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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managing member); (iii) the removal and replacement of the managing member of the Borrower in accordance with the terms of the Operating Agreement; and/or (iv) an amendment of the Operating Agreement memorializing the transfers or removal described above. In addition to the foregoing, and notwithstanding anything to the contrary contained herein or in the Note, for the avoidance of doubt, the transfer of any direct or indirect interest in the Borrower to a constituent owner of the Borrower, including, but not limited to, the managing member of the Borrower, its managers, members, partners and/or shareholders (or any affiliate of the foregoing) shall be permitted without consent of the City and shall not constitute an event of default or result in any fee. Section 7.9. Third Party Beneficiary. The Borrower acknowledges and agrees that (i) the Redevelopment Commission is hereby deemed a third-party beneficiary of this Agreement and (ii) the terms of this Agreement may be enforced by the Redevelopment Commission. Section 7.10. Governing Law. This Agreement shall be deemed a contract made under the laws of the State and for all purposes shall be governed by and construed in accordance with the laws of the State without giving effect to its conflict of laws rules. Section 7.11. Dispute Resolution. The Borrower and the City agree to use their best efforts to resolve quickly and informally any disputes that may arise under this Agreement. In the event such informal means are unsuccessful, any such disputes shall be attempted to be resolved first by mediation in accordance with the Indiana Rules of Dispute Resolution;provided,however, the City may exercise any remedy available to it in the event the Borrower fails to pay, when due, any outstanding amount of the Loan. Any litigation commenced by either of the City or the Borrower related to or arising out of this Agreement must be filed in the state courts of St. Joseph County, Indiana. The Parties further consent to the personal jurisdiction by said courts over it and hereby expressly waive,in the case of any such action,any defenses thereto based on jurisdictions, venue or forum non conveniens. Section 7.12. Unavoidable Delay. In the event that the Borrower shall be delayed, hindered in or prevented from the performance of any act required under this Agreement by reason of any unusually inclement weather,strikes,lock-outs,labor troubles,inability to procure materials which could not have been reasonably anticipated and avoided by the Borrower, failure of power to the Project for reason other than acts of the Borrower or any person or party acting by, through or under the Borrower,restrictive governmental laws or regulations, act of God, fire, earthquake, flood, explosion, terrorism, action of the elements, war (declared or undeclared), police action, invasion, insurrection, riot, mob violence, sabotage, health pandemic or epidemic, the act, failure to act or default of the City, or other causes beyond the Borrower's reasonable control, then performance of such act shall be extended for a period necessitated by such delay. Section 7.13. Subordination and No Limitation on Mortgagee or Financing Party. Any and all rights of the City and obligations and liabilities of the Borrower under this Agreement and/or relating to the Loan shall be expressly subject and subordinate to any mortgage loans or other indebtedness incurred by the Borrower with respect to the acquisition, construction, reconstruction and/or rehabilitation of the Project. Notwithstanding anything in this Agreement to the contrary,(a)no provision of this Agreement shall restrict or otherwise limit(i)any foreclosure by or other transfer of title to any mortgagee or financing party of the Project, or(ii) any transfer 14