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when the Company receives fee simple title to the Project Parcel pursuant to the MOU. The failure of City to provide the Right of Entry or the failure of City to provide such cooperation shall constitute a default of this Agreement. 2. The Company agrees to indemnify and hold City, its employees, agents, and contractors harmless from and against all cost, loss, caim, liability, damage or expense(including reasonable attorneys' fees, disbursements and court costs) arising out of any a) loss of life or personal injury or property loss or damage whatsoever which results from the undertakings of its agents, contractors or subcontractors in performing any work upon the Project Parcel or as a result of its access of the Park Parcel prior to the termination of this Agreement. The indemnity provided herein shall not apply in the event that injury or loss is caused by the negligent or intentional conduct of City, its employees, agents and contractors. 3. The Company, upon execution of this Agreement and prior to exercising its Right of Entry, shall provide to City a certificate or certificates of insurance specifying worker's compensation and employer's liability insurance in satisfaction of Indiana state requirements and commercial general liability insurance with a dollar limitation of coverage not less than a combined single limit of $1,000,000.00 per any one occurrence and Five Million Dollars ($5,000,000)for injury to or death of all persons in that occurrence for all loss,damage,cost and expense arising out of bodily injury liability and property damage liability relating to the Company's Right of Entry and discharge of its agreements and responsibilities upon the Project Parcel or the Park Parcel pursuant to the terms of this Agreement. Such insurance shall remain in force until termination of Company's Right of Entry and shall name City as an additional insured. 1 4. All disputes and matters in question between the Parties with respect to any provision of this Agreement shall be decided and settled by mutual agreement of the Parties 1 concerned or by any court of competent jurisdiction. If any Party refuses to comply with, or at any time violates or attempts to violate, any term, covenant or agreement contained in this Agreement, any other Party hereto may, by injunctive action, in addition to any other right at law or in equity, compel the defaulting Party to comply with, or refrain from violating, such term, covenant or agreement, and may, by injunctive action, compel specific performance of the obligations of the defaulting Party. In the event of any such litigation, the non-defaulting prevailing Party, as determined by the court, shall pay the fees and expenses, including attorneys' fees and court costs, of the prevailing Party. 5. This Agreement shall be construed in accordance with and governed by laws of the 1 State of Indiana. Any suit, action or proceeding arising out of, or with respect to, this Agreement or any judgment entered by any court in respect thereof shall be brought exclusively in the St. Joseph County, Indiana Circuit or Superior Court and the Parties hereto accept the exclusive jurisdiction of those courts for the purpose of any suit,action or proceeding. This Agreement shall not be assignable by any Party without the prior written consent of the other Parties. This Agreement contains the entire agreement among the Parties with regard to the subject matter hereof except as otherwise set forth in the MOU. Time is of the essence in discharging the responsibilities and obligations of the Parties hereunder and this Agreement may only be amended or modified by the prior written consent of all the Parties hereto. { 2 US.54748956.01