WITH, OR CAUSE, REQUEST OR REQUIRE ANY OTHER PARTY TO
INTERFERE WITH, ANY RIGHTS OF SUBROGATION, CONTRIBUTION, PURCHASE OR
REIMBURSEMENT IN FAVOR OF BERKSHIRE SET FORTH IN THE BERKSHIRE DOCUMENTS OR (TO
THE EXTENT NOT EXPRESSLY LIMITED BY THE BERKSHIRE DOCUMENTS) APPLICABLE LAW (IT
BEING UNDERSTOOD THAT ANY SUCH SUBROGATION RIGHTS SHALL INCLUDE, WITHOUT
LIMITATION, THE RIGHT TO ENFORCE ANY OBLIGATIONS OF OGLETHORPE THAT HAVE NOT
BEEN PERFORMED BY OGLETHORPE WITH RESPECT TO WHICH ANY PAYMENT UNDER ANY
BERKSHIRE SURETY BOND IS MADE OR AGAINST WHICH THE PROCEEDS THEREOF ARE
OTHERWISE APPLIED, TO THE SAME EXTENT AS THOUGH NO PAYMENT HAD BEEN MADE UNDER
ANY BERKSHIRE SURETY BOND, SO LONG AS BERKSHIRE HAS NOT BEEN REIMBURSED BY
OGLETHORPE PURSUANT TO THE BERKSHIRE GUARANTY AGREEMENT AND/OR AMBAC HAS NOT
PAID, IN INSTALLMENTS OR (AT AMBAC'S SOLE OPTION) ON AN ACCELERATED BASIS, UNDER
THE AMBAC SURETY BONDS, THE FULL AMOUNT OF ALL BERKSHIRE OBLIGATIONS (AS DEFINED
BELOW); PROVIDED, HOWEVER, THAT CAUSING, REQUESTING OR REQUIRING ANY PARTY
HERETO TO PERFORM ITS OBLIGATIONS HEREUNDER OR UNDER ANY OTHER OPERATIVE
DOCUMENT SHALL NOT CONSTITUTE SUCH INTERFERENCE, AND (II) UPON THE EXERCISE OF
ANY SUCH RIGHTS BY BERKSHIRE, AGREES TO RECOGNIZE BERKSHIRE AS SUBROGEE,
PURCHASER OR ASSIGNEE, AS THE CASE MAY BE.
NOTHING IN THIS PARAGRAPH 5(D) SHALL
BE CONSTRUED TO BE A REPRESENTATION ON THE PART OF THE OWNER PARTICIPANT OR HEAD
LESSEE AS TO THE EXISTENCE OR EXTENT OF THE RIGHT, TITLE, INTEREST AND REMEDIES
TO WHICH BERKSHIRE SHALL BE SUBROGATED PURSUANT TO THIS SECTION 5 OR APPLICABLE
LAW, EXCEPT THAT THE OWNER PARTICIPANT AND THE HEAD LESSEE SHALL BE DEEMED TO
REPRESENT, SEVERALLY AS TO ITSELF, THAT IT HAS NOT ASSIGNED SUCH RIGHT, TITLE,
INTEREST OR REMEDIES (OTHER THAN, IN THE CASE OF THE HEAD LESSEE, ANY GRANT TO
THE LENDER OF A SECURITY INTEREST IN ANY SUCH RIGHT, TITLE, INTEREST OR REMEDIES
OR ANY INTEREST THEREIN OR OTHER RIGHTS RELATING THERETO UNDER AND AS PROVIDED
BY THE LOAN
10
AGREEMENT, AND OTHER THAN ANY ASSIGNMENT OR GRANT OF SUBROGATION RIGHTS REQUIRED
UNDER THE TERMS OF THE AMBAC SURETY DOCUMENTS) AND, IN THE CASE OF THE OWNER
PARTICIPANT, THAT NO OWNER PARTICIPANT'S LIEN OR, IN THE CASE OF THE HEAD
LESSEE, THAT NO FACILITY LESSOR'S LIEN EXISTS THEREON.
UPON PAYMENT OF ANY
DEMAND FOR PAYMENT UNDER THE BERKSHIRE SURETY BONDS, BERKSHIRE SHALL HAVE NO
LIABILITY OR DUTY TO AMBAC, OR TO ACCOUNT TO AMBAC, FOR THE EXERCISE OF ANY
RIGHTS AND REMEDIES, OR FAILURE TO EXERCISE ANY RIGHTS OR REMEDIES, OR ANY OTHER
ACTION TAKEN BY IT OR FAILURE TO ACT UNDER THE BERKSHIRE DOCUMENTS, THE
BERKSHIRE GUARANTY AGREEMENT, THE OPERATIVE DOCUMENTS OR APPLICABLE LAW OR THE
EFFECT OF ANY SUCH ACTION; PROVIDED, HOWEVER, THAT IF AMBAC SHALL HAVE MADE ANY
PAYMENT UNDER THE AMBAC SURETY BONDS THAT SHALL HAVE NOT BEEN REIMBURSED BUT
SHALL HAVE NOT MADE FULL PAYMENT OF ALL AMOUNTS DUE UNDER THE AMBAC SURETY
BONDS, BERKSHIRE SHALL, UPON REQUEST BY AND AT THE EXPENSE OF AMBAC, DO EITHER