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.
117
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 CREDIT DELIVERED IN LIEU OF ANY PORTION OF THE DEBT SERVICE RESERVE FUNDS
UNLESS (I) BORROWER FAILS TO PAY ANY DEBT SERVICE SHORTFALL OR (II) AN EVENT OF
DEFAULT HAS OCCURRED AND IS CONTINUING.
(B)
BORROWER SHALL GIVE LENDER NOT LESS THAN FIVE (5) BUSINESS DAYS
PRIOR WRITTEN NOTICE OF BORROWER'S ELECTION TO DELIVER A LETTER OF CREDIT AND
BORROWER SHALL PAY TO LENDER ALL OF LENDER'S REASONABLE OUT-OF-POCKET COSTS AND
EXPENSES IN CONNECTION THEREWITH. LENDER SHALL BE THE BENEFICIARY OF ANY LETTER
OF CREDIT AND BORROWER SHALL NOT BE ENTITLED TO DRAW DOWN ANY SUCH LETTER OF
CREDIT FOR ANY REASON WHATSOEVER. UPON NOT LESS THAN FIVE (5) BUSINESS DAYS
PRIOR WRITTEN NOTICE TO LENDER, BORROWER MAY REPLACE A LETTER OF CREDIT WITH A
CASH DEPOSIT TO THE DEBT SERVICE RESERVE FUND. PRIOR TO THE RETURN OF A LETTER
OF CREDIT, BORROWER SHALL DEPOSIT WITH LENDER CASH IN AN AMOUNT THAT SATISFIES
THE DEBT SERVICE RESERVE FUND DEPOSIT REQUIREMENT.
7.9.2
Provisions Regarding Letters of Credit.
(A)
EACH LETTER OF CREDIT