Agmt 2006 Mercy Housing California XXXIII (4)

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d. The Agency fails to approve the Financing Plan pursuant to Section 1.3.1; e. After undertaking an inspection of the environmental conditions on, under, about and above the Property, the Developer concludes in the reasonable exercise of its discretion that the Property is or is likely to be contaminated by Hazardous Materials and, as a result of the contamination, the proposed development of the Property in accordance with this Agreement cannot be undertaken successfully without excessive financial risk to the Developer; provided, however, that this Agreement may only be terminated pursuant to this subsection ifthe Developer notifies the Agency in writing of such determination no later than sixty (60) days from the date of this Agreement. Upon the occurrence of any of the above-described events, and at the election of either Party, this Agreement may be terminated by written notice to the other Party. After termination, neither Party shall have any rights against or liability to the other Party under this Agreement, except that the indemnification provisions of Sections 4.1, 4.4.2. 5.7. 5.9. 5.14.11.1 and 11.19 shall survive such termination and remain in full force and effect. 10.2 Fault of Agency. Except as to events constituting a basis for termination under Section 10.1. and provided further that the Developer has satisfied its obligations hereunder, the following events shall constitute an Agency Event of Default: a. The Agency, without good cause, fails to convey the Property to Developer within the time and in the manner set forth in Article III. and Developer is otherwise entitled by this Agreement to such conveyance; or b. The Agency breaches any other material provision of this Agreement and fails to cure such breach within any applicable cure period. Upon the occurrence of any of the above-described events, Developer shall first notify the Agency in writing of its purported breach or failure, giving the Agency thirty (30) days from receipt of such notice to cure or, if cure cannot be accomplished within thirty (30) days, to commence to cure such breach, failure, or act. In the event the Agency does not then so cure within thirty (30) days, or if the breach or failure is of such a nature that it cannot be cured within thirty (30) days, the Agency fails to commence to cure within thirty (30) days and thereafter diligently complete such cure within a reasonable time thereafter but in no event later than one hundred twenty (120) days, then the Developer shall be afforded all of its rights at law or in equity, by taking all or any of the following remedies: (1) terminating this Agreement by delivery of written notice to Agency; and (2) prosecuting an action for specific performance. Notwithstanding anything to the contrary contained herein, in no event shall damages be awarded against City or Agency upon the occurrence of an Agency Event of Default or upon termination of this Agreement. 10.3 Fault of the Developer. Except as to events constituting a basis for termination under Section 10.1, and provided further that the Agency has satisfied its obligations hereunder, the following events in shall each constitute a Developer Event of Default: 803698-6 31