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20 <br />EL185\77\970529.v2 <br />ARTICLE V <br />CHANGE IN USE OF PROJECT; PROHIBITIONS AGAINST ASSIGNMENT AND <br />TRANSFER; INDEMNIFICATION <br />Section 5.1 Change in Use of Project. The Developer and the Company agree for <br />themselves, and their successors and assigns, they shall devote the Development Property to, and in <br />accordance with, the uses specified in this Agreement. The Developer and the Company warrant the <br />continued use of the Development Property as a facility meeting the requirements of an economic <br />development district, pursuant to the Tax Increment Act. The conversion of any portion of the Project to <br />any other use shall result in the termination of the Tax Increment District and require immediate payment <br />in full of the outstanding balance of the Purchase Price Note. <br />Section 5.2 Prohibition against Transfer of Property and Assignment of Agreement. The <br />Developer and the Company represent and agree that prior to the Termination Date of this Agreement <br />neither the Developer nor the Company shall, except for the Lease between the Company and the <br />Developer, transfer or sell in any form the Development Property or any part thereof or any interest <br />therein, or assign this Agreement or enter into any contract or agreement to do any of the same. The <br />transfer or sale in any form of the Development Property or any part thereof or any interest therein by the <br />Developer shall be an Event of Default hereunder the Developer shall pay the outstanding principal of and <br />interest on the Purchase Price Note within 30 days of such request from the City. <br />Section 5.3 Release and Indemnification Covenants. <br />(a) Except for any willful misrepresentation or willful or wanton misconduct of the <br />Indemnified Parties as hereinafter defined, and except for any breach by any of the Indemnified Parties of <br />their obligations under this Agreement, the Developer and the Company release from any covenants and <br />agree that the City and the governing body members, officers, agents, servants, and employees thereof <br />(the “Indemnified Parties”) shall not be liable for and agree to indemnify and hold harmless the <br />Indemnified Parties against any loss or damage to property or any injury to or death of any person <br />occurring at or about or resulting from any defect in the Development Property or the Project. <br />(b) Except for any willful misrepresentation or willful or wanton misconduct of the <br />Indemnified Parties, and except for any breach by any of the Indemnified Parties of their obligations <br />under this Agreement, the Developer and the Company agree to protect and defend the Indemnified <br />Parties, now and forever, and further agree to hold the aforesaid harmless from any claim, demand, suit, <br />action, or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising <br />from this Agreement, or the transactions contemplated hereby or the acquisition, construction, <br />installation, ownership, maintenance, and operation of the Development Property and the Project. <br />(c) Except for any willful misrepresentation or willful or wanton misconduct of the <br />Indemnified Parties, and except for any breach by any of the Indemnified Parties of their obligations <br />under this Agreement, the Indemnified Parties shall not be liable for any damage or injury to the persons <br />or property of the Developer or the Company or their officers, agents, servants, or employees or any other <br />person who may be on the Development Property or the Project. <br />(d) All covenants, stipulations, promises, agreements and obligations of the City contained <br />herein shall be deemed to be the covenants, stipulations, promises, agreements, and obligations of such <br />entity and not of any governing body member, officer, agent, servant, or employee of such entities in the <br />individual capacity thereof. <br />Page 249 of 327