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CITY COUNCIL DRAFT <br />the City's obligations under this Agreement. The City Manager may delegate her or his powers <br />and duties under this Agreement to an authorized management level employee of the City. <br />8.21 Estoppel Certificate. Within ten (10) business days following a written request <br />by any of the Parties, the other Party shall execute and deliver to the requesting Party a statement <br />certifying that (i) either this Agreement is unmodified and in full force and effect or there have <br />been specified (date and nature) modifications to the Agreement, but it remains in full force and <br />effect as modified; and (ii) either there are no known current uncured defaults under this <br />Agreement or that the responding Party alleges that specified (date and nature) defaults exist. The <br />statement shall also provide any other reasonable information requested. The failure to timely <br />deliver this statement shall constitute a conclusive presumption that this Agreement is in full force <br />and effect without modification, except as may be represented by the requesting Party, and that <br />there are no uncured defaults in the performance of the requesting Party, except as may be <br />represented by the requesting Party. <br />8.22 No Subordination. City's approval of the necessary land use entitlements that <br />authorize Developer to develop, operate, and maintain the Project was based upon Developer's <br />obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density <br />Bonus for Affordable Housing, and the terms and conditions of this Agreement. For the duration <br />of the Term, this Agreement shall have priority over any and all mortgages, deeds of trust, and <br />other similar forms of secured financing recorded against the Property or any portion thereof, <br />unless otherwise approved by City in writing. Developer expressly understands and acknowledges <br />that state law requires preservation of Affordability Covenants in connection with the approval of <br />this density bonus project. <br />8.23 Mortgagee Protections. Notwithstanding anything to the contrary set forth <br />elsewhere herein, Developer may obtain financing for the development and construction of the <br />Project, which financing may be secured by a lien or charge of a mortgage, deed of trust, or other <br />security interest then of record made in good faith and for value (a "Mortgage") without the City's <br />consent; provided, however, that the Mortgage is subject to and subordinate to this Agreement <br />unless otherwise approved by the City in writing, in its sole and absolute discretion. Upon the <br />written request therefore by any holder of a Mortgage (a "Mortgagee"), the City shall provide <br />such Mortgagee copies of any notice of default or demand to perform provided to Developer under <br />this Agreement substantially concurrently with its delivery to Developer and agrees that such <br />Mortgagee may, but is under no obligation to, cure any such default pursuant to Section 6. In the <br />event a Mortgage exists for which City has received notice from the Mortgagee pursuant to this <br />Section, this Agreement shall not be amended, supplemented, restated or otherwise modified in <br />any manner without the prior written consent of such Mortgagee, which shall not be unreasonably <br />withheld, conditioned, or delayed. The City's rights pursuant to Section 6 shall be superior to, but <br />shall not render invalid, any mortgage or deed of trust recorded against the Property or any portion <br />thereof, including without limitation, any Affordable Unit. Notwithstanding any other provision <br />in this Agreement to the contrary, this Agreement shall not diminish or affect the rights of the <br />California Housing Finance Agency ("Ca1HFA"), HUD, the Federal National Mortgage <br />Association ("FNMA"), or the Veterans Administration ("VA") under any mortgage recorded <br />against the Property in compliance with the Declaration. The City further agrees to execute and <br />deliver to Mortgagee such further and other documents as Mortgagee may reasonably require to <br />effect the purpose and intent of this Section. <br />Page 25 <br />5 53 94.0010 1 \43721567.2 <br />