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9.22 No Subordination; Mortgagee Protection; Covenants Do Not Impair Liens. City's <br />approval of the necessary land use entitlements that authorize Developer to develop, operate, and <br />maintain the Project or to cause the development, operation and maintenance of the Project was <br />based upon Developer's obligation to provide the Affordable Units pursuant to the State Density <br />Bonus Law, City Density Bonus for Affordable Housing, and the terms and conditions of this <br />Agreement. For the Term of the Density Bonus Housing Agreement, this Agreement shall have <br />priority over any and all mortgages, deeds of trust, and other similar forms of secured financing <br />recorded against the Property or any portion thereof. Developer expressly understands and <br />acknowledges that state law requires preservation of affordability covenants in connection with <br />the approval of this density bonus project. This Agreement shall not prevent or limit Developer, <br />in Developer's reasonable discretion, from encumbering the Property or any portion thereof of or <br />any improvement thereon by any mortgage, deed of trust or other security device securing <br />financing with respect to the Property or Project and such action shall not constitute an <br />assignment of this Agreement. No violation or breach of covenants, conditions, restrictions, <br />provisions, or limitations contained in this Agreement shall defeat or render invalid or diminish <br />or in any way impair the lien or charge of any mortgage or deed of trust or security instrument. <br />9.23 Attorneys' Fees and Costs. If either Party to this Agreement commences an action <br />against the other Party to this Agreement arising out of or in connection with this Agreement, the <br />prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs <br />of investigation, and costs of suit from the losing Party. <br />9.24 Authority to Execute. The person or persons executing this Agreement on behalf <br />of each Party warrants and represents that he or she/they have the authority to execute this <br />Agreement on behalf of his or her/their corporation, partnership or business entity and warrants <br />and represents that he or she/they has/have the authority to bind the Party to the performance of <br />its obligations hereunder. <br />(Signatures on following page) <br />23 <br />9138-126780\1517029.2 <br />