Agmt15 Hamiilton & Winslow Properties, LLC - DDA

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(vii) The Developer ceases to do business as a going concern, ceases to pay its debts as they become due or admits in writing that it is unable to pay its debts as they become due, or becomes subject to any bankruptcy proceeding (except an involuntary bankruptcy proceeding dismissed within one hundred twenty (120) days after commencement), or a custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure is made with respect to, substantially all of the Developer's assets or the Developer's interest in this Agreement (unless such appointment, attachment, execution, or other seizure was involuntary and is contested with diligence and continuity and vacated and discharged within one hundred twenty (120) days); (viii) The Developer fails to obtain, maintain or replace any insurance coverage required under this Agreement within fifteen (15) business days after notice of such Default to the Developer; (ix) There is a material deviation in the work of construction or installation of the Project from the approved Project plans, without the prior written approval of the City; (x) The construction or installation of the Project does not commence by the time provided for such commencement in the Performance Schedule (Exhibit C) or is delayed or suspended for a period in excess of that permitted under Section 3.5; (xi) The Developer fails to cause any Prohibited Encumbrance to be released within sixty (60) days after notice of such encumbrance, or fails to commence the release of such Prohibited Encumbrance within the sixty (60)-day period and to diligently prosecute the same to completion. (b) Notice and Remedies. Upon the occurrence of any of the above-described events, the City shall first notify the Developer in writing of its purported breach or failure. Except for those Events of Default in which a cure period is specified, in the event the Developer does not then cure the default within thirty (30) days (or, if the default is not susceptible of cure within such thirty-day period, the Developer fails to commence the cure within such period and thereafter to prosecute the cure diligently to completion), then the City shall be entitled to any rights afforded it in law or in equity by taking any or all of the following remedies: (i)termination of this Agreement by written notice to the Developer; or (ii) seeking any other remedy available at law or in equity (including mandamus), provided, however, the City shall not be entitled to recover consequential damages or damages for lost profits. If City chooses to terminate this Agreement under paragraph (a) above, and Escrow has not closed on the conveyance of the Public Access Parcels and Sliver Parcel from City to Developer, the Escrow Agent shall return any amounts deposited by Developer in Escrow to Developer and the City shall return the remainder of any Evergreen Deposit (as defined in the Reimbursement Agreement) provided by Developer to City under the Reimbursement Agreement after deducting therefrom any expenses incurred by the City prior to such termination (it being understood and agreed that in no event shall City be required to pay for any costs related to an actual default under this Agreement by Developer), and thereafter there the parties shall have no further obligations to or liabilities against each other. ATTY/AGR/2015.146/HAMILTON-WINSLOW DDA REV:08-18-15 VR Page 31 of 40 82483.00019\9644366.16