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36 in connection with such amendments requested by Developer or its Lender, including without limitation attorneys’ fees and consultants’ fees for the review of the request and preparation of an amendment, shall be borne by the Developer. ARTICLE 5. DEFAULT, REMEDIES AND TERMINATION 5.1. Events of Default. Subject to any extensions of time by mutual consent of the Parties in writing, and subject to the provisions of Section 9.2 hereof regarding permitted delays and a Mortgagee’s right to cure pursuant to Section 8.3 hereof, any failure by either Party to perform any material term or provision of this Agreement (not including any failure by Developer to perform any term or provision of any Project Approvals) shall constitute an “Event of Default,” (i) if such defaulting Party does not cure such failure within ninety (90) days (such ninety (90) day period is not in addition to any ninety (90) day cure period under Section 3.5, if Section 3.5 is applicable) following written notice of default from the other Party, where such failure is of a nature that can be cured within such ninety (90) day period, or (ii) if such failure is not of a nature which can be cured within such ninety (90) day period, the defaulting Party does not within such ninety (90) day period commence substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence and continuity the curing of such failure. Any notice of default given hereunder shall specify in detail the nature of the failures in performance that the noticing Party claims constitutes the Event of Default, all facts constituting substantial evidence of such failure, and the manner in which such failure may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the Party charged therewith shall not be considered to be in default for purposes of (a) termination of this Agreement, (b) institution of legal proceedings with respect thereto, or (c) issuance of any approval with respect to the Project. The waiver by either Party of any default under this Agreement shall not operate as a waiver of any subsequent breach of the same or any other provision of this Agreement. 5.2. Meet and Confer. During the time periods specified in Section 5.1 for cure of a failure of performance, the Parties shall meet and confer in a timely and responsive manner, to attempt to resolve any matters prior to litigation or other action being taken, including without limitation any action in law or equity; provided, however, nothing herein shall be construed to extend the time period for this meet and confer obligation beyond the 90-day cure period referred to in Section 5.1 (even if the 90-day cure period itself is extended pursuant to Section 5.1(ii)) unless the Parties agree otherwise in writing. 5.3. Remedies and Termination. If, after notice and expiration of the cure periods and procedures set forth in Sections 5.1 and 5.2, the alleged Event of Default is not cured, the non-defaulting Party, at its option, may institute legal proceedings pursuant to Section 5.4 of this Agreement and/or terminate this Agreement pursuant to Section 5.6 herein. In the event that this Agreement is terminated