Agmt 2006 Mercy Housing California XXXIII (4)

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carrying charges, interest, fees, taxes, assessments and escrow fees. Such excess consideration shall belong to and be paid to the Agency by the Developer and until so paid, the Agency shall have a lien on leasehold estate in the Property for such amount. The provisions of this Section 7.5.2 have been agreed upon so as to discourage land speculation by Developer; accordingly, these provisions shall be given a liberal interpretation to accomplish that end. 7.5.3 Without limiting any other remedy Agency may have under this Agreement, or under law or equity, this Agreement may be terminated by Agency if without the prior written approval of the Agency, Developer assigns or Transfers this Agreement or Developer's leasehold interest in the Property prior to the Agency's issuance of a Certificate of Completion. 7.6 Agency Option and Right of First Refusal. It shall be a condition precedent to the commencement of the term of the Ground Lease and the funding of the Loan that Developer shall grant to the Agency and shall obtain the written consent of Developer's general partner(s) and limited partner(s) to: an unsubordinated option (the "Option") and right of first refusal ("Refusal Right") to purchase all right, title and interest Developer has in the Ground Lease, the Project, and the personal property and fixtures comprising the Project or associated with the physical operation thereof pursuant to a written agreement reasonably acceptable to Agency and in accordance with all of the following terms and conditions: A. The Option shall be exercisable commencing on January 10fthe year following the last year in which Developer's limited partner(s) receive the low-income housing tax credits allocated to Developer; provided however, commencement ofthe Option exercise period shall be delayed to a date no later than the day following the end ofthe 15-year tax credit compliance period upon the reasonable request of Developer's investor limited partner(s). Agency's ability to exercise the Option shall continue to remain in effect unless and until Developer provides Agency 12 months advance written notice ("Resyndication Notice") of its intent to resyndicate the Project for the purposes of refinancing the Project with low-income housing tax credits. If Developer completes a resyndication of the Project within 12 months following delivery ofthe Resyndication Notice, then the Agency's ability to exercise the Option shall be suspended until January I of the year following the last year in which the new limited partners receive low- income housing tax credits for the Project, at which time the Option shall again be exercisable; provided however, commencement of the new Option exercise period shall be delayed to a date no later than the day following the end of the new IS-year tax credit compliance period upon the reasonable request of Developer's new investor limited partner(s). B. The Option price shall be equal to the greater ofthe following amounts: a. Debt and Taxes. An amount sufficient (i) to pay all debts secured by mortgages or deeds of trust on the Project, and (ii) to distribute to the limited partners cash proceeds equal to the taxes projected to be imposed on the limited partners as a result of the sale pursuant to the Option; or b. Fair Market Value. (i) The fair market value ofthe Project, appraised as low-income housing to the extent continuation of such use is pursuant to the Regulatory Agreement, the Ground Lease or other governmental agency regulatory agreements (the "Use Restrictions"), with any such appraisal to be made by a licensed appraiser, selected as set forth 803698-6