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include any costs, fees, fines, charges, penalties, awards, judgments or expenses <br />(including, but not limited to legal and accounting fees and expenses) that are due <br />to or arising out of the Owner’s: (a) breach or default of this Agreement or the <br />Conditional Grant Agreement, or any Loan Document or any Senior Loan <br />Document; (b) fraudulent acts or willful misconduct; or (c) breach or default under <br />any other contract, lease or agreement pertaining to the Project. <br />(d)Owner shall provide City with annual audited <br />financial statements that demonstrate compliance with the requirements of <br />calculating Net Cash Flow, Gross Revenues, and Operating Expenses. Owner shall <br />provide the annual financial statements on or before the date that is thirty (30) days <br />after the anniversary of when the Project receives its first certificate of occupancy <br />for the Scope of Work, or when Owner commences leasing the Affordable Units <br />pursuant to this Agreement, whichever is sooner. <br />4.16 Project Financing. <br />4.16.1 City shall have the right, and may in its sole and absolute <br />discretion, to approve or disapprove any senior loan secured by a deed of trust for <br />the Project (“Senior Loan”). <br />4.16.2 Without limiting City’s approval of a Senior Loan, any loan <br />from an entity that owns, controls, or affiliated with Owner is subject to the <br />following: <br />(a)The interest rate shall not exceed the Wall Street <br />Journal Prime (WSJ) Rate in effect at the time of Owner’s agreement to such <br />interest rate. <br />(b)The lender of a Senior Loan may not foreclose on the <br />Project. <br />4.16.3 The City shall have the right, but not the obligation, to cure <br />any default on a Senior Loan prior to foreclosure on the Project. The City shall <br />have at least ninety (90) days to cure, plus such additional time as may be <br />reasonably necessary to cure, for a period of not more than one hundred eighty <br />(180) days, provided that City is diligently pursuing a cure of the default. <br />4.16.4 City shall have the right to notice of any default. <br />4.16.5 Owner covenants and warrants that it shall be responsible for <br />all operating losses on the Project during the term of the Regulatory Agreement. <br />5.TERM OF THIS AGREEMENT <br />5.1 Term. The term of this Agreement shall commence on the date a final certificate of <br />occupancy is issued for the Project and shall continue for a total period of no less than fifty-five <br />EXHIBIT 2