OF ANY PROCEEDINGS BY OR AGAINST ANY PERSON
FOR THE WINDING UP OR THE LIQUIDATION OF ITS AFFAIRS, OR THE CONSENT AFTER THE
DATE HEREOF TO THE APPOINTMENT OF A TRUSTEE, CONSERVATOR, RECEIVER OR LIQUIDATOR
IN ANY BANKRUPTCY, INSOLVENCY, READJUSTMENT OF DEBT, REORGANIZATION, MARSHALLING
OF ASSETS AND LIABILITIES OR PROCEEDINGS SIMILAR TO THE FOREGOING RELATING TO
ANY PERSON.
(I)
WITHOUT LIMITATION OF THE PROVISIONS OF PARAGRAPH (A) OF THIS
SECTION 5, IN THE EVENT THAT ANY PAYMENT BY BERKSHIRE PURSUANT TO EITHER OF THE
BERKSHIRE SURETY BONDS SHALL BE BASED UPON AN IMPROPER OR INCORRECT
DETERMINATION BY ANY OF THE BENEFICIARIES THEREOF THAT THERE SHALL HAVE EXISTED
A BASIS FOR THE DELIVERY OF ANY DEMAND FOR PAYMENT THEREUNDER, BERKSHIRE SHALL
(TO THE EXTENT NOT REPAID) BE DEEMED TO HAVE RECEIVED AN ASSIGNMENT FROM
OGLETHORPE OF SUCH RIGHT, IF ANY, AS OGLETHORPE MAY HAVE TO RECOVER AN AMOUNT
CORRESPONDING TO SUCH PAYMENT OR ANY PORTION THEREOF; PROVIDED, HOWEVER, THAT
BERKSHIRE SHALL HAVE NO RIGHT TO RECOVER ANY SUCH AMOUNTS UNDER THE AMBAC SURETY
BONDS EXCEPT TO THE EXTENT THAT THE AMOUNT THEREOF IS OTHERWISE PAYABLE
THEREUNDER.
(J)
IN THE EVENT THAT BERKSHIRE SHALL GIVE A NOTICE OF TERMINATION
PURSUANT TO PARAGRAPH 5 OF EITHER OF THE SURETY BONDS, IT SHALL PROMPTLY GIVE
NOTICE TO AMBAC AND OGLETHORPE THEREOF.
BERKSHIRE SHALL NOT ENTER INTO ANY
AMENDMENT OF THE PROVISIONS OF CLAUSE (VII) OF PARAGRAPH 5 OF EITHER OF THE
SURETY BONDS PERTAINING TO THE DELIVERY OF NOTICES OF TERMINATION THEREUNDER
EXCEPT WITH THE WRITTEN CONSENT OF AMBAC, PROVIDED THAT AMBAC SHALL NOT BE IN
BREACH OF ITS OBLIGATIONS UNDER THE AMBAC SURETY BONDS.
OGLETHORPE HEREBY
AGREES TO GIVE NOTICE TO THE OWNER PARTICIPANT AND TO AMBAC OF OGLETHORPE'S
PAYMENT OF THE UNPAID PREMIUM AMOUNT (AS DEFINED IN THE NOTICE OF TERMINATION)
AND EVIDENCE THEREOF (WHICH EVIDENCE SHALL BE REASONABLY SATISFACTORY TO THE
16
REQUESTING PARTY OR PARTIES) NO LATER THAN ONE BUSINESS DAY FOLLOWING A REQUEST
BY THE OWNER PARTICIPANT OR AMBAC, AS THE CASE MAY BE, FOR SUCH INFORMATION.
Section 6.
Miscellaneous.
(A)
CONSENTS.
THE OWNER PARTICIPANT COVENANTS
AND AGREES THAT IT SHALL NOT UNREASONABLY WITHHOLD ITS CONSENT TO ANY CONSENT
REQUESTED OF THE FACILITY LESSOR UNDER THE TERMS OF THE BERKSHIRE DOCUMENTS THAT
BY ITS TERMS IS NOT TO BE UNREASONABLY WITHHELD BY THE FACILITY LESSOR.
EACH
PARTY TO THIS AGREEMENT HEREBY CONSENTS TO THE EXECUTION OF THIS AGREEMENT, THE
OTHER BERKSHIRE DOCUMENTS AND THE AMBAC SURETY DOCUMENTS BY EACH OTHER PARTY
HERETO OR THERETO AND TO THE PERFORMANCE BY SUCH OTHER PARTIES OF THEIR
RESPECTIVE OBLIGATIONS HEREUNDER AND THEREUNDER.
THE OWNER PARTICIPANT AGREES
THAT IT WILL NOT INSTRUCT THE OWNER TRUSTEE OR THE CO-TRUSTEE TO TAKE ANY ACTION
IN VIOLATION OF THE EXPRESS TERMS OF THIS AGREEMENT.
RMLC IRREVOCABLY CONSENTS
TO THE SUBROGATION OF AND TRANSFER BY THE RMLC ASSIGNEE TO BERKSHIRE OF THE
SUBROGATION INTEREST AND THE ADDITIONAL SUBROGATION INTEREST IF, AS AND WHEN
PROVIDED HEREUNDER AND THE BERKSHIRE SUBLEASE SURETY BOND.
BERKSHIRE
ACKNOWLEDGES THAT ANY REFERENCE