Common use of Failure to Perform Clause in Contracts

Failure to Perform. Contractor's failure to comply with any of the provisions of this Agreement or in the event that Contractor at any time refuses, neglects or fails to supply a sufficient number of properly skilled workmen or a sufficient quantity of materials of proper quality, (i) make prompt payment to his materialmen and or laborers or fails in any respect to properly and diligently prosecute the work covered by this Agreement, or becomes delinquent with respect to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trust, (ii) fulfill any of the provisions these General Conditions by him to be performed, or otherwise fails to perform fully any and all of the agreements herein contained, or the occurrence of any of the events set forth in Sections 12(b)(i)-(iv) below, shall constitute a default by Contractor, and Owner may, at its sole election and without notice to Contractor, take any one or more of the following remedial actions, none of which (other than subparagraph (iv) of this Paragraph 12) shall be deemed exclusive of any other: (i) Any remedy provided elsewhere in this Agreement. (ii) If Contractor fails to remedy any default within forty-eight (48) hours after receipt of written notice at the address appearing on the signature page of this Agreement or such longer period as is reasonably necessary if such breach cannot be cured within such forty-eight (48) hour time period (provided Contractor commences to cure immediately and thereafter diligently prosecutes such cure to completion), Owner may elect to terminate the Contractor's right to perform the Work in whole or in part without liability to Contractor for any Work thereafter performed by Owner or anyone else. In such event, Owner may: (1) complete the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any of Contractor's equipment and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correction, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor the reasonable value of all or a portion of the cost to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such default, including but not limited to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related to such default, or (4) pursue all alternatives under (1), (2) and (3). If Owner completes the Work, Contractor shall receive no further payment until the Work is completed. When the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all of the costs Owner incurred in completing the Work, the fifteen percent (15%) markup described above and any attorney fees incurred by Owner as a result of such breach. (iii) Owner may withhold payment of any monies due until the default has been cured. (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereof. If such sum is greater than the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paid. (vii) Any and all such other remedies as may be provided at law or in equity.

Failure to Perform. Contractor's failure to comply with any of the provisions of this Agreement or in the event that Contractor at any time refuses, neglects or fails to supply a sufficient number of properly skilled workmen or a sufficient quantity of materials of proper quality, (i) make prompt payment to his materialmen and or laborers or fails in any respect to properly and diligently prosecute the work covered by this Agreement, or becomes delinquent with respect to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trust, (ii) fulfill any of the provisions these General Conditions by him to be performed, or otherwise fails to perform fully any and all of the agreements herein contained, or the occurrence of any of the events set forth in Sections 12(b)(i)-(iv) below, shall constitute a default by Contractor, and Owner may, at its sole election and without notice to Contractor, take any one or more of the following remedial actions, none of which (other than subparagraph (iv) of this Paragraph 12) shall be deemed exclusive of any other: (i) Any remedy provided elsewhere in this Agreement. (ii) If Contractor fails to remedy any default within forty-eight (48) hours after receipt of written notice at the address appearing on the signature page of this Agreement or such longer period as is reasonably necessary if such breach cannot be cured within such forty-eight (48) hour time period (provided Contractor commences to cure immediately and thereafter diligently prosecutes such cure to completion), Owner may elect to terminate the Contractor's right to perform the Work in whole or in part without liability to Contractor for any Work thereafter performed by Owner or anyone else. In such event, Owner may: (1) complete the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any of Contractor's equipment and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correction, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor the reasonable value of all or a portion of the cost to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such default, including but not limited to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related to such default, or (4) pursue all alternatives under (1), (2) and (3). If Owner completes the Work, Contractor shall receive no further payment until the Work is completed. When the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all of the costs Owner incurred in completing the Work, the fifteen percent (15%) markup described above and any attorney fees incurred by Owner as a result of such breach. (iii) Owner may withhold payment of any monies due until the default has been cured.. Construction Management Services Agreement (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereof. If such sum is greater than the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paid. (vii) Any and all such other remedies as may be provided at law or in equity.

Failure to Perform. Contractor's failure to comply with any of the provisions of this Agreement or in the event that Contractor at any time refuses, neglects or fails to supply a sufficient number of properly skilled workmen or a sufficient quantity of materials of proper quality, (iii) make prompt payment to his materialmen and or laborers or fails in any respect to properly and diligently prosecute the work covered by this Agreement, or becomes delinquent with respect to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trust, (iiiii) fulfill any of the provisions these General Conditions by him to be performed, or otherwise fails to perform fully any and all of the agreements herein contained, or the occurrence of any of the events set forth in Sections 12(b)(i)-(iv) below, shall constitute a default by Contractor, and Owner may, at its sole election and without notice to Contractor, take any one or more of the following remedial actions, none of which (other than subparagraph (iv) of this Paragraph 12) shall be deemed exclusive of any other: (i) Any remedy provided elsewhere in this Agreement. (ii) If Contractor fails to remedy any default within forty-eight (48) hours after receipt of written notice at the address appearing on the signature page of this Agreement or such longer period as is reasonably necessary if such breach cannot be cured within such forty-eight (48) hour time period (provided Contractor commences to cure immediately and thereafter diligently prosecutes such cure to completion), Owner may elect to terminate the Contractor's right to perform the Work in whole or in part without liability to Contractor for any Work thereafter performed by Owner or anyone else. In such event, Owner may: (1) complete the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any of Contractor's equipment and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correction, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor the reasonable value of all or a portion of the cost to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such default, including but not limited to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related to such default, or (4) pursue all alternatives under (1), (2) and (3). If Owner completes the Work, Contractor shall receive no further payment until the Work is completed. When the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all of the costs Owner incurred in completing the Work, the fifteen percent (15%) markup described above and any attorney fees incurred by Owner as a result of such breach. (iii) Owner may withhold payment of any monies due until the default has been cured. (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereof. If such sum is greater than the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paid. (vii) Any and all such other remedies as may be provided at law or in equity.

Failure to Perform. Contractor's failure to comply with any of the provisions of this Agreement or in the event that Contractor at any time refuses, neglects or fails to supply a sufficient number of properly skilled workmen or a sufficient quantity of materials of proper quality, (i) make prompt payment to his materialmen and or laborers or fails in any respect to properly and diligently prosecute the work covered by this Agreement, or becomes delinquent with respect to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trust, (ii) fulfill any of the provisions these General Conditions by him to be performed, or otherwise fails to perform fully any and all of the agreements herein contained, or the occurrence of any of the events set forth in Sections 12(b)(i)-(iv) below, shall constitute a default by Contractor, and Owner may, at its sole election and without notice to Contractor, take any one or more of the following remedial actions, none of which (other than subparagraph (iv) of this Paragraph 12) shall be deemed exclusive of any other: (i) Any remedy provided elsewhere in this Agreement. (ii) If Contractor fails to remedy any default within forty-eight (48) hours after receipt of written notice at the address appearing on the signature page of this Agreement or such longer period as is reasonably necessary if such breach cannot be cured within such forty-eight (48) hour time period (provided Contractor commences to cure immediately and thereafter diligently prosecutes such cure to completion), Owner may elect to terminate the Contractor's right to perform the Work in whole or in part without liability to Contractor for any Work thereafter performed by Owner or anyone else. In such event, Owner may: (1) complete the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any of Contractor's equipment and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correction, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor the reasonable value of all or a portion of the cost to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such default, including but not limited to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related to such default, or (4) pursue all alternatives under (1), (2) and (3). If Owner completes the Work, Contractor shall receive no further payment until the Work is completed. When the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all of the costs Owner incurred in completing the Work, the fifteen percent (15%) markup described above and any attorney fees incurred by Owner as a result of such breach. (iii) Owner may withhold payment of any monies due until the default has been cured. (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereof. If such sum is greater than the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paid. (vii) Any and all such other remedies as may be provided at law or in equity.

Failure to Perform. Should the Contractor be adjudged bankrupt, or make a general assignment for the benefit of creditors, or should a petition under the Bankruptcy Act or under any other act relating to insolvency be filed by or against the Contractor's failure to comply with any , or should a receiver be appointed on account of its insolvency, or should the provisions of this Agreement or in the event that Contractor at any time refuses, neglects refuse or fails neglect to supply a sufficient number sufficiency of properly skilled workmen workers or a sufficient quantity of materials of the proper qualityquality and quantity, (i) make prompt payment to his materialmen and or laborers or fails fail in any respect to properly and diligently prosecute the work covered by this AgreementWork with promptness and diligence, or becomes delinquent with respect to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trust, (ii) fulfill any of fail in the provisions these General Conditions by him to be performed, or otherwise fails to perform fully any and all of the agreements herein contained, or the occurrence performance of any of the events set forth in Sections 12(b)(i)-(iv) belowobligations on its part herein contained, shall constitute a default by Contractor, and the Owner may, at its sole election and without notice to Contractor, take any one or more of if the following remedial actions, none of which (other than subparagraph (iv) of this Paragraph 12) shall be deemed exclusive of any other: (i) Any remedy provided elsewhere in this Agreement. (ii) If Contractor fails to remedy any cure such default within forty-eight three (483) hours days after receipt of written notice at from the address appearing on Owner's Representative, in addition to any other rights provided hereunder or otherwise by law, stop the signature page Work and/or discontinue the employment of this Agreement the Contractor hereunder and to cause the Work to be performed and completed and to deduct the cost thereof from any money due or such longer period as is reasonably necessary if such breach canthereafter to become due to the Contractor for the said Work, and to enter upon the premises and take possession of all materials, tools, and equipment of every kind whatsoever thereon, and to employ any other person or persons to finish the Work, and to provide the materials therefor; and in case of discontinuance of the employment of the Contractor, it shall not be cured within such forty-eight (48) hour time period (provided entitled to receive any further payment under this Contract and, if the expenses incurred by the Owner in finishing the Work shall exceed the unpaid balance of the amount to be paid under this Contract, the Contractor commences shall pay the difference to cure immediately and thereafter diligently prosecutes such cure to completion), Owner may elect to terminate the Owner. Upon the discontinuance of the Contractor's right to perform employment hereunder, the Work in whole Owner's Representative or in part without liability to Contractor for any Work thereafter performed by the Owner or anyone else. In such event, Owner may: (1) complete may engage the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any of Contractor's equipment subcontractors and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correction, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor the reasonable value of all or a portion of the cost suppliers to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such default, including but not limited to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related to such default, or (4) pursue all alternatives under (1), (2) and (3). If Owner completes the Work, Contractor shall receive no further payment until the Work is completed. When the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all of the costs Owner incurred in completing the Work, the fifteen percent (15%) markup described above and any attorney fees incurred by Owner as a result of such breach. (iii) Owner may withhold payment of any monies due until the default has been cured. (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereof. If such sum is greater than the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paid. (vii) Any and all such other remedies as may be provided at law or in equity.

Failure to Perform. Contractor's failure to comply with any of the provisions of this Agreement or in the event that Contractor at any time refuses, neglects or fails to supply a sufficient number of properly skilled workmen or a sufficient quantity of materials of proper quality, (i) make prompt payment to his materialmen and or laborers or fails in any respect to properly and diligently prosecute the work covered by this Agreement, or becomes delinquent with respect to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trust, (ii) fulfill any of the provisions these General Conditions by him to be performed, or otherwise If an Owner fails to perform fully any and all of obligation set forth in this Section 0, the agreements herein contained, or the occurrence Owner of any of the events set forth in Sections 12(b)(i)-(ivBenefited Property may send the non-performing Owner written notice of non-performance pursuant to the notice provisions of Section 0. If within thirty (30) below, shall constitute days of such notice the non-performing Owner fails to send the Owner sending the non-performance notice a default by Contractor, and Owner may, at its sole election and without written notice to Contractor, take any one or more of the following remedial actions, none of which (other than subparagraph (iv) of this Paragraph 12) shall be deemed exclusive of any other: either (i) Any remedy disputing the non-performance (which dispute shall be resolved by arbitration as provided elsewhere in this Agreement. herein); or (ii) If Contractor fails acknowledging such non-performance and agreeing to remedy any default within fortycommence the cure of such non-eight (48) hours after receipt of written notice at the address appearing on the signature page of this Agreement or such longer period as is reasonably necessary if such breach cannot be cured within such forty-eight (48) hour time period (provided Contractor commences to cure immediately performance and thereafter diligently prosecutes pursue such cure to completion, any such other Owner of the Benefited Property shall have the right, but not the obligation, to institute arbitration hereunder to determine whether performance is required and, if required, to compel performance. In any emergency, an Owner shall make commercially reasonable efforts to notify the non-performing Owner of the emergency and necessary performance but no written notice to a non-performing Owner pursuant to Section 0 shall be required before any other Owner of the Benefited Property shall have the right to cure such non-performance that resulted in such emergency. In the event of an emergency in which an Owner of Benefited Property cures non-performance, the performing Owner shall, at its option, have the right to seek reimbursement of the reasonable costs of performance from the non-performing Owner or the Owners in the percentages provided in Schedule 4; provided, however that if Owners whose collective Maintenance and Approval Percentage (as defined in Section 0 below) equals or exceeds fifty-one percent (51%), Owner may elect dispute that an emergency existed and object to terminate the Contractor's right to perform the Work in whole or in part without liability to Contractor for any Work thereafter performed by Owner or anyone else. In such event, Owner may: (1) complete the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any reimbursement of Contractor's equipment and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correctionperformance, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor then the reasonable value of all or a portion of the cost to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such defaultobjecting Owners may, including but shall not limited be required to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related institute arbitration as provided herein in which the performing Owner must demonstrate that an emergency existed requiring it to such default, or (4) pursue all alternatives under (1), (2) and (3). If Owner completes immediately perform the Work, Contractor shall receive no further payment until the Work work for which reimbursement is completed. When the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all of the costs Owner incurred in completing the Work, the fifteen percent (15%) markup described above and any attorney fees incurred by Owner as a result of such breachsought. (iii) Owner may withhold payment of any monies due until the default has been cured. (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereof. If such sum is greater than the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paid. (vii) Any and all such other remedies as may be provided at law or in equity.

Failure to Perform. Contractor(a) If Seller is unable to give title or deliver possession of the Assets, all as herein stipulated, or if, at the Closing, the Assets do not conform with the provisions hereof or any other condition to Buyer's failure obligation to comply with purchase the Assets is not satisfied, then Seller shall use its good faith efforts and due diligence to remove any defects in title or to deliver possession as provided herein or to make the Assets conform to the provisions hereof or to satisfy such closing conditions, as the case may be, and the Closing Date, at Buyer's option, shall be postponed for a period of up to thirty (30) days. If at the expiration of the extended ▇▇▇▇ ▇▇▇▇▇▇ shall have failed to remove such defects, deliver possession or make the Assets conform or to satisfy such closing conditions, as the case may be, then subject to the provisions of subsections (b) and (c) below, this Agreement may be terminated by Buyer, whereupon the Deposit shall be forthwith repaid in full to Buyer and all other obligations of the parties hereto shall cease and this Agreement shall be void and without recourse to the parties hereto. (b) Buyer shall have the election, without waiving any other rights it may have, at either the original or any extended time for Closing, to accept such title as Seller can deliver to the Assets or to accept the Assets in their then condition or to waive any other obligation of Seller and to pay therefor the full Purchase Price without deduction, in which case Seller shall transfer such title; provided, however, that Buyer may use the Deposit to terminate any and all liens on the Assets held by BankBoston, as provided in BankBoston Letter. (c) In the event that Contractor at of a breach of any time refusesof Seller's agreements, neglects representations or fails to supply a sufficient number of properly skilled workmen or a sufficient quantity of materials of proper quality, (i) make prompt payment to his materialmen and or laborers or fails in any respect to properly and diligently prosecute the work covered by warranties under this Agreement, or becomes delinquent with respect Buyer shall be entitled to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trust, (ii) fulfill any of the provisions these General Conditions by him to be performed, or otherwise fails to perform fully any and all of its rights and remedies under applicable law, including, without limitation the agreements herein contained, or the occurrence right to specific performance of any of the events set forth in Sections 12(b)(i)-(iv) below, shall constitute a default by Contractor, and Owner may, at its sole election and without notice to Contractor, take any one or more of the following remedial actions, none of which (other than subparagraph (iv) of this Paragraph 12) shall be deemed exclusive of any other: (i) Any remedy provided elsewhere in this Agreement. (ii) If Contractor fails to remedy any default within forty-eight (48) hours after receipt of written notice at the address appearing on the signature page of this Agreement or such longer period as is reasonably necessary if such breach cannot be cured within such forty-eight (48) hour time period (provided Contractor commences to cure immediately and thereafter diligently prosecutes such cure to completion), Owner may elect to terminate the Contractor's right to perform the Work in whole or in part without liability to Contractor for any Work thereafter performed by Owner or anyone else. In such event, Owner may: (1) complete the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any of Contractor's equipment and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correction, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor the reasonable value of all or a portion of the cost to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such default, including but not limited to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related to such default, or (4) pursue all alternatives under (1), (2) and (3). If Owner completes the Work, Contractor shall receive no further payment until the Work is completed. When the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all of the costs Owner incurred in completing the Work, the fifteen percent (15%) markup described above and any attorney fees incurred by Owner as a result of such breach. (iii) Owner may withhold payment of any monies due until the default has been cured. (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereof. If such sum is greater than the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paid. (vii) Any and all such other remedies as may be provided at law or in equity.

Failure to Perform. Contractor's failure If, in COMMERCIAL’S opinion the SUBCONTRACTOR shall at any time (1) refuse or fail to provide sufficient properly skilled workmen or materials of the proper quality, (2) fail in any respect to prosecute the work according to the current schedule, (3) cause, by any action or omission, the stoppage or delay of or interference with the work of COMMERCIAL or of any other builder or SUBCONTRACTOR, (4) fail to comply with any of the provisions of this Agreement Subcontract or in the event that Contractor at any time refusesContract Documents, neglects (5) have an order of relief entered under the bankruptcy Code, or fails to supply make a sufficient number general assignment for the benefit of properly skilled workmen its creditors, (6) have a receiver appointed, (7) become insolvent or a sufficient quantity of materials of proper qualitydebtor in reorganization proceedings, or (8) by any other action, indicate an unwillingness or inability to perform, or continue performing, hereunder then, after serving three (3) days' written notice, unless the condition(s) specified in such notice shall have been eliminated within such three (3) days, COMMERCIAL may, at its option (i) make prompt payment without voiding the other provisions of this Subcontract and without notice to his materialmen and or laborers or fails SUBCONTRACTOR sureties, if any, take such steps as are necessary in any respect COMMERCIAL’S reasonable discretion, to properly and diligently prosecute overcome the work covered by this Agreementcondition(s), or becomes delinquent with respect in which case the SUBCONTRACTOR shall be liable to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trustCOMMERCIAL for the full cost thereof, (ii) fulfill any of terminate the provisions these General Conditions by him to be performedSubcontract for default, or otherwise fails (iii) seek specific performance of SUBCONTRACTOR obligations hereunder, it being agreed by SUBCONTRACTOR that specific performance may be necessary to perform fully any and all avoid irreparable harm to COMMERCIAL and/or Owner. In the event of the agreements herein containedtermination for default, or the occurrence of any of the events set forth in Sections 12(b)(i)-(iv) below, shall constitute a default by Contractor, and Owner COMMERCIAL may, at its sole election and without notice to Contractor, take any one or more of the following remedial actions, none of which option (other than subparagraph (iva) of this Paragraph 12) shall be deemed exclusive of any other: (i) Any remedy provided elsewhere in this Agreement. (ii) If Contractor fails to remedy any default within forty-eight (48) hours after receipt of written notice at the address appearing enter on the signature page premises and take possession, for the purpose of this Agreement or such longer period as is reasonably necessary if such breach cannot be cured within such forty-eight (48) hour time period (provided Contractor commences to cure immediately and thereafter diligently prosecutes such cure to completion)completing the work, Owner may elect to terminate the Contractor's right to perform the Work in whole or in part without liability to Contractor for any Work thereafter performed by Owner or anyone else. In such event, Owner may: (1) complete the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any of Contractor's equipment and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correction, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor the reasonable value of all materials and equipment of Subcontract, (b) require SUBCONTRACTOR to assign to COMMERCIAL any or a portion all of SUBCONTRACTOR subcontracts or purchase orders involving the cost to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such default, including but not limited to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related to such defaultProject, or (4c) pursue all alternatives under (1)either itself or through others complete the work, (2) and (3)by whatever method COMMERCIAL may deem expedient. If Owner completes the WorkIn case of termination for default, Contractor SUBCONTRACTOR shall not be entitled to receive no any further payment until the Work is completedwork shall be fully completed and accepted by Owner. When At such time, if the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all unpaid balance of the costs Owner incurred in completing price to be paid shall exceed the Work, the fifteen percent (15%) markup described above and any attorney fees reasonable expense incurred by Owner as a result of COMMERCIAL, such breach. (iii) Owner may withhold payment of any monies due until the default has been cured. (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and excess shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs COMMERCIAL to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereofSUBCONTRACTOR. If such sum is greater than amount due shall exceed such unpaid balance then SUBCONTRACTOR shall pay COMMERCIAL the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paiddifference. (vii) Any and all such other remedies as may be provided at law or in equity.

Failure to Perform. Contractor's failure to comply with any of the provisions of this Agreement or in the event that Contractor at any time refuses, neglects or fails to supply a sufficient number of properly skilled workmen or a sufficient quantity of materials of proper quality, (iii) make prompt payment to his materialmen and or laborers or fails in any respect to properly and diligently prosecute the work covered by this Agreement, or becomes delinquent with respect to his materialmen and or payment required to be made to any Health and Welfare, Pension, Vacation, Apprenticeship or other employee benefit program or trust, (iiiii) fulfill any of the provisions these General Conditions by him to be performed, or otherwise fails to perform fully any and all of the agreements herein contained, or the occurrence of any of the events set forth in Sections 12(b)(i)-(iv) below, shall constitute a default by Contractor, and Owner may, at its sole election and without notice to Contractor, take any one or more of the following remedial actions, none of which (other than subparagraph (iv) of this Paragraph 12) shall be deemed exclusive of any other: (i) Any remedy provided elsewhere in this Agreement. (ii) If Contractor fails to remedy any default within forty-eight (48) hours after receipt of written notice at the address appearing on the signature page of this Agreement or such longer period as is reasonably necessary if such breach cannot be cured within such forty-eight (48) hour time period (provided Contractor commences to cure immediately and thereafter diligently prosecutes such cure to completion), Owner may elect to terminate the Contractor's right to perform the Work in whole or in part without liability to Contractor for any Work thereafter performed by Owner or anyone else. In such event, Owner may: (1) complete the Work or correct any failures in the Work and procure such equipment, labor and materials as is necessary therefor, and in so doing use any of Contractor's equipment and consume any materials on the Job Site until it is completed, and Contractor shall pay Owner the cost of such completion or correction, plus fifteen percent (15%) of such costs to compensate Owner for overhead and administration; (2) ▇▇▇ for and recover from Contractor the reasonable value of all or a portion of the cost to complete the performance of the Work; (3) ▇▇▇ for and recover from Contractor all damages arising out of such default, including but not limited to, loss of profits and recovery of any and all costs and expenses whatsoever directly or indirectly related to such default, or (4) pursue all alternatives under (1), (2) and (3). If Owner completes the Work, Contractor shall receive no further payment until the Work is completed. When the Work is completed, Owner shall pay Contractor the amount owing on the Contract Price less all of the costs Owner incurred in completing the Work, the fifteen percent (15%) markup described above and any attorney fees incurred by Owner as a result of such breach. (iii) Owner may withhold payment of any monies due until the default has been cured.. Construction Management Services Agreement (iv) Contractor acknowledges that if Contractor breaches this Agreement by delay in commencing or completing the Work (for any reason other than a Permitted Delay), the damages Owner would suffer ("Delay Damages") would include, among other items, losses, payments, liabilities and damages resulting from additional direct costs (including such items as Job Site payroll, cost of supervision, cost of site office facilities, Job Site telephone and rental value of any equipment not being utilized in connection with the other Work being performed at the Job Site), additional overhead expenses of the main office (including such items as salaries of executives and all other personnel, rent, and utilities), increased labor and material costs, and damages Owner may be required to pay to other contractors and third parties. Contractor also acknowledges that such Delay Damages would be difficult and impracticable to ascertain. Therefore, for any day Contractor fails to commence or complete the Work required Contractor shall pay Owner, upon demand, liquidated damages of $ ______ per day for each day of delay. The parties agree that the liquidated damages amount is a fair and reasonable approximation of the Delay Damages and shall be Owner's sole and exclusive remedy on account of any such delay. Such liquidated damages may be deducted from amounts otherwise due Contractor. If the liquidated damages are not paid upon Owner's demand, and the amounts otherwise due Contractor by Owner are less than the amount of the liquidated damages, the difference shall bear interest from the date of demand at the Default Rate, until paid in full by Contractor. (v) Owner may set off the costs to complete the Work against monies due to Contractor under any other contract between Owner (or any entity owned or controlled by the Owner) and Contractor (or any entity owned or controlled by Contractor), whether such contract is in effect before or after this Agreement. (vi) Owner may pay any sums to any such persons, firms, itself or other entities to whom Contractor is obligated and to charge such sums paid to the account of Contractor without recourse by Contractor and without inquiry as to the validity of such obligation and the correctness of the amount thereof. If such sum is greater than the amount then due Contractor, the excess shall be a debt due from Contractor to Owner and shall bear interest at the Default Rate from the date due until paid. (vii) Any and all such other remedies as may be provided at law or in equity.