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<br />the Commission be required to bear the fees and costs of the Developer’s attorneys. The Parties
<br />agree that if any other provision of this Agreement, or this Agreement as a whole, is invalidated,
<br />rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by
<br />the terms of this Section 5.1, which shall survive such invalidation, nullification, or setting aside.
<br />SECTION 6. DEFAULT.
<br />6.1 Default. Any failure by either Party to perform any material term or provision of
<br />this Agreement, which failure continues uncured for a period of thirty (30) days following receipt
<br />of written notice of such failure from the other Party or for such longer period as the Commission
<br />may agree to in writing; provided, that if the failure is of such nature that it can be corrected but
<br />not within the applicable period, that failure shall not constitute a default so long as the Developer
<br />institutes curative action within the applicable period and diligently pursues that action to
<br />completion, shall constitute a default under this Agreement. Any notice given pursuant to the
<br />preceding sentence shall specify the nature of the alleged failure and, where appropriate, the
<br />manner in which said failure satisfactorily may be cured. Upon the occurrence and continuance
<br />of a default under this Agreement that continues beyond all applicable notice and cure periods, the
<br />non-defaulting Party may (a) terminate this Agreement, or (b) institute legal proceedings at law or
<br />in equity (including any action to compel specific performance) seeking remedies for such default,
<br />provided that nothing herein shall limit the rights of the Developer’s senior lenders with respect to
<br />their collateral under the applicable loan documents, and further provided that the foregoing shall
<br />not limit or impair the City’s rights to enforce the obligations of this Agreement against the
<br />Developer. If the default is cured within the notice and cure period described in this Section 6.1,
<br />then no default shall exist and the noticing Party shall take no further action. In the event that the
<br />Developer fails (a) to complete the Project substantially in accordance with the terms hereof by
<br />the Mandatory Project Completion Date, or (b) to expend the full amount of the Private Investment
<br />necessary to complete the Project by the Mandatory Project Completion Date, Developer will be
<br />considered in default, and the Developer will be required to repay the Funding Amount received
<br />in accordance with the terms of the Loan Agreement.
<br />Borrower’s investor member shall have the right, but not the obligation, to cure any default by
<br />Borrower under the loan documents, and City agrees to accept any such cure tendered by
<br />Borrower’s investor member within any applicable grace period or cure period available to
<br />Borrower.
<br />6.2 Force Majeure. Notwithstanding anything to the contrary contained in this
<br />Agreement, none of the Parties shall be deemed to be in default where delays in performance or
<br />failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor
<br />disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of terrorism,
<br />restrictions imposed or mandated by governmental entities, pandemics, epidemics, enactment of
<br />conflicting state or federal laws or regulations, new or supplemental environments regulations,
<br />contract defaults by third parties, or similar basis for excused performance which is not within the
<br />reasonable control of the Party to be excused (each, an event of “Force Majeure”). Upon the
<br />request of any of the Parties, a reasonable extension of any date or deadline set forth in this
<br />Agreement due to such cause will be granted in writing for a period necessitated by the event of
<br />Force Majeure, or longer as may be mutually agreed upon by all the Parties.
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