3biii Financing and Loan Agreement

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13 or employee of the City or the Common Council in other than his or her official capacity, and neither the members of the Common Council nor any official of the City shall be subject to any personal liability or accountability by reason of the covenants, obligations or agreements of the City contained in this Agreement. Section 7.4. Binding Effect. This Agreement shall inure to the benefit of and shall be binding in accordance with its terms upon the City, the Borrower and their respective permitted successors and assigns. This Agreement may be enforced only by the parties, their assignees and others who may, by law, stand in their respective places. Section 7.5. Amendments and Supplements. This Agreement may not be effectively amended, changed, modified, altered or terminated except as may be evidenced in a writing executed by the appropriate representatives of the City and the Borrower. Section 7.6. Execution Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same instrument. Section 7.7. Severability. If any provision of this Agreement, or any covenant, obligation or agreement contained herein is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. Section 7.8. Successors and Assigns. Whenever in this Agreement any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included and all the covenants, promises and agreements in this Agreement contained by or on behalf of the Borrower, or by or on behalf of the City, shall bind and inure to the benefit of the respective successors and assigns, whether so expressed or not. The Borrower may assign its interest in this Agreement to any affiliate of the Borrower (or any direct or indirect member of the Borrower) or any third party with the prior approval of the City, which approval shall not be unreasonably withheld, conditioned or delayed, and the Borrower may further mortgage and assign all of the Borrower's interest in this Agreement to secure mortgage loans or other indebtedness incurred by the Borrower with respect to the acquisition, construction, reconstruction, rehabilitation, equipping and improvement of the Project. The Borrower may not otherwise assign its interest in this Agreement without obtaining the prior approval of the City, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding any such assignment, the Borrower shall not be released from any liability or obligations hereunder. Notwithstanding anything to the contrary contained herein or in the Note, the following shall be permitted without consent of the City and shall not constitute an event of default or result in any fee: (i) the transfer of investor member interests in Borrower pursuant to the terms of Borrower’s First Amended and Restated Operating Agreement (“Operating Agreement”); (ii) transfer of an interest in Cinnaire Fund for Housing Limited Partnership 45 to Affiliates of Cinnaire Corporation (including, but not limited to, a transfer to a fund in which an Affiliate of Cinnaire Corporation is a manager or