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<br />(h) To foreclose the LCDA Loan Note and LCDA Mortgage, or realize upon any other
<br />security securing the LCDA Loan.
<br />Section 5.04. Remedies Not Exclusive. No right or remedy by this Agreement or by any document
<br />or instrument delivered by Borrower pursuant hereto, conferred upon or reserved to the Lender shall be or
<br />is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be
<br />cumulative and in addition to any other right or remedy now or hereafter existing at law or in equity or by
<br />statute.
<br />Section 5.05. Waiver; Forbearance. Except as the Lender may hereafter otherwise agree in
<br />writing, no waiver by the Lender of any breach or default of Borrower, of any of its obligations, agreements
<br />or covenants under this Agreement shall be deemed to be a waiver of any subsequent breach of the same,
<br />or any other obligation, agreement or covenants under this Agreement, nor sha ll any forbearance by the
<br />Lender to seek a remedy for such breach be deemed a waiver of its rights and remedies with respect to such
<br />breach, nor shall the Lender be deemed to have waived any of its rights and remedies unless it be in writing
<br />and executed with the same formality as this Agreement.
<br />Section 5.06. Attorneys’ Fees. In the event either the Borrower or the Lender commences a legal
<br />action to enforce the provisions of this Agreement, the prevailing party in such action shall be entitled, as
<br />a part of said action, to recover all its costs and expenses, including reasonable attorneys' fees.
<br />
<br />Additional Provisions
<br />Notwithstanding any provisions of this Agreement, which may be construed to be apparently to the
<br />contrary, the following provisions shall apply:
<br />Section 6.01. Indemnification by Borrower. Borrower will defend, protect, indemnify and save
<br />the Lender, its agents, officers and employees harmless from and against any and all liabilities, losses,
<br />damages, costs and expenses, whether personal, property, or contractual, including reasonable attorney ’s
<br />fees, arising out of, or related to, the use, non-use, ownership, or occupancy of the Project and the
<br />construction, condition or maintenance of the Project, and from any act or negligence of Borrower, its
<br />officers, employees, servants, agents or contractors; provided, however, that nothing herein shall be
<br />construed to obligate Borrower to protect, indemnify, and save the Lender and its officers and employees
<br />harmless from and against liabilities, losses, damages, costs, expenses (including attorney’s fees) arising
<br />from the negligent or tortious acts of the Lender, or any of its agents, employees or officers. Borrower’s
<br />liability 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 under this
<br />Section shall survive the termination of this Agreement.
<br />Section 6.02. Damage, Destruction and Condemnation. If, (i) the Project or any portion thereof
<br />is destroyed (in whole or in part) or is damaged by fire or other casualty or (ii) title to or any interest in, or
<br />the temporary use of, the Project or any part thereof shall be taken under the exercise of the power of
<br />eminent domain by any governmental body or by any person, firm or corporation acting under
<br />governmental authority, and Borrower is unable to complete the Project due to fire or other casualty or
<br />condemnation, the Lender shall not be obligated to continue to disburse any LCDA Proceeds and may, at
<br />the Lender’s option, terminate this Agreement.
<br />Section 6.03. Application of Net ProceedsAll Net Proceeds shall be applied in one or more of the
<br />following ways as shall be elected by Borrower in a written notice to the Lender: To the prompt repair,
<br />restoration, modification or improvement of the Project by Borrower. Any balance of the Net Proc eeds
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