NS-3087 - Village Specific Plan (1561 W. Sunflower Ave)

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(c) Rights of Mezzanine Lender. Any lender that makes a loan to Owner or to any entity holding an interest in Owner, direct or indirect,that is secured by a pledge of equity interests in Owner, direct or indirect, shall be entitled to all of the rights and remedies under this Section 9.1,4 that are afforded to a Mortgagee under this Agreement,(i)provided that Owner shall have provided to City written notice setting forth the name and address of any such lender,and(ii) except that such rights and remedies shall be subject and subordinate to the rights of any Mortgagee,and shall not impair any of the rights and remedies afforded any Mortgagee,hereunder. 9.1.5. Obligations of Mortgagee Under Agreement.Any Mortgagee who comes into possession of the Property, or any part thereof,pursuant to foreclosure of the mortgage or deed of trust,or deed in lieu of such foreclosure,shall take the Property-as applicable,or part thereof, subject to the terms of this Agreement,Notwithstanding any other provision of this Agreement to the contrary,no Mortgagee shall have an obligation or duty under this Agreement to perform any of an Owner's obligations or other affirmative covenants of an Owner hereunder,or to guarantee such performance; provided,however,that to the extent that any covenant to be performed by an Owner is a condition precedent to the performance of a covenant by City,the performance thereof shall continue to be a condition precedent to City's performance hereunder, and further provided that any sale,transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.5 of this Agreement. 10. MISCELLANEOUS PROVISIONS. 10.1. Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Orange County Recorder by the Clerk of the City Council against the Property within ten(10)days following Owner's receipt of the fully-executed,recordable Agreement from the City. If the parties to this Agreement or their successors in interest amend or cancel this Agreement, or if the City terminates or modifies this Agreement as provided herein for failure of the Owner to comply in good faith with the terms and conditions of this Agreement,the City Clerk shall cause notice of such action recorded with the Orange County Recorder, and in connection with any termination of this Agreement, in such form or by such recordable instrument,that will allow a reputable title company to remove the Agreement as an exception to title of the Properly (a"Termination Release"). 10.2. Entire A�zreement.This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations,understandings or ancillary covenants,undertakings or agreements that are not contained or expressly referred to herein.No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 10.3, Severability. If any term,provision, covenant or condition of this Agreement shall be determined invalid,void or unenforceable,the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement.Notwithstanding the foregoing,the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the Development Impact Fees set forth therein, are essential elements of this Agreement and City would not have entered into this Agreement but for such provisions,and therefore in the event such provisions are determined to be invalid, void or unenforceable,this entire Agreement shall be null and void and of no force and effect whatsoever. Ordinance No. NS-3087 Page 32 of 41