Agmt 2006 Mercy Housing California XXXIII (4)

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executing this Agreement on behalf of Agency have been duly authorized to do so. This Agreement constitutes a valid and binding obligation of Agency. 1.2.2 No Conflict. Agency's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Agency is a party or by which it is bound. 1.2.3 No Litigation or Other Proceeding. No litigation or other proceeding (whether administrative or otherwise) is outstanding or has been threatened which would prevent, hinder or delay the ability of Agency to perform its obligations under this Agreement. 1.2.4 No Bankruptcv. Agency is not the subject of a bankruptcy proceeding. 1.3 Conditions Precedent. As a condition precedent to Agency's obligation to lease the Property to Developer, Developer must satisfy the requirements set forth in this Article I and in Article III within the times set forth in the Schedule of Performance attached hereto as Exhibit D unless such time is extended by the mutual agreement of Developer and the Agency acting in the discretion of its Executive Director. 1.3.1 Financing Plan. Developer has provided to Agency a preliminary financing plan for the Project, a copy of which is attached hereto as Exhibit E. Prior to commencement of the term of the Ground Lease, Developer shall submit for Agency approval Developer's plans for financing the construction and permanent financing of the Project (hereinafter the "Financing Plan"). The Financing Plan shall indicate all sources of funds necessary to pay, when due, the estimated costs of Project development, including without limitation hard and soft construction costs, and shall be accompanied by evidence that all such funds have been firmly committed by Developer, equity investors or lending institutions, subject only to commercially reasonable conditions. The Financing Plan shall include development and operating pro formas which set out in detail Developer's plan for financing the costs of renovation and operation ofthe Project. Agency staff shall promptly review the proposed Financing Plan, and acting through the Agency's Executive Director, the Agency shall approve such plan in writing within fifteen (15) business days following receipt provided that the plan conforms to the requirements of this Article. If the Agency does not approve the Financing Plan, the Agency shall set forth its objections in writing and notify Developer ofthe reasons for its disapproval. Developer shall thereafter submit a revised Financing Plan that addresses the reasons for disapproval, and the Agency shall grant Developer a reasonable extension of the time deadlines set forth in this Agreement as required to restructure the Financing Plan, subject to the outside time limit for completion set forth in Section 5.1 below. Agency's approval ofthe Financing Plan shall be a condition precedent to Agency's obligation to lease the Property to Developer. 1.3.1.1 Tax Credit Funds. Developer anticipates that it will submit an application to the California Tax Credit Allocation Committee ("TCAC") for a preliminary reservation for 9% tax credits not later than July 2006. Upon award of a preliminary reservation from TCAC, Developer shall exercise diligent good faith efforts to obtain a funding commitment from a reputable equity investor. Procurement of a TCAC preliminary reservation and an acceptable funding commitment from equity investors for the Project shall be conditions 803698-6 5