EITHER CASE, IN AN AMOUNT AT
LEAST EQUAL TO $250,000; (D) UPON REASONABLE NOTICE, THE OPPORTUNITY TO MEET
WITH SENIOR OFFICERS OF OGLETHORPE AND TO DISCUSS THE BUSINESS AND FINANCIAL
CONDITION OF OGLETHORPE; AND (E) IMMEDIATE WRITTEN NOTICE OF THE OCCURRENCE OF
ANY TRANSACTION EVENT OF DEFAULT OR TRANSACTION DEFAULT, OR ANY EVENT THAT
REQUIRES OGLETHORPE TO DELIVER QUALIFYING ADDITIONAL SECURITY PURSUANT TO
SECTION 8.8 OF THE PARTICIPATION AGREEMENT.
SECTION 2.07.
OTHER COVENANTS OF OGLETHORPE.
OGLETHORPE AGREES THAT, UNTIL THE
LATER OF THE TERMINATION OR EXPIRATION OF THE SURETY BONDS AND THE DATE ON WHICH
ALL OBLIGATIONS OWING TO BERKSHIRE UNDER THE SURETY BOND DOCUMENTS HAVE BEEN
INDEFEASIBLY PAID IN FULL IN CASH:
(A)
OGLETHORPE WILL FULFILL ANY AND ALL OBLIGATIONS
UNDERTAKEN BY IT UNDER EACH OPERATIVE DOCUMENT (OTHER THAN ITS OBLIGATION UNDER
SECTION 8.5 AND SECTION 8.6 OF THE PARTICIPATION AGREEMENT TO REPLACE THE SURETY
BONDS IF THE SURETY BONDS CEASE TO BE QUALIFYING SURETY BONDS) TO WHICH IT IS A
PARTY IN ACCORDANCE WITH THE TERMS THEREOF (AND, IN THE CASE OF THE OBLIGATIONS
SET FORTH IN SECTION 7.1 OF THE FACILITY SUBLEASE, SUBJECT TO THE ADDITIONAL
TIME PERIODS AND CONTEST RIGHTS SET FORTH IN THE PROVISOS IN SECTION 16(E) OF
THE FACILITY SUBLEASE) WITH THE SAME EFFECT AS IF SET FORTH SPECIFICALLY HEREIN;
PROVIDED THAT THIS SECTION 2.07(A) SHALL BE DEEMED
8
TO REFER TO THE OPERATIVE DOCUMENTS AS AMENDED, MODIFIED, SUPPLEMENTED OR WAIVED
FROM TIME TO TIME WITH THE CONSENT OF BERKSHIRE OR AS OTHERWISE EXPRESSLY
PERMITTED UNDER SECTION 4(A) OF THE IMPLEMENTATION AGREEMENT.
(B)
OGLETHORPE SHALL NAME BERKSHIRE AS AN "ADDITIONAL INSURED"
IN EACH POLICY OF INSURANCE CARRIED IN ACCORDANCE WITH SECTION 11 OF THE
FACILITY SUBLEASE AND FULFILL ALL OTHER OBLIGATIONS WITH RESPECT TO SUCH
INSURANCE AS IF BERKSHIRE WERE LISTED AS AN "ADDITIONAL INSURED" WITH THE OTHER
PARTIES NAMED IN SECTION 11.3 OF THE FACILITY SUBLEASE.
ARTICLE III
EVENTS OF DEFAULT; REMEDIES
SECTION 3.01.
EVENTS OF DEFAULT.
THE FOLLOWING EVENTS SHALL CONSTITUTE EVENTS
OF DEFAULT HEREUNDER:
(A)
OGLETHORPE SHALL FAIL TO PAY TO BERKSHIRE ANY AMOUNT
PAYABLE UNDER SECTION 1.03, 1.04 OR 2.01(A) HEREOF ON THE DATE WHEN DUE;
(B)
OGLETHORPE SHALL FAIL TO PAY WHEN DUE TO BERKSHIRE ANY
AMOUNT PAYABLE UNDER ANY PROVISION OF THIS AGREEMENT, OTHER THAN SECTIONS 1.03,
1.04 AND 2.01(A) HEREOF, PROVIDED THAT SUCH FAILURE CONTINUES FOR MORE THAN 30
DAYS AFTER RECEIPT BY OGLETHORPE OF NOTICE OF SUCH FAILURE TO PAY;
(C)
ANY REPRESENTATION OR WARRANTY MADE BY OGLETHORPE IN ANY
OF THE OPERATIVE DOCUMENTS, IN THE SUBORDINATED MORTGAGE, IN THIS AGREEMENT OR
ANY OF THE OTHER SURETY BOND DOCUMENTS OR IN ANY INSTRUMENT, DOCUMENT OR
AGREEMENT PROVIDED BY OGLETHORPE IN CONNECTION WITH ANY OF THE SURETY BOND
DOCUMENTS SHALL HAVE BEEN MATERIALLY FALSE AT THE TIME WHEN MADE;
(D)
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 3.01,
OGLETHORPE SHALL FAIL TO PERFORM ANY OF ITS OTHER CONVENANTS OR OBLIGATIONS IN
THE SUBORDINATED MORTGAGE OR UNDER THIS AGREEMENT OR ANY OF THE OTHER SURETY
BOND DOCUMENTS,