CONSTITUTE
ADDITIONAL SECURITY FOR THE DEBT.
(B)
UPON THE OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF
DEFAULT, LENDER MAY, IN ADDITION TO ANY AND ALL OTHER RIGHTS AND REMEDIES
AVAILABLE TO LENDER, APPLY ANY SUMS THEN HELD IN ANY OR ALL OF THE RESERVE FUNDS
ESTABLISHED HEREUNDER, IF ANY, TO THE PAYMENT OF THE DEBT IN ANY ORDER IN ITS
SOLE DISCRETION.
(C)
ANY RESERVE FUNDS ESTABLISHED HEREUNDER SHALL NOT CONSTITUTE TRUST
FUNDS AND MAY BE COMMINGLED WITH OTHER MONIES HELD BY LENDER.
(D)
ANY RESERVE FUNDS ESTABLISHED HEREUNDER SHALL BE HELD IN
INTEREST-BEARING ACCOUNTS AND ALL EARNINGS OR INTEREST ON A RESERVE FUND SHALL
BE ADDED TO AND BECOME A PART OF SUCH RESERVE FUND AND SHALL BE DISBURSED IN THE
SAME MANNER AS OTHER MONIES DEPOSITED IN SUCH RESERVE FUND.
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(E)
BORROWER SHALL NOT, WITHOUT OBTAINING THE PRIOR WRITTEN CONSENT OF
LENDER, FURTHER PLEDGE, ASSIGN OR GRANT ANY SECURITY INTEREST IN ANY RESERVE
FUND OR RELATED ACCOUNT ESTABLISHED HEREUNDER, IF ANY, OR THE MONIES DEPOSITED
THEREIN OR PERMIT ANY LIEN OR ENCUMBRANCE TO ATTACH THERETO, OR ANY LEVY TO BE
MADE THEREON, OR ANY UCC-1 FINANCING STATEMENTS, EXCEPT THOSE NAMING LENDER AS
THE SECURED PARTY, TO BE FILED WITH RESPECT THERETO.
(F)
BORROWER SHALL INDEMNIFY LENDER AND HOLD LENDER HARMLESS FROM AND
AGAINST ANY AND ALL ACTIONS, SUITS, CLAIMS, DEMANDS, LIABILITIES, LOSSES,
DAMAGES, OBLIGATIONS AND COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND
REASONABLE ATTORNEYS' FEES AND EXPENSES) ARISING FROM OR IN ANY WAY CONNECTED
WITH THE RESERVE FUNDS OR THE RELATED ACCOUNTS ESTABLISHED HEREUNDER, IF ANY, OR
THE PERFORMANCE OF THE OBLIGATIONS FOR WHICH THE RESERVE FUNDS OR THE RELATED
ACCOUNTS WERE ESTABLISHED, EXCEPT TO THE EXTENT ARISING FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LENDER, ITS AGENTS OR EMPLOYEES (INCLUDING
WILLFUL BREACH OF THIS AGREEMENT). BORROWER SHALL ASSIGN TO LENDER ALL RIGHTS
AND CLAIMS BORROWER MAY HAVE AGAINST ALL PERSONS SUPPLYING LABOR, MATERIALS OR
OTHER SERVICES WHICH ARE TO BE PAID FROM OR SECURED BY SUCH RESERVE FUNDS OR THE
RELATED ACCOUNTS; PROVIDED, HOWEVER, THAT LENDER MAY NOT PURSUE ANY SUCH RIGHT
OR CLAIM UNLESS AN EVENT OF DEFAULT HAS OCCURRED AND REMAINS UNCURED.
Section 7.9
Letters of Credit.
7.9.1
Delivery of Letters of Credit.
(A)
THE AGGREGATE AMOUNT OF ANY LETTER OF CREDIT AND CASH ON DEPOSIT
WITH RESPECT TO THE DEBT SERVICE RESERVE FUNDS AT ANY TIME DURING THE TERM OF
THE LOAN SHALL AT ALL TIMES BE AT LEAST EQUAL TO THE AMOUNT WHICH BORROWER WOULD
OTHERWISE BE REQUIRED TO HAVE ON DEPOSIT PURSUANT TO SECTION 7.5 HEREOF IF
BORROWER DID NOT ELECT TO DELIVER A LETTER OF CREDIT IN LIEU THEREOF. IN THE
EVENT THAT A LETTER OF CREDIT IS DELIVERED IN LIEU OF ANY PORTION OF THE DEBT
SERVICE RESERVE FUNDS, BORROWER SHALL BE RESPONSIBLE FOR THE DIRECT PAYMENT OF
ANY DEBT SERVICE SHORTFALLS THAT WOULD OTHERWISE HAVE BEEN PAYABLE FROM SUCH
PORTION OF THE DEBT SERVICE RESERVE FUNDS. LENDER SHALL NOT DRAW ON ANY LETTER
OF