PROVIDED, HOWEVER, THAT OGLETHORPE SHALL NOT BE OBLIGATED TO PAY ANY EXPENSES OF
BERKSHIRE IN TERMINATING THE SURETY BONDS IF AT THE TIME BERKSHIRE'S FINANCIAL
STRENGTH RATING IS LESS THAN AA BY S&P AND LESS THAN AA2 BY MOODY'S.
SECTION 2.02.
SECURITY FOR PAYMENTS; INSTRUMENTS OF FURTHER ASSURANCE.
(A)
IN ORDER TO SECURE ITS PAYMENT OBLIGATIONS TO BERKSHIRE
HEREUNDER, OGLETHORPE HAS AMENDED THE SUBORDINATED MORTGAGE.
OGLETHORPE HEREBY
REPRESENTS TO BERKSHIRE
5
THAT THE SUBORDINATED MORTGAGE GRANTS TO BERKSHIRE A PERFECTED SECURITY INTEREST
IN THE SUBORDINATED COLLATERAL.
(B)
OGLETHORPE AGREES THAT IT WILL, FROM TIME TO TIME,
EXECUTE, ACKNOWLEDGE AND DELIVER, OR CAUSE TO BE EXECUTED, ACKNOWLEDGED AND
DELIVERED, ANY AND ALL DEEDS OF TRUST, MORTGAGES AND/OR FINANCING STATEMENTS, IF
APPLICABLE, AND ALL OTHER FURTHER INSTRUMENTS AS MAY BE REQUIRED BY LAW, OR AS
SHALL REASONABLY BE REQUESTED BY BERKSHIRE, FOR THE PERFECTION OF THE SECURITY
INTEREST IN THE SUBORDINATED COLLATERAL GRANTED TO BERKSHIRE PURSUANT TO THE
SUBORDINATED MORTGAGE AND FOR THE PRESERVATION AND PROTECTION OF ALL RIGHTS OF
BERKSHIRE THEREUNDER.
SECTION 2.03.
INDEMNIFICATION RIGHTS.
IN ADDITION TO ANY AND ALL RIGHTS OF
REIMBURSEMENT, INDEMNIFICATION, SUBROGATION AND ANY OTHER RIGHTS PURSUANT TO
THIS AGREEMENT OR ANY OF THE OTHER SURETY BOND DOCUMENTS OR AT LAW OR IN EQUITY,
OGLETHORPE AGREES TO PAY AND ASSUME LIABILITY FOR, AND TO PROTECT, DEFEND,
INDEMNIFY AND SAVE HARMLESS BERKSHIRE AND ITS AFFILIATES, AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS AND ADVISORS,
AND EACH PERSON, IF ANY, WHO CONTROLS BERKSHIRE OR ANY AFFILIATE OF BERKSHIRE
WITHIN THE MEANING OF EITHER SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF
THE EXCHANGE ACT, FROM ANY AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES,
OBLIGATIONS, PENALTIES, DAMAGES, SUITS, ACTIONS AND OTHER PROCEEDINGS, COSTS AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, FEES AND EXPENSES OF ATTORNEYS,
CONSULTANTS AND AUDITORS AND COSTS OF INVESTIGATIONS) OF ANY NATURE IN ANY WAY
ARISING OUT OF OR RELATING TO THE OVERALL TRANSACTION, THE OPERATIVE DOCUMENTS,
THE AMBAC GUARANTY AND/OR THE SURETY BOND DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY OR THE ENFORCEMENT THEREOF (INCLUDING, WITHOUT LIMITATION,
ANY CLAIM (A) THAT ANY PAYMENT MADE OR COLLATERAL DELIVERED TO OGLETHORPE IS
SUBJECT TO THE CLAIMS OF ANY OTHER PERSON OR SUBJECT TO AVOIDANCE, DISGORGEMENT,
REPAYMENT, REDELIVERY OR REIMBURSEMENT OR (B) ARISING OUT OF ANY FAILURE BY
OGLETHORPE TO PERFORM OR OBSERVE ANY COVENANT, CONDITION OR AGREEMENT IN, OR THE
FALSITY OF ANY REPRESENTATION OR WARRANTY OF OGLETHORPE MADE IN OR PURSUANT TO,
THIS AGREEMENT OR ANY OF THE OTHER SURETY BOND DOCUMENTS); PROVIDED, HOWEVER,
THAT, WITHOUT LIMITATION OF THE FOREGOING PROVISIONS OF THIS SECTION 2.03, IF
BERKSHIRE ACQUIRES THE INTERESTS OF THE OWNER PARTICIPANT OR ANY OTHER PERSON
UNDER OR IN RESPECT OF ANY OF THE OPERATIVE DOCUMENTS, BERKSHIRE SHALL THEREUPON
BE ENTITLED TO ALL APPLICABLE INDEMNITIES CONTAINED IN OR PROVIDED UNDER THE
TERMS OF THE OPERATIVE DOCUMENTS; PROVIDED FURTHER, THAT OGLETHORPE SHALL NOT BE
OBLIGATED TO PAY ANY EXPENSES OF BERKSHIRE IN TERMINATING THE SURETY BONDS IF AT
THE TIME BERKSHIRE'S FINANCIAL