Common use of Performance by Either Party Clause in Contracts

Performance by Either Party. 14.1 A party shall be deemed to be in default hereunder if any of the following events occur (each of the following events to be referred to as an "Event of Default", the party in default to be referred to as the "Defaulting Party" and the party not in default to be referred to as the "Non-Defaulting Party"): (a) a party fails to make a payment as required by any provision of this Agreement including failure to pay an indemnity amount required to be paid pursuant to the terms of this Agreement (a "Payment Default"); (b) a party fails to perform any of its obligations under section 4 of this Agreement or fails to perform any other material obligation imposed upon such party under this Agreement (which, for greater certainty, shall not include obligations resulting in a Payment Default if not performed) (each such event being a " Performance Default"); or 14.2 In the event of an Event of Default, the following process shall be followed: (a) If a party claims that there has been a Payment Default or Performance Default committed by or affecting the other party, the party making the claim shall give to the party alleged to be in default a notice (hereinafter referred to as the "Notice of Default"). The Notice of Default shall specify and provide particulars of the alleged Event of Default. (b) In the event the alleged Event of Default is capable of being remedied, the party alleged to be in default shall: (i) have a cure period of thirty (30) days after receipt of the Notice of Default with respect to a Payment Default, (ii) subject to sections 14.2(b)(iii) and 14.2(c), have a cure period of Thirty (30) days after receipt of the Notice of Default with respect to a Performance Default, or (iii) if a Performance Default is such that it cannot be reasonably remedied within Thirty (30) days after receipt of the Notice of Default, have a reasonable period of time to cure the Performance Default provided that the Defaulting Party promptly commences anddiligently continues thereafter to remedy the Event of Default. (c) If before the expiry of the later of the cure period (if any) referred to in section 14.2(b) or the time to cure specified in the Notice of Default the Defaulting Party cures the Event of Default, the Default Notice shall be inoperative and the Defaulting Party shall lose no rights hereunder. 14.3 If a Notice of Default has been given and the party alleged to be in default does not cure or remedy the Event of Default in the manner contemplated by section

Performance by Either Party. 14.1 12.1 A party Party shall be deemed to be in default hereunder if any of the following events occur (each of the following events to be referred to as an "“Event of Default"”, the party Party in default to be referred to as the "“Defaulting Party" ” and the party Party not in default to be referred to as the "“Non-Defaulting defaulting Party"”): (a) a party Party fails to make a payment as required by any provision of this Agreement including failure to pay an indemnity amount required to be paid pursuant to the terms of this Agreement Section 8 (a "“Payment Default"”);; or (b) a party Party fails to perform any of its obligations under section 4 Sections 4, 5, 6 or 7 of this Agreement or fails to perform any other material obligation imposed upon such party Party under this Agreement (which, for greater certainty, shall not include obligations resulting in a Payment Default if not performed) (each such event being a " “Performance Default"”); or; 14.2 In the event of an Event of Default, the following process shall be followed: (a) 12.2 If a party Party claims that there has been a Payment Default or Performance an Event of Default committed by or affecting the other partyParty, the party making the claim Non-defaulting Party shall give to the party alleged to be in default Defaulting Party a notice (hereinafter referred to as the "“Notice of Default"”). The Notice of Default shall specify and provide particulars of the alleged Event of Default., and then: (ba) In in the event the alleged Event of Default is capable of being remedied, the party alleged to be in default shall: (i) Defaulting Party shall have a cure period of thirty fifteen (3015) calendar days after receipt of the Notice of Default with respect to a Payment Default, (ii) subject to sections 14.2(b)(iii) and 14.2(c)or, have a cure period if the Event of Thirty (30) days after receipt of the Notice of Default Default, with respect to a Performance DefaultDefault only, or (iii) if a Performance Default is such that it cannot be reasonably remedied within Thirty fifteen (3015) calendar days after receipt of the Notice of Default, have a reasonable period of time to cure the Performance Event of Default provided that the Defaulting Party promptly commences anddiligently and diligently continues thereafter to remedy the Event of Performance Default.; and (cb) If if before the expiry of the later of the cure period (if any) referred to in section 14.2(bSection 12.2(a) or the time to cure specified in the Notice of Default Default, the Defaulting Party cures the Event of Default, the Notice of Default Notice shall be inoperative and the Defaulting Party shall lose no rights hereunder. 14.3 12.3 If a Notice of Default has been given and the party Defaulting Party does not cure or remedy the Event of Default in the manner contemplated by Section 12.2(a), the Non-defaulting Party shall have the following rights and remedies with respect to a Payment Default: (a) to charge the Defaulting Party Interest with respect to the unpaid amount until it is paid, with such Interest to be calculated daily, regardless of whether the Non- defaulting Party has notified the Defaulting Party in advance of its intention to charge Interest with respect to the unpaid amount; (b) to set-off against the unpaid amount any sums due or accruing to the Defaulting Party by the Non-defaulting Party in accordance with this Agreement; and (c) to maintain an action or actions for the unpaid amount and Interest thereon on a continuing basis as the amounts become payable but are not paid by the Defaulting Party, as if the obligation to pay those amounts and the Interest thereon was a liquidated demand due and payable on the date the amounts were due to be paid, without any right or resort of the Defaulting Party to set-off or counter-claim. And any obligation to pay Interest under this Section 12.3 shall apply until the Payment Default is rectified or remedied and shall not merge into a judgment for principal and interest, or either of them. 12.4 If a Notice of Default has been given and the Party alleged to be in default does not cure or remedy the Event of Default in the manner contemplated by sectionSection 12.2(a), the Non- defaulting Party shall have the following rights and remedies with respect to a Performance Default: (a) the Non-defaulting Party shall have the right to suspend performance of its obligations under this Agreement, including the right to suspend any payment owing pursuant to this Agreement; or (b) the Non-defaulting Party may but shall not be obligated to, either directly or indirectly by engaging a third party or otherwise, as the case may be, do all such things in order to rectify such Event of Default at the sole cost and expense of the Defaulting Party. 12.5 A Non-defaulting Party may, at its discretion, exercise the remedies referenced in Sections 12.3 and 12.4 applicable to it in the alternative, concurrently or cumulatively, except where inconsistent with the express provisions contained in this Agreement and provided that in the case of a Payment Default the concurrent or cumulative exercise of remedies shall not result in duplication or a recovery on the part of the Non-defaulting Party based on an amount (excluding Interest) in excess of the Payment Default. No delay or omission by a Non-defaulting Party in exercising its rights or remedies hereunder shall operate, as a waiver of those rights or remedies or of any other right or remedy and no single or partial exercise thereof shall preclude any other or future exercise thereof or the exercise of any other right or remedy.

Performance by Either Party. 14.1 A party shall be deemed to be in default hereunder if any of the following events occur (each of the following events to be referred to as an "Event of Default", the party in default to be referred to as the "Defaulting Party" and the party not in default to be referred to as the "Non-Defaulting Party"): (a) a party fails to make a payment as required by any provision of this Agreement including failure to pay an indemnity amount required to be paid pursuant to the terms of this Agreement (a "Payment Default"); (b) a party fails to perform any of its obligations under section 4 of this Agreement or fails to perform any other material obligation imposed upon such party under this Agreement (which, for greater certainty, shall not include obligations resulting in a Payment Default if not performed) (each such event being a " "Performance Default"); or 14.2 In the event of an Event of Default, the following process shall be followed: (a) If a party claims that there has been a Payment Default or Performance Default committed by or affecting the other party, the party making the claim shall give to the party alleged to be in default a notice (hereinafter referred to as the "Notice of Default"). The Notice of Default shall specify and provide particulars of the alleged Event of Default. (b) In the event the alleged Event of Default is capable of being remedied, the party alleged to be in default shall: (i) have a cure period of thirty (30) days after receipt of the Notice of Default with respect to a Payment Default, (ii) subject to sections 14.2(b)(iii) and 14.2(c), have a cure period of Thirty (30) days after receipt of the Notice of Default with respect to a Performance Default, or (iii) if a Performance Default is such that it cannot be reasonably remedied within Thirty (30) days after receipt of the Notice of Default, have a reasonable period of time to cure the Performance Default provided that the Defaulting Party promptly commences anddiligently continues thereafter to remedy the Event of Default. (c) If before the expiry of the later of the cure period (if any) referred to in section 14.2(b) or the time to cure specified in the Notice of Default the Defaulting Party cures the Event of Default, the Default Notice shall be inoperative and the Defaulting Party shall lose no rights hereunder. 14.3 If a Notice of Default has been given and the party alleged to be in default does not cure or remedy the Event of Default in the manner contemplated by section