Developer Defaults. Each of the following events shall constitute a Developer Default under this Agreement: 10.1.1 the Developer shall fail to timely observe or perform or cause to be observed or performed any covenant, agreement, obligation, term or condition required to be observed or performed by the Developer under this Agreement (provided that if the same is also required of the Developer under the Design-Build Contract, then Section 10.1.6 below shall apply in lieu of this Section 10.1.1); 10.1.2 any representation or warranty made by the Developer herein, or the Guarantor, or in any Project Agreement shall be inaccurate or misleading in any material respect on the date made or deemed made and a material adverse effect upon the Project or the Department’s rights or obligations under the Project Agreements results therefrom; 10.1.3 the Developer shall fail to execute and deliver, or fail to cause Guarantor to execute and deliver, any Project Agreement to which it is a party thereto as and when required under this Agreement; 10.1.4 the Developer shall commence a voluntary case seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; shall seek the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Developer or any substantial part of the Developer’s assets; shall file an answer admitting the material allegations of a petition filed against the Developer in any involuntary case commenced against the Developer; shall consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case commenced against the Developer; shall make an assignment for the benefit of creditors; shall fail, be unable, or admit in writing the inability generally to pay the Developer’s debts as they become due; or shall take any action to authorize any of the foregoing, or any of the foregoing acts or events shall occur with respect to the Guarantor (but not necessarily in the same proceeding or concurrently); 10.1.5 an involuntary case shall be commenced against the Developer seeking liquidation, reorganization, dissolution, winding up, a composition or arrangement with creditors, a readjustment of debts or other relief with respect to the Developer or the Developer’s debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Developer or any substantial part of the Developer’s assets; seeking the issuance of a writ of attachment, execution, or similar process; or seeking like relief, and such involuntary case shall not be contested by the Developer in good faith or shall remain undismissed and unstayed for a period of 90 Days, or any such involuntary case or cases shall be commenced against the Guarantor (but not necessarily in the same proceeding or concurrently) and such case or cases shall not be contested by the Guarantor in good faith or shall remain undismissed and unstayed for a period of 90 days, or 10.1.6 any Event of Default by the Developer under the Design-Build Contract.
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Sources: Comprehensive Agreement
Developer Defaults. Each Any one or more of the following events shall constitute a “Developer Default under this AgreementDefault”:
10.1.1 the (i) Developer shall fail to timely observe or perform or cause pay any installment of Development Period Rent within four (4) Business Days of when due, and such failure is not cured by Developer within ten (10) Business Day after notice from Owner of Developer’s failure to pay such installment of Development Period Rent when due (and such notice of failure from Owner may be observed or performed given any covenant, agreement, obligation, term or condition required to be observed or performed by the Developer under this Agreement time after such installment is more than four (provided that if the same is also required of the Developer under the Design-Build Contract, then Section 10.1.6 below shall apply in lieu of this Section 10.1.14) Business Days late);
10.1.2 (ii) If Developer shall have failed on any representation or warranty made two separate occasions in the same Fiscal Year to pay any installment of Development Period Rent within four (4) Business Days of when due and Owner shall have provided notice thereof to Developer in accordance with Section 6.1(a)(i) above, any subsequent failure by Developer in the Developer herein, or the Guarantor, or in same Fiscal Year to pay any Project Agreement shall be inaccurate or misleading in any material respect on the date made or deemed made and a material adverse effect upon the Project or the Department’s rights or obligations under the Project Agreements results therefrom;installment of Development Period Rent within four (4) Business Days of when due; or
10.1.3 the (iii) Developer shall fail to execute pay any other amounts due hereunder within four (4) Business Days of when due and deliver, or fail such failure is not cured by Developer within ten (10) Business Days after notice from Owner of Developer’s failure to cause Guarantor to execute make such payment of such amounts when due (and deliver, such notice of failure from Owner may be given any Project Agreement to which it time after such payment is a party thereto as and when required under this Agreementmore than four (4) Business Days late);
10.1.4 the (b) a default shall occur under any Joinder and such default is not cured within any applicable notice and cure period set forth therein or, if no notice or cure periods are provided therein, within fifteen (15) days after notice from Owner;
(c) any Developer shall commence Party shall:
(1) admit in writing in a voluntary case seeking liquidation, reorganization or other relief with respect legal proceeding its inability to itself or pay its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; shall seek the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Developer or any substantial part of the Developer’s assets; shall generally as they become due;
(2) file an answer admitting the material allegations of a petition filed against the Developer in bankruptcy or a petition to take advantage of any involuntary case commenced against the Developer; shall consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case commenced against the Developer; shall insolvency act;
(3) make an assignment for the benefit of its creditors; shall fail, be unable, or admit in writing the inability generally to pay the Developer’s debts as they become due; or shall take any action to authorize any of the foregoing, or any of the foregoing acts or events shall occur with respect to the Guarantor (but not necessarily in the same proceeding or concurrently);
10.1.5 an involuntary case shall be commenced against the Developer seeking liquidation, reorganization, dissolution, winding up, a composition or arrangement with creditors, a readjustment of debts or other relief with respect (4) consent to the Developer or the Developer’s debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; seeking the appointment of a trustee, receiver, liquidator, custodian receiver of itself or other similar official of the Developer whole or any substantial part of its property; or
(5) file a petition or answer seeking reorganization or arrangement under the DeveloperUnited States bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof pertaining to debtor relief or insolvency;
(d) any Developer Party shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of such Developer Party, a receiver of such Developer Party or of the whole or substantially all of such Developer Party’s assets; seeking the issuance of a writ of attachment, executionproperty, or similar process; approving a petition filed against such Developer Party seeking reorganization or seeking like reliefarrangement of such Developer Party under the United States bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof, and such involuntary case judgment, order or decree shall not be contested discharged, vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(e) any Developer Party shall be liquidated or dissolved (except that any Guarantor may be liquidated or dissolved into another Guarantor or the Developer or so long as its assets are distributed following such liquidation or dissolution to another Guarantor or Developer);
(f) if any certification, representation or warranty made by Developer or any Guarantor herein or in any Joinder or in any report, certificate, financial statement or other instrument, agreement or document furnished to Owner shall have been false or misleading in any material respect as of the date the representation or warranty was made (or deemed remade); provided, however, that if such representation or warranty which was false or misleading in any material respect is, by its nature, curable and is not reasonably likely (during the cure period specified in this clause (f)) to have a Material Adverse Effect, and such representation and warranty was not, to Developer’s or Guarantor’s actual knowledge (as applicable), false or misleading in any material respect when made, then the same shall not constitute a Developer Default unless Developer or such Guarantor (as applicable) has not cured the same within ten (10) Business Days after receipt by Developer of notice from Owner in writing of such breach;
(g) any Permit material to the development, construction, and Opening of the Project is at any time terminated or revoked or suspended for more than thirty (30) days and such termination, revocation or suspension is not stayed pending appeal and could reasonably be expected to have a Material Adverse Effect;
(h) if Developer shall fail to observe or perform any other term, covenant or condition of this Agreement (including, but not limited to, failure to deliver a Total Hard Cost Certification as required by the terms of Section 5.1 hereof) and such failure is not cured by Developer within thirty (30) days after notice thereof from Owner, unless such failure cannot with due diligence be cured within a period of thirty (30) days, in good faith which case such failure shall not be deemed to be a Developer Default if Developer proceeds promptly and with due diligence to cure the failure and diligently completes the curing thereof within one hundred twenty (120) days after such notice from Owner; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(i) if Developer’s interest in this Agreement and/or any of the New Improvements owned by Developer shall be Transferred without Owner’s prior written consent, whether or not any such transaction is permitted with respect to the Lease, other than to a Permitted Leasehold Mortgagee in accordance with the terms of the Lease (1) to which Developer, as tenant under the Lease, has granted a Permitted Leasehold Mortgage on the Leasehold Estate (as defined in the Lease) in each case in accordance with the terms of the Lease, and (2) that has acknowledged and agreed in a writing upon which Owner shall remain undismissed be entitled to rely as an expressly identified third party beneficiary that, upon its (or its nominee’s) foreclosure upon the Leasehold Estate (or upon the consummation of any transfer in lieu of such a foreclosure), it (or such other foreclosing party or other beneficiary of any transfer in lieu of such a foreclosure) shall automatically be deemed to have accepted and unstayed assumed all of Developer’s interest and obligations under this Agreement (a “Permitted Assignment”);
(j) following commencement of the Project, if construction of the Project ceases, is abandoned, or is discontinued for a period of 90 Daysthirty (30) or more consecutive days, or other than due to Unavoidable Delays;
(k) the occurrence of any such involuntary case or cases Lease Event of Default;
(l) the occurrence of any Definitive Document Event of Default; and
(m) the failure of Developer to achieve the Milestones by the applicable Milestone Dates. No Developer Default (other than a failure to make payment of money) shall be commenced against deemed to exist under this Section 6.1 during any time the Guarantor performance or curing thereof (but not necessarily in provided an applicable cure period is expressly provided herein) is prevented by an Unavoidable Delay, provided that, upon the same proceeding cessation of the Unavoidable Delay (and any other applicable Unavoidable Delay), Developer proceeds promptly and with due diligence to perform such requirement or concurrently) cure the default (provided an applicable cure period is expressly provided herein and was available at the time the Unavoidable Delay prevented such case or cases shall not be contested by the Guarantor in good faith or shall remain undismissed and unstayed for a period of 90 days, or
10.1.6 any Event of Default by the Developer under the Design-Build Contractcure).
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