37-26 Authorizing the City to Fund Its Taxable Economic Development Revenue Note, Series 2026 (Beacon Heights Project) and Approving and Authorizing Other Actions in Respect Thereto (Substitute)

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expiration of this Agreement, any failure of consideration or frustration of purpose, or whether with or without the approval of the City, any change in the tax or other laws of the United States of America, the State of Indiana, or any political subdivision of either thereof, any change in the City's legal organization or status, and regardless of the invalidity of any portion of this Agreement; and to the extent permitted by applicable law, the Borrower hereby waives the provisions of any statute or other law now or hereafter in effect impairing or conflicting with any of its obligations, covenants or agreements under this Agreement or which releases or purports to release the Borrower therefrom. Nothing in this Agreement shall be construed as a waiver by the Borrower of any rights or claims the Borrower may have against the City under this Agreement or otherwise, but any recovery upon such rights and claims shall be had from the City separately, it being the intent of this Agreement that the Borrower shall be unconditionally and absolutely obligated without right of set-off or abatement, to perform fully all of its obligations, agreements and covenants under this Agreement in all material respects for the benefit of the City. (d) Subject at all times to Section 4.3 hereof, the obligations of the Borrower to make the required payments and to perform and observe the other agreements on its part shall be absolute and unconditional,irrespective of any defense or any rights of set-off,recoupment or counterclaim it might otherwise have against the City (except for defenses and counter claims brought in good faith and excepting the defense of full payment and/or performance), and the Borrower shall pay absolutely during the term of this Agreement the payments to be made on account of the Loan and all other payments required thereunder free of any deductions and without abatement, diminution or set-off; and the Borrower: (i) will not suspend or discontinue any payments of the Loan; (ii) will perform and observe all of its other agreements contained in this Agreement; and(iii)will not terminate this Agreement for any cause,including,without limiting the generality of the foregoing, failure of the Borrower to complete the Project, the occurrence of any acts or circumstances that may constitute failure of consideration, commercial frustration of purpose, any change in the tax laws of the United States of America or of the State of Indiana or any political subdivision of either thereof, liability or obligation arising out of or connected with this Agreement. (e) Subject to receipt by the Borrower of sufficient insurance and/or condemnation proceeds, the Borrower shall be obligated to continue to pay all amounts specified herein and in the Note regardless of whether any portion of the Project is damaged, destroyed, or taken by condemnation, and there shall be no abatement of any such payments or other charges by reason of any such damage, destruction,or taking. Section 4.3. Forgiveness. Notwithstanding anything herein to the contrary, but subject to the Unavoidable Delay provisions of Section 7.12 of this Agreement, the principal of the Loan may be forgiven,in the sole discretion of the City,following the expiration of the Qualified Project Period (as defined in the Land Use Restriction Agreement); provided that, as a condition of any such forgiveness, the Borrower shall be in compliance with all of its obligations under the Land Use Restriction Agreement, the Bond Regulatory Agreement and the Development Agreement at the time of forgiveness. In the event the Loan is forgiven by the City,in its sole discretion,pursuant to this Section 4.3, it is hereby acknowledged that the consideration for the Loan is the completion of the construction, reconstruction and/or rehabilitation of the Project by the Borrower and the resulting economic benefits to the City. In the event that the Borrower abandons the Project or otherwise fails to proceed to substantially complete the Project by the Mandatory Project 9