Fault of Developer. Each of the following events, if uncured after expiration of the applicable cure period, constitutes a "Developer Event of Default": (a) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 3, one or more of the conditions precedent to the City's obligation to convey the Property to the Developer; (b) The Developer refuses to accept conveyance from the City of the Property within the time periods and under the terms set forth in Article 3; (c) The Developer constructs or attempts to construct the Development in violation of Article 4; (d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence construction of the Development by the date set forth in the Schedule of Performance, or fails to commence or complete construction of the Development by the date set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager), or abandons or suspends construction of the Development prior to completion of all construction for a period of sixty (60) days after written notice by the City of such abandonment or suspension; (e) The Developer fails to comply with any obligation or requirement set forth in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement shall also be a Developer Event of Default under this Agreement; (f) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7; (g) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made; (h) A court having jurisdiction makes or enters any decree or order: (1) adjudging the Developer to be bankrupt or insolvent; (2) approving as properly filed a petition seeking reorganization of the Developer, or seeking any arrangement for the Developer, under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (3) appointing a receiver, trustee, liquidator, or assignee of the Developer, in bankruptcy or insolvency or for any of their properties; or (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i) as well; or the Developer, admits in writing its inability to pay its debts as they fall due or voluntarily submits to or files a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive; (i) The Developer assigns its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection as well) or prior to sooner sale under such sequestration, attachment, or execution; (j) The Developer voluntarily suspends its business or, the Developer is dissolved or terminated; (k) There occurs any default declared by any entity under any loan document related to any loans secured by a deed of trust on the Development or any regulatory agreement recorded against the Property, after the expiration of applicable cure periods; or (l) The Developer breaches any monetary provision of this Agreement or any monetary provision in any of the other City Documents, and the Developer fails to cure the same within 10 days of written notice thereof. (m) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in any of the other City Documents, and the Developer fails to cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possible.
Appears in 1 contract
Fault of Developer. Each of the following events, if uncured after expiration of the applicable cure period, constitutes a "“Developer Event of Default"”:
(a) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 3, one or more of the conditions precedent to the City's ’s obligation to convey the Property to the Developer;
(b) The Developer refuses to accept conveyance from the City of the Property within the time periods and under the terms set forth in Article 33 and fails to cure the default within thirty (30) days after notice of default from City or Authority;
(c) The Developer constructs or attempts fails to construct the Development in violation of Article 44 cure the default within thirty (30) days after notice of default from City or Authority;
(d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence construction of the Development by the date set forth in the Schedule of Performance, or fails to commence or complete construction of the Development by the date set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager), or abandons or suspends construction of the Development prior to completion of all construction for a period of sixty (60) days after written notice by the City of such abandonment or suspension;
(e) The Developer fails to comply with any obligation or requirement set forth construction deadlines in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Schedule of Performance.
(e) Any default by the Developer under the Regulatory Housing Agreement shall also be a Developer Event of Default under this Agreement and the Authority Loan Documents, subject to any required notice and cure period under the Housing Agreement;
(f) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7;
(g) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made;
(h) A court having jurisdiction makes or enters any decree or order: :
(1) adjudging the Developer to be bankrupt or insolvent; (2) approving as properly filed a petition seeking reorganization of the Developer, or seeking any arrangement for the Developer, under the bankruptcy law or any other applicable debtor's ’s relief law or statute of the United States or any state or other jurisdiction; (3) appointing a receiver, trustee, liquidator, or assignee of the Developer, in bankruptcy or insolvency or for any of their properties; or (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i) as well; or the Developer, admits in writing its inability to pay its debts as they fall due or voluntarily submits to or files a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive;
(i) The Developer assigns its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection as well) or prior to sooner sale under such sequestration, attachment, or execution;
(j) The Developer voluntarily suspends its business or, the Developer is dissolved or terminated;
(k) There occurs any default declared by any entity under any loan document to which City or Authority is not a party/beneficiary, and which is related to any loans secured by a deed of trust on the Development or any such deed of trust or any regulatory agreement recorded against the PropertyProperty (other than the Housing Agreement), after the expiration of applicable cure periodsperiods in the applicable documents; or
(l) The Developer breaches any monetary other provision of this Agreement and fails to cure the default within thirty (30) days after notice of default from City or Authority, or the Developer breaches any monetary other provision of any Authority Loan Documents and fails to cure the same within: (a) the cure period in the Authority Loan Documents, if any of applicable to the other City Documentsdefault; or (b) if no cure period applies, and the default is not included/described in the preceding subsections, then Developer fails to cure the same default within 10 thirty (30) days of after written notice thereoffrom Authority.
(m) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in any of the other City Documents, and the Developer fails to cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possible.
Appears in 1 contract
Fault of Developer. Each of the following events, if uncured after expiration of the applicable cure period, constitutes a "“Developer Event of Default":Default”:
(a) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 3, one or more of the conditions precedent to the City's ’s obligation to convey the Property to the Developer;
(b) The Developer refuses to accept conveyance from the City of the Property within the time periods and under the terms set forth in Article 33 and fails to cure the default within thirty (30) days after notice of default from City or Authority;
(c) The Developer constructs or attempts fails to construct the Development in violation of Article 44 cure the default within thirty (30) days after notice of default from City or Authority;
(d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence construction of the Development by the date set forth in the Schedule of Performance, or fails to commence or complete construction of the Development by the date set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager), or abandons or suspends construction of the Development prior to completion of all construction for a period of sixty (60) days after written notice by the City of such abandonment or suspension;
(e) The Developer fails to comply with any obligation or requirement set forth construction deadlines in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Schedule of Performance.
(e) Any default by the Developer under the Regulatory Housing Agreement shall also be a Developer Event of Default under this Agreement and the Authority Loan Documents, subject to any required notice and cure period under the Housing Agreement;
(f) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7;
(g) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made;
(h) A court having jurisdiction makes or enters any decree or order: :
(1) adjudging the Developer to be bankrupt or insolvent; (2) approving as properly filed a petition seeking reorganization of the Developer, or seeking any arrangement for the Developer, under the bankruptcy law or any other applicable debtor's ’s relief law or statute of the United States or any state or other jurisdiction; (3) appointing a receiver, trustee, liquidator, or assignee of the Developer, in bankruptcy or insolvency or for any of their properties; or (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i) as well; or the Developer, admits in writing its inability to pay its debts as they fall due or voluntarily submits to or files a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive;
(i) The Developer assigns its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection as well) or prior to sooner sale under such sequestration, attachment, or execution;
(j) The Developer voluntarily suspends its business or, the Developer is dissolved or terminated;
(k) There occurs any default declared by any entity under any loan document to which City or Authority is not a party/beneficiary, and which is related to any loans secured by a deed of trust on the Development or any such deed of trust or any regulatory agreement recorded against the PropertyProperty (other than the Housing Agreement), after the expiration of applicable cure periodsperiods in the applicable documents; or
(l) The Developer breaches any monetary other provision of this Agreement and fails to cure the default within thirty (30) days after notice of default from City or Authority, or the Developer breaches any monetary other provision of any Authority Loan Documents and fails to cure the same within: (a) the cure period in the Authority Loan Documents, if any of applicable to the other City Documentsdefault; or (b) if no cure period applies, and the default is not included/described in the preceding subsections, then Developer fails to cure the same default within 10 thirty (30) days of after written notice thereoffrom Authority.
(m) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in any of the other City Documents, and the Developer fails to cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possible.
Appears in 1 contract
Fault of Developer. Each of (a) Except as to events constituting a basis for termination under Section 7.2, the following events, if uncured after expiration events each constitute an Event of the Default (subject to any applicable notice and cure period, constitutes ) and a "Developer Event of Default"basis for the City to take action against Developer:
(a1) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time set forth in the Schedule of Performance and in the manner set forth in Article 32, one or more of the conditions precedent to the City's obligation to convey the Property fee interest in the properties to the Developer;Developer pursuant to this Agreement; or
(b2) The Developer refuses to accept conveyance from acquire the City of Dealership Development Parcel, the Property Adjacent Parcel or the Swap Parcel within the time periods and under the terms set forth in Article 3;; or
(c3) The Developer constructs or attempts to construct the Development Improvements in violation of Article 4;; or
(d4) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence commencement of construction of the Development Improvements by the date set forth in the Schedule of PerformanceClosing Date, or fails to commence or complete construction of the Development by Improvements within the date times set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager)Article 4, or abandons or suspends construction of the Development Improvements prior to completion of all construction for a period of sixty (60) days after written notice by the City of such abandonment or suspension;; or forth in Article 6; or
(e5) The Developer fails to comply with any obligation or requirement set forth in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement shall also be a Developer Event of Default under this Agreement;set
(f6) Developer subdivides the Dealership Development Parcel (or any portion thereof) in manner other than as allowed under Section 5.9; or
(7) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7;6; or Closing Date; or
(g8) Developer fails to transfer the Adjacent Parcel to the City on the
(9) Any representation or warranty contained in this Agreement (including those listed in Section 9.18) or in any application, financial statement, certificate, certificate or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made; or
(10) An Event of Default occurs under the Dealership Operating Covenant, including but not limited to a failure by Developer (or its transferee) to continuously operate the Improvements pursuant to the terms and conditions of the Dealership Operating Covenant for the minimum ten (10) year term thereof;
(h11) A court having jurisdiction makes shall have made or enters entered any decree or order: (1i) adjudging the Developer to be bankrupt or insolvent; : (2ii) approving as properly filed a petition seeking its reorganization of the Developer, Developer or seeking any arrangement for the Developer, Developer under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (3iii) appointing a receiver, trustee, liquidator, or assignee of the Developer, Developer in bankruptcy or insolvency or for any of their properties; or (4iv) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1i) to (4iv), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the PropertyDealership Development Parcel or Swap Parcel, in which event such lesser time period will apply under this subsection (i9) as well; or the Developer, admits Developer has admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submits submitted to or files filed a petition seeking any decree or order of the nature described in clauses (1i) to (4iv), inclusive;; or
(i12) The Developer assigns shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the PropertyDealership Development Parcel or Swap Parcel, in which event such lesser time period will shall apply under this subsection as well) or prior to sooner sale under pursuant to such sequestration, attachment, or execution;; or
(j13) The Developer voluntarily suspends its business or, the Developer is shall have been dissolved or terminated;shall have voluntarily suspended its business; or
(k14) There occurs shall occur any default declared by any entity lender under any loan document related to any loans secured by a deed of trust on the Development or any regulatory agreement recorded against the Property, after the expiration of all applicable cure periods; or
(l15) The Developer breaches any monetary provision of this Agreement or any monetary provision in any of the other City Documents, and the Developer fails to cure the same within 10 days of written notice thereof.
(m) The Developer breaches any other material non-monetary provision of this Agreement or and any material non-monetary provision in applicable cure period for such breach shall have expired.
(b) Upon the happening of any of the other above-described events, the City Documentsshall first notify Developer in writing of its purported breach, and failure or act above described, giving Developer in writing forty-five (45) days from receipt of such notice to cure, or, if cure cannot be accomplished within said forty-five (45) days, to commence to cure such breach, failure, or act. In the event Developer fails to cure the same within 30 days of written notice thereofsaid forty-five (45) days, provided that or if such cure breach is of a nature that it cannot be reasonably completed cured within forty-five (45) days, Developer fails to commence to cure within said forty-five (45) days and diligently complete such cure within a reasonable time thereafter but in 30 no event later than ninety (90) days, then such longer period approved by the City as reasonably necessary shall be afforded all of its rights at law or in equity and the right to cure exercise any or all of the breach provided following remedies:
(1) Termination of this Agreement by written notice to Developer; provided, however, that the Developer commences City's remedies pursuant to this Article 7 or any other City Document and the cure within 30 days waiver and diligentlyindemnification provisions of this Agreement that recite that they survive termination of the Term or of this Agreement shall survive such termination and remain in full force and effect;
(2) Prosecuting an action for damages or specific performance; and
(3) If the uncured default occurs prior to the issuance of a Certificate of Occupancy for the Improvements, continually, exercising the City's rights under Section 7.5 and Section 7.6; it being understood that the remedies in good faith works to effect Section 7.5 and 7.6 will automatically terminate after the issuance of a cure as soon as possibleCertificate of Occupancy for the Improvements.
Appears in 1 contract
Fault of Developer. Each of Except as to events constituting a basis for termination under Section 6.2, the following events, if uncured after expiration of the applicable cure period, constitutes events each constitute a "Developer Event of Default", only after expiration of applicable notice and cure periods, and a basis for the County to take action against the Developer:
(a) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 3the Schedule of Performance, one or more of the conditions precedent to the CityCounty's obligation to convey the Property to the Developer;; or
(b) The Developer refuses to accept conveyance from execute the City of the Property County Grant Deed within the time periods set forth in the Schedule of Performance and under the terms set forth in Article 3;4 despite the County's fulfillment of its obligations under this Agreement; or
(c) The Developer constructs or attempts to construct the Development Improvements or otherwise redevelop the Property in violation of Article 4;; or
(d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence commencement of construction of the Development Improvements by the date set forth in the Schedule of Performance, or fails to commence or complete construction of the Development Improvements, as evidenced by the date issuance of the Certificate of Completion, within the times set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager)Performance, or abandons or suspends construction of the Development Improvements prior to completion of all construction for a period of sixty thirty (6030) days after written notice by the City County of such abandonment or suspension;; unless prior to the County’s exercise of its remedies pursuant to Developer Default under this Section 6.4(d), the Developer has satisfied the precondition, commenced or completed construction, or renewed construction after a suspension; or
(e) The Developer fails to comply with any obligation or requirement set forth in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement shall also be a Developer Event of Default under this Agreement;
(f) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7;5; or
(gf) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, certificate or report submitted by the Developer to the City in connection with County pursuant to this Agreement proves to have been incorrect in any material and adverse respect when made;; or
(hg) A court having jurisdiction makes shall have made or enters entered any decree or order: order (1) adjudging the Developer to be bankrupt or insolvent; , (2) approving as properly filed a petition seeking reorganization of the Developer, Developer or seeking any arrangement for the Developer, Developer under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; , (3) appointing a receiver, trustee, liquidator, or assignee of the Developer, Developer in bankruptcy or insolvency or for any of their properties; , or (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i) as well; or the Developer, admits Developer shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submits submitted to or files filed a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive;; or
(ih) The Developer assigns shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will shall apply under this subsection (i) as well) or prior to sooner sale under pursuant to such sequestration, attachment, or execution;; or
(ji) The Developer shall have voluntarily suspends suspended its business or, if the Developer is a partnership, the partnership shall have been dissolved or terminated;
(k) There occurs any default declared by any entity under any loan document related to any loans secured by a deed of trust on the Development or any regulatory agreement recorded against the Property, after the expiration of applicable cure periods; or
(l) The Developer breaches any monetary provision of this Agreement or any monetary provision in any of the other City Documents, and the Developer fails to cure the same within 10 days of written notice thereof.
(mj) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in Agreement. Upon the happening of any of the other City Documentsabove-described events, and the County shall first notify the Developer in writing of its purported breach, failure or act above described, giving the Developer in writing forty-five (45) days from receipt of such notice to cure, or, if cure cannot be accomplished within said forty-five (45) days, to commence to cure such breach, failure, or act. In the event the Developer fails to cure the same within 30 days of written notice thereofsaid forty-five (45) days, provided that or if such cure breach is of a nature that it cannot be reasonably completed cured within forty-five (45) days, Developer fails to commence to cure within said forty-five (45) days and diligently complete such cure within a reasonable time thereafter but in 30 no event later than ninety (90) days, then such longer period approved the County shall be afforded all of its rights at law or in equity by taking any or all of the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possible.following remedies:
Appears in 1 contract
Fault of Developer. Each of Except as to events constituting a basis for termination under Section 7.1, the following events, if uncured after expiration of the applicable cure period, constitutes events each constitute a "Developer Event of Default"" and a basis for the City to take action against the Developer:
(a) The Subject to Forced Delay, Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 3, one or more of the conditions precedent to the City's obligation to convey the Property to the Developer;
(b) The Developer refuses to accept conveyance from the City of the Property within the time periods and under the terms set forth in Article 3;
(c) The Developer constructs or attempts to construct the Development in violation of Article 4;
(d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence construction of the Development by the date set forth in the Schedule of Performance, or fails to commence or complete construction of the Development by within the date times set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager)Performance, or abandons or suspends construction of the Development prior to completion of all construction for a period of sixty (60) days after written notice by the City of such abandonment or suspensionmore;
(e) The Developer fails to comply with any obligation or requirement set forth in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement shall also be a Developer Event of Default under this Agreement;
(fb) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7Section 6.9;
(gc) Developer fails to maintain insurance as required pursuant to this Agreement, and Developer fails to cure such default within thirty (30) days of receipt of notice from the City;
(d) Subject to Developer’s right to contest the following charges as provided herein, if Developer fails to pay prior to delinquency taxes or assessments due on the Property or the Development or fails to pay when due any other charge that may result in a lien on the Property or the Development, and Developer fails to cure such default within thirty (30) days of date of delinquency, but in all events upon the imposition of any such tax or other lien;
(e) A default arises under any loan secured by a mortgage, deed of trust or other security instrument recorded against the Property and remains uncured beyond any applicable cure period such that the holder of such security instrument has the right to accelerate repayment of such loan;
(f) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, certificate or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when mademade and continues to be materially adverse to the City and the Developer fails to cure such default within thirty (30) days of the date of written notice from the City of such default;
(g) If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy Law”), Developer or any manager, managing member or general partner thereof (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Developer or any general partner, managing member, or manager thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Developer or any manager, managing member or general partner thereof; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due;
(h) A court having of competent jurisdiction makes shall have made or enters entered any decree or order: order (1) adjudging the Developer to be bankrupt or insolvent; , (2) approving as properly filed a petition seeking reorganization of the Developer, Developer or seeking any arrangement for the Developer, Developer under the bankruptcy law or any other applicable debtor's ’s relief law or statute of the United States or any state or other jurisdiction; , (3) appointing a receiver, trustee, liquidator, or assignee of the Developer, Developer in bankruptcy or insolvency or for any of their its properties; , or (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i) as well; or the Developer, admits in writing its inability to pay its debts as they fall due or voluntarily submits to or files a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive;
(i) The Developer assigns shall have assigned its assets for the benefit of its creditors (other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety sixty (9060) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will shall apply under this subsection as well) or prior to any sooner sale under pursuant to such sequestration, attachment, or execution;
(j) The Developer shall have voluntarily suspends suspended its business or, the or Developer is shall have been dissolved or terminated;
(k) There occurs A default arises under the Ground Lease, the City Promissory Note or the City Deed of Trust and remains uncured beyond any default declared by any entity under any loan document related to any loans secured by a deed of trust on the Development or any regulatory agreement recorded against the Property, after the expiration of applicable notice and cure periodsperiod; or
(l) The Developer breaches defaults in the performance of any monetary provision of term, provision, covenant or agreement contained in this Agreement other than an obligation enumerated in this Section and unless a shorter cure period is specified for such default, the default continues for ten ( 10) days in the event of a monetary default or any monetary provision thirty (30) days in any the event of a nonmonetary default after the date upon which City shall have given written notice of the other City Documentsdefault to Developer; provided however, and if the default is of a nature that it cannot be cured within thirty (30) days, a Developer fails Event of Default shall not arise hereunder if Developer commences to cure the same default within 10 days of written notice thereof.
thirty (m30) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in any of the other City Documents, and the Developer fails to cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, thereafter prosecutes the curing of such default with due diligence and in good faith works to effect a cure as soon as possiblecompletion and in no event later than ninety (90) days after receipt of notice of the default. City shall have all remedies available under this Agreement or under law or equity, including, but not limited to the right to bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking to obtain any other remedy consistent with the purpose of this Agreement, and the right to proceed with any and all remedies set forth in this Agreement and the City Documents, including but not limited to the Termination of this Agreement by written notice to the Developer; termination of the Ground Lease, or Acceleration of the City Loan, provided however, the City shall not have any right to and City waives all claims against Developer for any lost profits, and punitive or consequential damages.
Appears in 1 contract
Fault of Developer. Each of Except as to events constituting a basis for termination under Section 9.2 and subject to the cure rights under Section 9.4, the following events, if uncured after expiration of the applicable cure period, constitutes events each constitute a "Developer Event of Default":" as to the Developer whose act or inaction results in the Developer Event of Default and a basis for the County to take action only against such Developer and not against the other Developer:
(a) The Failure of a Developer fails to pay all amounts due under this Agreement within the times and in the manner specified herein, following written notice by the County of such failure and ten (10) days opportunity to cure;
(b) Failure of a Developer to exercise good faith and diligent efforts to satisfy, within the time set forth in the Schedule of Performance and in the manner set forth in Article 36, one or more of the conditions precedent to the CityCounty's obligation to convey the leasehold interest in the Property to the DeveloperDeveloper pursuant to the Housing Lease;
(bc) The Failure or refusal by the Developer refuses to accept conveyance from execute the City of the Property Housing Lease within the time periods and under the terms set forth in Article 36;
(cd) The Developer constructs or attempts to construct the Development Improvements in violation of Article 4;
(d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence construction of the Development by the date set forth in the Schedule of Performance, or fails to commence or complete construction of the Development by the date set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager), or abandons or suspends construction of the Development prior to completion of all construction for a period of sixty (60) days after written notice by the City of such abandonment or suspension6;
(e) The Developer fails to comply with any obligation commence or requirement complete construction of the Improvements within the times set forth in Article 4 or Article 6, includingor abandons or suspends construction of the Improvements prior to completion of all construction;
(f) The Developer fails to duly perform, but not limited to, the Developer's failure to construct the Developmentcomply with, or observe any of the Developer's failure to rent the Affordable Units in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement shall also be a Developer Event conditions, terms, or covenants of Default under this Agreement;
(fg) There shall occur any default by the Developer declared by any lender under any loan document related to any loans, secured by a deed of trust on the Development and all cure periods provided by such loan document have expired without a remedy of the default and the default has not been waived by the lender;
(h) A Transfer by a Developer occurs, either voluntarily or involuntarily, in violation of Article 78;
(gi) Any representation or warranty by the Developer contained in this Agreement or in any application, financial statement, certificate, certificate or report submitted to the City County in connection with this Agreement proves to have been incorrect in any material and adverse respect when made;
(hj) A default occurs under the Housing Lease, the Leasehold Deed of Trust, the Promissory Note, or the Regulatory Agreement, as applicable;
(k) A court having jurisdiction makes shall have made or enters entered any decree or order: (1i) adjudging the Developer Developer, or any of the AMCAL Affiliates which are general partners or members of a Developer, to be bankrupt or insolvent; (2ii) approving as properly filed a petition seeking its reorganization of the Developer, or any of the AMCAL Affiliates that are general partners or members of a Developer, or seeking any arrangement for the Developer, or any of the AMCAL Affiliates that are general partners or members in a Developer, under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (3iii) appointing a receiver, trustee, liquidator, or assignee of the Developer, or any of the AMCAL Affiliates that are general partners or members in a Developer, in bankruptcy or insolvency or for any of their properties; or (4iv) directing the winding up or liquidation of the a Developer, if any such decree or order described in clauses (1i) to (4iv), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i) as welldays; or the Developer, admits Developer shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submits submitted to or files filed a petition seeking any decree or order of the nature described in clauses (1i) to (4iv), inclusive;
(il) The Developer assigns its Developer, or any of the AMCAL Affiliates that are general partners or members in a Developer, shall have assigned their assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety thirty (9030) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection as well) or prior to sooner sale under pursuant to such sequestration, attachment, or execution;
(jm) The Developer voluntarily suspends Developer: (i) has the operation of its business or, voluntarily or involuntarily suspended by the State of California; (ii) voluntarily stops or terminates the operation of its business; or (iii) if the Developer is dissolved a partnership, the partnership shall have the operation of the partnership or terminated;
(k) There occurs any default declared voluntarily or involuntarily dissolved, suspended or terminated by any entity under any loan document related to any loans secured by a deed the State of trust on the Development or any regulatory agreement recorded against the Property, after the expiration of applicable cure periodsCalifornia; or
(ln) The Developer breaches There shall be filed any monetary provision claim of this Agreement lien (other than liens approved in writing by the County) against the Property or any monetary provision in part thereof, or any of the other City Documentsinterest or right made appurtenant thereto, and the Developer fails continued maintenance of said claim of lien or notice to cure withhold for a period of thirty (30) days without discharge or satisfaction thereof or provision therefore (including, without limitation, the same within 10 days posting of written notice thereofbonds) satisfactory to the County.
(m) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in any of the other City Documents, and the Developer fails to cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possible.
Appears in 1 contract
Fault of Developer. Each of the The following events, if uncured after expiration of the applicable cure period, constitutes events each constitute a "Developer Event of Default"Default and a basis for the County to take action against the Developer:
(a) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 32, one or more of the conditions precedent to the CityCounty's obligation to convey the Property to the Developer;; or
(b) The Developer refuses to accept conveyance from the City County of the Property within the time periods and under the terms set forth in Article 3;; or
(c) The Developer constructs or attempts to construct the Development Improvements in violation of Article 4;; or
(d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence commencement of construction of the Development Improvements by the date set forth in the Schedule of PerformanceDevelopment Schedule, or fails to commence or complete construction of the Development Improvements by the date set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager)Development Schedule, or abandons or suspends construction of the Development Improvements prior to completion of all construction for a period of sixty (60) days after written notice by the City County of such abandonment or suspension;; or
(e) The Developer fails to comply with any obligation or requirement set forth in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement shall also be a Developer Event of Default under this Agreement;; or
(f) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7;6; or
(g) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, certificate or report submitted to the City County in connection with this Agreement proves to have been incorrect in any material and adverse respect when made;; or
(h) A court having jurisdiction makes shall have made or enters entered any decree or order:
(1) adjudging the Developer to be bankrupt or insolvent; , (2) approving as properly filed a petition seeking reorganization of the Developer, or seeking any arrangement for the Developer, under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; , (3) appointing a receiver, trustee, liquidator, or assignee of the Developer, in bankruptcy or insolvency or for any of their properties; , or (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (ih) as well; or the Developer, admits shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submits submitted to or files filed a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive;; or
(i) The Developer assigns shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will shall apply under this subsection (i) as well) or prior to sooner sale under pursuant to such sequestration, attachment, or execution;; or
(j) The Developer shall have voluntarily suspends suspended its business or, the Developer is shall have been dissolved or terminated;; or
(k) There occurs shall occur any default declared by any entity lender under any loan document related to any loans secured by a deed of trust on the Development or any regulatory agreement recorded against the PropertyDevelopment, after the expiration of applicable cure periods; or
(l) The Developer breaches any monetary other material provision of this Agreement or any monetary provision in Agreement. Upon the happening of any of the other City Documentsabove-described events, and the County shall first notify the Developer in writing of its purported breach, failure or act above described, giving the Developer forty-five (45) days from receipt of such notice to cure, or, if cure cannot be accomplished within said forty-five (45) days, to commence to cure such breach, failure, or act. In the event the Developer fails to cure within said forty-five (45) days, or if such breach is of a nature that it cannot be cured within forty-five (45) days, Developer fails to commence to cure within said forty-five (45) days and diligently complete such cure within a reasonable time thereafter but in no event later than one hundred twenty (120) days (or such longer period as the same within 10 days County in its sole discretion may allow), then the County shall be afforded all of its rights at law or in equity by taking any or all of the following remedies:
(1) Termination of this Agreement by written notice thereofto the Developer; provided, however, that the County's remedies pursuant to this Article 7 and the indemnification provisions of this Agreement shall survive termination.
(m2) The Developer breaches any other material non-monetary Prosecuting an action for damages or specific performance; and
(3) Any of the remedies specified in Sections 7.5, 7.6, 7.7, or 7.8. Notwithstanding the notice and cure periods set forth above, with respect to an Event of Default described in subsection (h), (i), or (j) above, the County may initiate enforcement action, without the provision of this Agreement any notice, or the passage of any material non-monetary provision in any of the other City Documents, and the Developer fails to cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possibleperiod.
Appears in 1 contract
Samples: Conveyance Agreement
Fault of Developer. Each of the following events, if uncured after expiration of the applicable cure period, constitutes a "Developer Event of Default", subject to notice and opportunity to cure under Section 8.5 and Force Majeure under Section 10.3:
(a) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 3, one or more of the conditions precedent to the City's obligation to convey the Property to the Developer;
(b) The Developer refuses to accept conveyance from the City of the Property within the time periods and under the terms set forth in Article 3;
(c) The Developer constructs or attempts to construct the Development in violation of Article 4;
(d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence construction Commence Construction of the Development by the date set forth in the Schedule of PerformanceDevelopment Schedule, or fails to commence or complete construction attain Substantial Completion of the Development such that the Developer is eligible for a Certificate of Completion by the date set forth in the Development Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager), or abandons or suspends construction of the Development prior to completion of all construction Substantial Completion for a period of sixty (60) days after written notice by the City of such abandonment or suspension;
(e) The Developer fails to comply with any obligation or requirement set forth in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement Covenant Limiting Density shall also be a Developer Event of Default under this Agreement;
(f) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7;
(g) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made;
(h) A court having jurisdiction makes or enters any decree or order: (1) adjudging the Developer to be bankrupt or insolvent; (2) approving as properly filed a petition seeking reorganization of the Developer, or seeking any arrangement for the Developer, under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (3) appointing a receiver, trustee, liquidator, or assignee of the Developer, in bankruptcy or insolvency or for any of their properties; or (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i) as well; or the Developer, admits in writing its inability to pay its debts as they fall due or voluntarily submits to or files a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive;
(i) The Developer assigns its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection as well) or prior to sooner sale under such sequestration, attachment, or execution;
(j) The Developer voluntarily suspends its business or, the Developer is dissolved or terminated;
(k) There occurs any default declared by any entity lender under any loan document related to any loans secured by a deed of trust on the Development or any regulatory agreement recorded against the PropertyDevelopment, after the expiration of applicable cure periods; or
(l) The Developer breaches any monetary other material provision of this Agreement or any monetary material provision in any of the other City Documents, Documents and the Developer fails to all applicable cure the same within 10 days of written notice thereofperiods have expired.
(m) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in any of the other City Documents, and the Developer fails to cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possible.
Appears in 1 contract
Fault of Developer. (a) Each of the following events, if uncured after expiration of the applicable cure period, events constitutes a "Developer Event of Default"" and a basis for the County to take action against the Developer:
(a1) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 32, one or more of the conditions precedent to the CityCounty's obligation to convey the Property to the Developer;
(b2) The Developer refuses to accept conveyance from the City County of the Property within the time periods and under the terms set forth in Article 3;
(c3) The Developer constructs or attempts to construct the Development Improvements in violation of Article 4;
(d4) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence construction of the Development Improvements by the date set forth in the Schedule of PerformanceDevelopment Schedule, or fails to commence or complete construction of the Development Improvements by the date set forth in the Development Schedule of Performance (as such dates may be extended with the prior written consent of the City ManagerDirector), or abandons or suspends construction of the Development Improvements prior to completion of all construction for a period of sixty (60) days after written notice by the City County of such abandonment or suspension;
(e5) The Developer fails to comply with any obligation or requirement set forth in Article 4 or Article 65, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units to Extremely Low Income Households and Lower Income Households in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement shall also be a Developer Event of Default under this Agreement;
(f6) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 76;
(g7) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, certificate or report submitted to the City County in connection with this Agreement proves to have been incorrect in any material and adverse respect when made;
(h) 8) A court having jurisdiction makes or enters any decree or order: :
(1i) adjudging the Developer to be bankrupt or insolvent; (2ii) approving as properly filed a petition seeking reorganization of the Developer, or seeking any arrangement for the Developer, under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (3iii) appointing a receiver, trustee, liquidator, or assignee of the Developer, in bankruptcy or insolvency or for any of their properties; or (4iv) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1i) to (4iv), inclusive, continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i9) as well; or the Developer, admits in writing its inability to pay its debts as they fall due or voluntarily submits to or files a petition seeking any decree or order of the nature described in clauses (1i) to (4iv), inclusive;
(i9) The Developer assigns its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection as well) or prior to sooner sale under pursuant to such sequestration, attachment, or execution;
(j10) The Developer voluntarily suspends its business or, the Developer is dissolved or terminated;
(k11) There occurs any default declared by any entity lender under any loan document related to any loans secured by a deed of trust on the Development or any regulatory agreement recorded against the PropertyDevelopment, after the expiration of applicable cure periods; or
(l) The Developer breaches any monetary provision of this Agreement or any monetary provision in any of the other City Documents, and the Developer fails to cure the same within 10 days of written notice thereof.
(m12) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in any of the other City Documents, County Documents and the Developer fails to all applicable cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possibleperiods have expired.
Appears in 1 contract
