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<br />shall any forbearance by the Lender to seek a remedy for such breach be deemed a waiver of its
<br />rights and remedies with respect to such breach, nor shall the Lender be deemed to have waived
<br />any of its rights and remedies unless it be in writing and executed with the same formality as this
<br />Agreement.
<br />Section 5.06. Attorneys' Fees. In the event either the Borrower or the Lender commences
<br />a legal action to enforce the provisions of this Agreement, the prevailing party in such action shall
<br />be entitled, as a part of said action, to recover all its costs and expenses, including reasonable
<br />attorneys' fees.
<br />Article 6
<br />Additional Provisions
<br />Notwithstanding any provisions of this Agreement, which may be construed to be
<br />apparently to the contrary, the following provisions shall apply:
<br />Section 6.01. Indemnification by Borrower. Borrower will defend, protect, indemnify
<br />and save the Lender, its agents, officers and employees harmless from and against any and all third
<br />party liabilities, losses, damages, costs and expenses, whether personal, property, or contractual,
<br />including reasonable attorney's fees, arising out of, or related to, the use, non-use, ownership, or
<br />occupancy of the Project and the construction, condition or maintenance of the Project, and from
<br />any act or negligence of Borrower, its officers, employees, servants, agents or contractors;
<br />provided, however, that nothing herein shall be construed to obligate Borrower to protect,
<br />indemnify, and save the Lender and its officers and employees harmless from and against
<br />liabilities, losses, damages, costs, expenses (including attorney's fees) arising from the negligent
<br />or tortious acts of the Lender, or any of its agents, employees or officers. Borrower's liability
<br />hereunder shall not be limited to the extent of insurance carried by or provided by Borrower or
<br />subject to any exclusions from coverage in any insurance policy. The obligations of Borrower
<br />under this Section shall survive the termination of this Agreement.
<br />Section 6.02. Damage, Destruction and Condemnation. If, (i) the Project or any portion
<br />thereof is destroyed (in whole or in part) or is damaged by fire o r other casualty or (ii) title to or
<br />any interest in, or the temporary use of, the Project or any part thereof shall be taken under the
<br />exercise of the power of eminent domain by any governmental body or by any person, firm or
<br />corporation acting under governmental authority, and Borrower is unable to complete the Project
<br />due to fire or other casualty or condemnation, at the Lender's option, the Lender may terminate
<br />this Agreement.
<br />Section 6.03. Application of Net Proceeds. All Net Proceeds shall be applied as follows:
<br />First, to the prompt repair, restoration, modification or improvement of the Project by Borrower.
<br />Any balance of the Net Proceeds remaining after such work has been completed shall be used first
<br />to repay the Other Project Financing that has priority over the TIF Loan pursuant to the
<br />Subordination Agreement, then to repay the TIF Loan, then to repay the Other Project Financing
<br />that is subordinate to the TIF Loan pursuant to the Subordination Agreement.
<br />Section 6.04. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in
<br />full the cost of any repair, restoration, modification or improvement referred to in Section 6.03
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