unless, within ten (10) days after the service of such notice, such violations shall cease and satisfactory arrangements for the corrections thereof be made, this Agreement shall upon the expiration of said time be in default. Upon such default, CITY shall serve written notice thereof upon the surety and CONTRACTOR, and the surety shall have the right to take over and perform this Agreement. If the surety does not, within fifteen (15) days after the serving upon it of a notice of a default, give CITY written notice of its intention to take over and perform this Agreement or does not commence performance thereof within thirty (30) days from the date of CITY'S notice, CITY may take over the work and prosecute the same to the extent of completion it deems necessary by contract or by any other method it may deem advisable for the account and at the expense of CONTRACTOR, and the surety shall be liable to CITY for any cost or other damage occasioned CITY thereby. In such event CITY may, without liability for so doing, take possession of, and utilize in completing such work, such materials, appliances, plants, and other property belonging to CONTRACTOR that may be on the site of the work and be necessary therefor. Should surety fail to take over and diligently perform the Agreement upon CONTRACTOR’S default, surety agrees to promptly on demand deposit with CITY such amount as CITY may reasonably estimate as the cost of completing all of CONTRACTOR’S obligations. For any such work the CITY elects to complete by furnishing its own employees, materials, tools, and equipment, CITY shall receive reasonable compensation therefor including costs of supervision and overhead. CITY may, at its option, elect not to complete any or all of the work and may elect not to accept any of the work already completed. If CITY elects not to accept any of the work, then all CITY'S obligations to CONTRACTOR and the lands to be served shall terminate. CITY'S obligations to CONTRACTOR and the lands to be served shall continue to the extent of any acceptance, subject to CITY'S right to offset any sums due the CITY. The foregoing provisions are in addition to and not in limitation of any other rights or remedies available to CITY.

Default by Contractor. A. The Trust may terminate following events shall all be considered “Contractor Defaults” under this Agreement: (i) involuntary bankruptcy liquidation, reorganization or insolvency, (ii) materially false or misleading representation or warranty, (iii) failure to comply with any material applicable law or permit, (iv) failure to achieve Completion on or prior to the Contract for causeCompletion Date, including:and (v) failure to perform or observe any other material provision of this Agreement. (a) B. In the event of a material breach Contractor Default, then, after Owner serving one week’s written notice specifying the nature and origin of any covenant the alleged default, unless Contractor cures such condition within such week or agreement contained in the Contract; (b) if the Contractor shall default in the timely performance of any of its obligations under the Contract and such default shall continue for a period of three (3) days after written notice from the Trust specifying the occurrence, omission or failure giving rise to such default, or if in the opinion of the Trust, by reason of the nature of such default, such default cancan not reasonably be cured within such three week, then within six (36) day period and the weeks, provided that Contractor has not promptly prosecuted the curing of such default; (c) any representation or warranty made or deemed taken adequate steps to have been made under the Contract by the Contractor shall prove initiate cure and diligently proceeds to be untrue in any material respect; or (d) the Contractor shall make a general assignment for the benefit of its creditors, or a receiver or trustee shall have been appointed on account of Contractor’s insolvency, or Contractor otherwise shall be or become insolvent, or an order for relief shall have been entered against Contractor under Chapter 7 or Chapter 11 of Title 11 of the United States Bankruptcy Code. In addition to any other remedies or claims that the Trust may have with respect to such representation or cure such default, Owner, at its option, without voiding the Trust may terminate the Contract immediately upon three (3) days’ written other provisions of this Agreement and without further notice to the Contractor. In the event any party, may avail itself of such terminationany rights and remedies allowed by law or this Agreement, the Trust, without waiving any such remedy including but not limited to (i) immediate termination in whole or claimspart of this Agreement, (including consequential damagesii) performing the Work itself or by contracting a third party, in which case Contractor shall pay the Contractor that portion of the fee cooperate and reimbursable costs, not paid provide all assistance to the Contractor, commensurate with those Services actually and satisfactorily performed by the Contractor up to the date of such termination, provided, however, that the Trust shall deduct from any amounts due to the Contractor Owner or Owner’s representatives necessary for additional costs and expenses that the Trust may incur in connection with the completion of the Services Work, (iii) seek specific performance or interlocutory mandatory injunctive relief requiring performance of Contractor’s obligations, it being agreed by another contractor(sContractor that such relief may be necessary to avoid irreparable harm to Owner; and (iv) exercise of any other remedy Owner may have under this Agreement and/or at law or Contractor(s)in equity, including recovery of damages. C. In the event that Owner terminates this Agreement in whole or in part for Contractor Default, then Owner may, at its sole option, (i) enter onto the Fuel Line right of way and take possession of it, all of the equipment to be included in the Fuel Line and, for the purpose of completing the Work, all of the materials, tools, supplies, documents, and information of Contractor, (ii) take assignment of any or all of the Subcontracts, and/or (iii) either itself or through others, complete the Work. The In such an event, Contractor agrees to cause any agreement or contract entered into shall provide all assignments and other documentation that may be reasonably required by Owner. D. All terms, covenants, conditions, and obligations under this Agreement shall survive the Contractor with any Subcontractors to contain a termination for default clause consistent with the provisions of this Subsection 5Agreement, including but not limited to any claims, demands, obligations, losses, liens, or causes of action arising out of the Work or the performance of the Work by Contractor or its subcontractors, warranties, indemnities, insurance coverage and protection, workmanship, repair obligations and obligations with respect to proprietary and confidential information.

Default by Contractor. The Trust may terminate Each of the Contract following events shall constitute a default by Contractor for cause, including: purposes of this Section 20.2: (a) a material breach commencement of proceedings by or against Contractor under any covenant law relating to bankruptcy, moratorium, reorganization or agreement contained in the Contract; insolvency; or (b) any material uncorrected failure by Contractor to comply with any of the terms or conditions of this Mining Contract, irrespective of whether or not such failure is identified as a reason for termination elsewhere in this Mining Contract. In the event of any alleged default by Contractor, MSR shall notify Contractor in writing of such default condition, and if Contractor fails to present in writing to MSR within ten (10) calendar days after its receipt of such notice either a statement of reasons why Contractor in good faith disputes the existence of such a default or a plan acceptable to MSR (in its sole discretion) to correct the alleged default, Contractor shall default in the timely performance of any of its obligations under the Contract and such default shall continue for a period of three (3) days after written notice from the Trust specifying the occurrence, omission or failure giving rise to such default, or if in the opinion of the Trust, by reason of the nature of such default, such default cannot be cured within such three (3) day period and the Contractor has not promptly prosecuted the curing of such default; (c) any representation or warranty made or deemed to have been made under the Contract by the Contractor shall prove to be untrue in any material respect; or (d) the Contractor shall make a general assignment for the benefit of its creditors, or a receiver or trustee shall have been appointed on account of Contractor’s insolvency, or Contractor otherwise shall be or become insolvent, or an order for relief shall have been entered against Contractor under Chapter 7 or Chapter 11 of Title 11 of the United States Bankruptcy Code. In addition to any other remedies or claims that the Trust may have with respect to such representation or such default, the Trust may terminate the Contract immediately upon three (3) days’ written notice to the Contractor. In the event of such terminationa default, MSR shall have the Trust, right to terminate this Mining Contract for cause without waiving liability of any such remedy or claims, kind to Contractor other than payment for Work previously completed (including consequential damages) services, material and equipment for which Contractor has executed written contracts, it being understood that all such material and equipment covered by such contracts shall pay become the property of MSR), and MSR shall have the right if it so desires to take over the Work of the Contractor that in full, and exclude the Contractor from any further participation in the Work covered by this Mining Contract; or, at its option MSR may take over such portion of the fee Work as MSR shall deem to be in the best interest of MSR, and reimbursable costsrequire the Contractor to continue with the remaining portions of the Work. Whichever method MSR might elect to pursue, not paid MSR agrees to complete the Work to the Contractorbest of its ability and in the most economical manner available to it at the time. Any costs incurred by MSR in performing any such portion of the Work covered by this Mining Contract shall be charged against any payments due or to become due to Contractor under the terms of this Mining Contract, commensurate with those Services actually and satisfactorily performed in the event the total amount due or to become due to Contractor under the terms of this Mining Contract shall be insufficient to cover the costs incurred by MSR in completing the Work, then the Contractor up and its sureties and/or insurers, if any, shall be liable to MSR for the date difference. If Contractor timely provides notice to MSR that it disputes the existence of such terminationa default, provided, however, that the Trust shall deduct from any amounts due to the Contractor for additional costs and expenses that the Trust may incur in connection with the completion of the Services by another contractor(s) or Contractor(s). The Contractor agrees to cause any agreement or contract entered into by the Contractor with any Subcontractors to contain a termination for default clause consistent with the provisions of this Subsection 5.Articles 25 and 26 shall apply, although the termination shall take effect immediately. -------------------------------------------------------------------------------- H-43

Default by Contractor. Any one or more of the following shall constitute an event of default (“Event of Default”) by Contractor hereunder: a The Trust may terminate the Contract for cause, including: (a) a material breach by Contractor of any covenant warranty or representation contained herein; b The failure of Contractor to perform or observe any term, provision, covenant, agreement or condition contained herein or in the Contract; (b) if the Contractor shall default in the timely performance of any of its obligations under the other Contract Documents and the continuance of such default shall continue failure for a period of three seven (37) days after following written notice thereof from the Trust specifying the occurrenceCity to Contractor, omission or failure giving rise to such default, or except that if in the opinion of the Trust, by reason of the nature of the particular failure on the part of Contractor is such defaultthat, such default by its nature, cannot be cured within cured, the City shall not be required to give Contractor notice of such three (3) day period failure, and such failure shall constitute an Event of Default immediately upon its occurrence; c The insolvency of Contractor; d The appointment of a receiver of Contractor, or of all or any substantial part of its property, and the Contractor has not promptly prosecuted the curing failure of such default; (c) any representation or warranty made or deemed to have been made under the Contract by the Contractor shall prove receiver to be untrue discharged within thirty (30) days thereafter; e The admission by Contractor in any material respectwriting of its inability to pay its debts generally as they become due; or (d) the f The execution by Contractor shall make a general of an assignment for the benefit of its creditors; g The filing by or against Contractor of a petition to be adjudged a bankrupt, or a receiver petition or trustee shall have been appointed on account answer seeking reorganization or admitting the material allegations of a petition filed against it in any bankruptcy or reorganization proceeding, or the act of Contractor in instituting or voluntarily being or becoming a party to any other judicial proceeding intended to effect a discharge of the debts of Contractor, in whole or in part, or a postponement of the maturity or the collection thereof, or a suspension of any other rights or powers granted to the City herein or in any other documents executed in connection herewith; h The failure of Contractor to pay any money judgment against it before the expiration of thirty (30) days after such judgment becomes final and no longer appealable; or i The failure of any attachment, sequestration or similar proceeding against any of Contractor’s insolvencyproperty to remain undischarged or unbonded by Contractor, or Contractor otherwise shall be or become insolventundismissed, or an order for relief shall have been entered against Contractor under Chapter 7 or Chapter 11 a period of Title 11 of thirty (30) days after the United States Bankruptcy Code. In addition to any other remedies or claims that the Trust may have with respect to such representation or such default, the Trust may terminate the Contract immediately upon three (3) days’ written notice to the Contractor. In the event of such termination, the Trust, without waiving any such remedy or claims, (including consequential damages) shall pay the Contractor that portion of the fee and reimbursable costs, not paid to the Contractor, commensurate with those Services actually and satisfactorily performed by the Contractor up to the date of such termination, provided, however, that the Trust shall deduct from any amounts due to the Contractor for additional costs and expenses that the Trust may incur in connection with the completion of the Services by another contractor(s) or Contractor(s). The Contractor agrees to cause any agreement or contract entered into by the Contractor with any Subcontractors to contain a termination for default clause consistent with the provisions of this Subsection 5commencement thereof.

Default by Contractor. The Trust may terminate Each of the Contract for cause, includingfollowing events shall constitute an event of default ("Event of Default") under this Agreement: (a) a material breach 18.1.1 Contractor defaults in the payment of any covenant or agreement contained in the Contract; (b) if the Contractor shall default in the timely performance of any of its obligations sum due Owner under the Contract this Agreement and such that default shall continue for a period of three (3) days 10 Business Days after Contractor receives written notice from Owner that the Trust payment is past due; 18.1.2 Contractor (a) fails to complete the Work and satisfy the conditions precedent for Substantial Completion of a Power Block by the earlier to occur of (i) the date that is 180 Days after the Guaranteed Substantial Completion Date for that Power Block and (ii) the date upon which Contractor's obligation to pay Delay Liquidated Damages relating to that Power Block is equal to or exceeds the Delay Liquidated Damages Cap, or (b) fails to complete the Work and satisfy the conditions precedent for Final Completion within 180 Days after the Guaranteed Final Completion Date or such longer time as may be afforded to the turbine supplier under the Turbine Contracts to cure deficiencies in performance; provided, however, that if the sole cause of Contractor's failure to complete the Work or achieve Substantial Completion or Final Completion in the time specified in this Section 18.1.2, or the occurrence of the date on which Delay Liquidated Damages have accrued to the Delay Liquidated Damages Cap, is the unavailability of parts or equipment that failed during Commissioning or Performance Verification due to no fault of Contractor, and Contractor has placed such part or equipment on order and is diligently proceeding to obtain on an expedited basis such part or equipment in order to complete the Work and does complete the Work in accordance with this Agreement thereafter at the earliest practicable time, then Contractor shall have an additional 90 Days to cure such default; 18.1.3 Contractor defaults in any material respect in obtaining or maintaining the insurance required by this Agreement through the Final Completion Date; 18.1.4 Contractor defaults in any respect in the observance or performance of any other material covenant, condition, representation, warranty and/or agreement of Contractor in this Agreement and that default continues for 30 Days after Owner gives Contractor written notice specifying the occurrence, omission or failure giving rise to such default, or default and demanding that the same be remedied; provided that if in the opinion of the Trust, default by reason of the its nature of such default, such default cannot be cured within such three (3) day 30 Days and Contractor commences and diligently proceeds to cure the alleged default during that initial 30 Day period and actually completes the Contractor has cure within a reasonable period of time after the notice, the event shall not promptly prosecuted the curing be an Event of such defaultDefault; (c) any representation or warranty made or deemed to have been made 18.1.5 Contractor files a petition commencing a voluntary case under the Contract by U.S. Bankruptcy Code, or for liquidation, reorganization, or an arrangement pursuant to any other U.S. or state bankruptcy Laws, or shall be adjudicated a debtor or be declared bankrupt or insolvent under the Contractor shall prove U.S. Bankruptcy Code, or any other U.S. Federal or state Laws relating to be untrue in any material respect; or (d) the Contractor shall make bankruptcy, insolvency, winding-up, or adjustment of debts, or makes a general assignment for the benefit of its creditors, or admits in writing its inability to pay its debts generally as they become due, or if a receiver petition commencing an involuntary case under the U.S. Bankruptcy Code or an answer proposing the adjudication of Contractor as a debtor or a bankrupt or proposing its liquidation or reorganization pursuant to the Bankruptcy Code or any other U.S. federal or state bankruptcy Laws is filed in any court and Contractor consents to or acquiesces in the filing of that pleading or petition or answer is not discharged or denied within 30 Days after it is filed; or 18.1.6 A custodian, receiver, trustee shall have been appointed on account or liquidator of Contractor’s insolvency, all or substantially all of the assets or business of Contractor, or of Contractor's interest in the Facility or this Agreement is appointed in any proceeding brought against Contractor otherwise shall be or become insolventand not discharged within 90 Days after that appointment, or an order for relief if Contractor shall have been entered against consent to or acquiesces in that appointment. Owner shall give Contractor under Chapter 7 written notice of any alleged breach or Chapter 11 of Title 11 default by Contractor as soon as Owner has knowledge of the United States Bankruptcy Code. In addition to any other remedies alleged breach or claims that the Trust may have with respect to such representation or such default, or notice of the Trust may terminate the Contract immediately upon three (3) days’ written notice facts giving rise to the Contractor. In the event of such termination, the Trust, without waiving any such remedy alleged breach or claims, (including consequential damages) shall pay the Contractor that portion of the fee and reimbursable costs, not paid to the Contractor, commensurate with those Services actually and satisfactorily performed by the Contractor up to the date of such termination, provided, however, that the Trust shall deduct from any amounts due to the Contractor for additional costs and expenses that the Trust may incur in connection with the completion of the Services by another contractor(s) or Contractor(s). The Contractor agrees to cause any agreement or contract entered into by the Contractor with any Subcontractors to contain a termination for default clause consistent with the provisions of this Subsection 5default.

Default by Contractor. The Trust may terminate the Contract for cause, including: (a) a material breach of any covenant or agreement contained in the Contract; (b) if the Contractor shall default in the timely performance of any of its obligations under the Contract and such default shall continue for a period of three (3) days after written notice from the Trust specifying the occurrence, omission or failure giving rise to such default, or if in the opinion of the Trust, by reason of the nature of such default, such default cannot be cured within such three (3) day period and the Contractor has not promptly prosecuted the curing of such default; (c) any representation or warranty made or deemed to have been made under the Contract by the Contractor shall prove to be untrue in any material respect; or (d) the Contractor shall make a general assignment for the benefit of its creditors, or a receiver or trustee shall have been appointed on account of Contractor’s insolvency, or Contractor otherwise shall be or become insolvent, or an order for relief shall have been entered against Contractor under Chapter 7 or Chapter 11 of Title 11 of the United States Bankruptcy Code. In addition to any other remedies or claims that the Trust may have with respect to such representation or such default, the Trust may terminate the Contract immediately upon three (3) days’ written notice to the Contractor. In the event of such termination, the Trust, without waiving any such remedy or claims, claims (including consequential damages) ), shall pay the Contractor that portion of the fee and reimbursable costs, not paid to the Contractor, commensurate with those Services actually and satisfactorily performed by the Contractor up to the date of such termination, provided, however, that the Trust shall deduct from any amounts due to the Contractor for additional costs and expenses that the Trust may incur in connection with the completion of the Services by another contractor(s) or Contractor(s). The Contractor agrees to cause any agreement or contract entered into by the Contractor with any Subcontractors to contain a termination for default clause consistent with the provisions of this Subsection 5.