Default for Non-Payment by BE. If BE fails to repay any amounts due and owing on a CDOT BE Backup Loan in accordance with the applicable CDOT BE Backup Loan Agreement, upon notice to BE and failure by BE to cure within forty-five (45) days thereof, CDOT may, at its option: (i) suspend or terminate its commitment to consider making future CDOT BE Backup Loans hereunder; (ii) require BE to engage a consultant to review and analyze BE’s operations and recommend actions regarding revising funding plans and funding of projects, changing the methods of program operations, or any other actions to increase revenues or reduce expenses, and in CDOT’s discretion, require BE to either implement such recommended actions or undertake such alternative course of action that will ensure BE’s ability to meet its payment obligations under the applicable CDOT BE Backup Loan Agreement; or (iii) take any other appropriate action available at law or in equity. Notwithstanding the foregoing, no principal or interest due on any CDOT BE Backup Loan shall be repaid except to the extent funds are available in the BE General Account for such purpose after accounting for amounts first required to be paid in accordance with the security and priority of payments set forth in the Financing Agreements, nor shall CDOT be entitled to accelerate amounts owed on any CDOT BE Backup Loan, during any time that the C-70 Note remains outstanding. Failure of BE to make a principle or interest payment on any CDOT BE Backup Loan due solely to the insufficiency of funds available in the BE General Account shall not constitute a default nor entitle CDOT to exercise remedies in respect of such CDOT BE Backup Loan Agreement. The exercise by CDOT of any of the remedies above shall not relieve BE of liability to repay any CDOT BE Backup Loan or for any damages sustained by CDOT by virtue of any breach of this Agreement by BE.
