3biii Financing and Loan Agreement

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10 Completion Date as required by this Agreement and the Development Agreement subject to the Unavoidable Delay provisions of Section 7.12 hereof and the Force Majeure provisions of Section 6.2 of the Development Agreement, the repayment of any outstanding amount of the Loan (the “Outstanding Amount”) will be on a date not later than thirty (30) days from the date when the Department, on behalf of the City, provides written notice to the Borrower that, in its sole discretion, it has determined that the Borrower has abandoned or failed to proceed with the Project as required by this Agreement and the Development Agreement (the date of such written notice being the “Trigger Date”) subject in all respects to the rights of Borrower’s senior lenders. Interest will begin to accrue on the Outstanding Amount beginning on the Trigger Date at the Prime Rate plus three percent (3.0%) (where the “Prime Rate” shall mean the Prime Rate as published in The Wall Street Journal, and which is described as the base rate on corporate loans at large U.S. money center commercial banks, as such rate may vary from time to time, to be determined as of the Trigger Date) until the Outstanding Amount is fully paid by the Borrower. In the event The Wall Street Journal ceases to publish a Prime Rate, the City shall use a similar source to determine the Prime Rate. ARTICLE V. ADDITIONAL AGREEMENTS AND COVENANTS Section 5.1. Indemnification. The Borrower releases the City (including, but not limited to, members of the Common Council, the Economic Development Commission, and the Redevelopment Commission, and their respective attorneys, agents and employees) from, agrees that the City (including, but not limited to, members of the Common Council, the Economic Development Commission, and the Redevelopment Commission, and their respective attorneys, agents and employees) shall not be liable for, and indemnifies the City against, all actual, out of pocket liabilities, claims, costs and expenses, including reasonable attorneys’ fees and expenses, imposed upon, incurred or asserted against the Common Council, Economic Development Commission or the Redevelopment Commission, on account of: (a) any loss or damage to property or injury to or death of or loss by any person that may be occasioned by any cause whatsoever pertaining to the construction, maintenance, operation and use of the Project; and (b) any claim, action or proceeding brought with respect to the matters set forth in (a) above. In case any action or proceeding is brought against the City in respect of which indemnity may be sought hereunder, the City promptly shall give notice of that action or proceeding to the Borrower, and the Borrower upon receipt of that notice shall have the obligation and the right to assume the defense of the action or proceeding; provided, that failure of the City to give that notice shall not relieve the Borrower from any of its obligations under this Section unless that failure prejudices the defense of the action or proceeding by the Borrower. At its own expense, the City may employ separate counsel and participate in the defense. The Borrower shall not be liable for any settlement made without its consent. The indemnification set forth above is intended to and shall include the indemnification of all affected officials, directors, officers and employees of the City, the Common Council, the Economic Development Commission and the Redevelopment Commission. That indemnification is intended to and shall be enforceable by the City to the full extent permitted by law. Notwithstanding anything herein, no indemnity shall be required hereunder for damages that result from the negligence, gross negligence, fraud or willful misconduct on the part of any of the parties