Laserfiche WebLink
<br />-3- <br />been paid and the amount of fees due and outstanding on the date of such certification; (b) <br />stating whether or not (i) there is a continuing default by Borrower in the performance or <br />observance of any covenant, agreement or condition contained in the Development Agreement, <br />or (ii) there shall have occurred any event that, with the giving of notice or passage of time or <br />both, would become such a default, and, if so, specifying each such default or occurrence of <br />which City has knowledge; and (c) containing such other statements as reasonably requested by <br />Lender. Such statements shall be binding upon City and may be relied upon by Lender, <br />Subsequent Owner (defined below) and/or such third party specified by Lender as aforesaid. <br />3. Agreement by Borrower and City. Borrower and City hereby agree that <br />upon the occurrence of any default by Borrower under the Development Agreement during the <br />term of this Agreement or upon the occurrence of any event which would entitle City to <br />terminate, or cause the termination of, the Development Agreement, City shall not exercise such <br />right unless it has provided simultaneous written notice of such act or omission to Lender, and <br />until thirty (30) days (or, if thirty (30) days is not a sufficient amount of time to cure such <br />default, and provided that Lender has commenced curing such default (including, but not limited <br />to, by commencing foreclosure proceedings), such longer period of time that Lender requires to <br />cure such default (provided that Lender continues to pursue such cure)) shall have elapsed <br />following the later of (x) the giving of such notice or (y) the applicable cure period available to <br />Borrower under the Development Agreement, during which period Lender may cure any such <br />default, and City and Borrower shall accept such action by Lender as a cure of such default. <br />Notwithstanding anything to the contrary contained herein, in no event shall Lender or any <br />Subsequent Owner, upon or after a foreclosure or other exercise of remedies on the Mortgage <br />ever be required to cure any default of Borrower under the Development Agreement, nor <br />indemnify City (regardless of what the terms and provisions of the Development Agreement <br />require) for any loss, expense or damage arising at any time out of (including on a going forward <br />basis) (i) City’s illegal or fraudulent acts or willful misconduct, (ii) City’s breach of the <br />Development Agreement or any other contract, or (iii) any consequential, punitive or liquidated <br />damages asserted by City. “Subsequent Owner” shall mean any party that becomes owner of the <br />Property (or any part thereof) as a result of a Foreclosure Event (together with any successors or <br />assigns thereof), including, without limitation, (A) Lender, (B) any purchaser of the Property (or <br />any part thereof) from Lender, (C) any purchaser of the Property (or any part thereof) at a <br />foreclosure on the Mortgage, or (D) any court appointed receiver of the Property (or any part <br />thereof). “Foreclosure Event” means: (a) foreclosure under the Mortgage, whether by judicial <br />action or pursuant to nonjudicial proceedings; (b) any other exercise by Lender of rights and <br />remedies (whether under the Mortgage or under applicable Law, including bankruptcy law) <br />under the Mortgage and/or the other Loan Documents, as a result of which a new person or entity <br />becomes the direct or indirect owner of the Property; or (c) delivery by Borrower to Lender (or <br />its designee or nominee) of a deed or other conveyance of Borrower’s interest in the Property in <br />lieu of any of the foregoing. Lender, shall have the right to retain possession of and use any <br />applicable surveys, plan, specifications and other documents provided by City or its agents. <br />4. Conflicts. City hereby agrees that, notwithstanding any provision to the <br />contrary set forth herein or in the Development Agreement, in the event of any inconsistency or <br />conflict between the terms and conditions contained in this Agreement and those contained in the <br />Development Agreement, the terms and conditions of this Agreement shall govern and control.