seek an appraisal of the Leasehold Interest under this
Section 4(c).
Oglethorpe hereby represents to Berkshire that (1) in 2008
Oglethorpe's estimate of market value of its entire interest in the Facility was
$1.03 billion, (2) such estimate was determined in the ordinary course, in
connection with an internal valuation of all of its generating facilities, and
not in anticipation of or in connection with the transactions contemplated
pursuant to the Agreement Regarding Surety Bonds, (3) such estimate was
performed using a discounted cash flow approach and assumptions that Oglethorpe
believed, at the time of such determination, to be reasonable, (4) Oglethorpe
believes that its estimate of market value continues to be within the range of
values which could be deemed to be market for Oglethorpe's interest in the
Facility as of the Berkshire Surety Bond Date, and (5) as of
8
the Berkshire Surety Bond Date, Oglethorpe has not updated such estimate and
continues to utilize such estimate internally for the purposes for which it was
originally generated.
Section 5.
Agreements Regarding Subrogation Rights, Etc.
Anything
contained in the AMBAC Surety Documents to the contrary notwithstanding:
(A)
EACH OF OGLETHORPE, RMLC, THE OWNER
PARTICIPANT, THE OWNER TRUSTEE, THE CO-TRUSTEE AND AMBAC ACKNOWLEDGES AND AGREES
THAT IN THE EVENT THAT A DEMAND FOR PAYMENT IS MADE UNDER EITHER OF THE
BERKSHIRE SURETY BONDS AND BERKSHIRE PAYS THE AMOUNT REQUIRED BY SUCH DEMAND IN
FULL (THE PAYMENT BY BERKSHIRE IN FULL OF THE AMOUNT REQUIRED BY SUCH A DEMAND
BEING REFERRED TO AS A "BERKSHIRE SURETY PAYMENT") (I) BERKSHIRE SHALL
IMMEDIATELY BE FULLY SUBROGATED TO ALL RIGHTS OF EACH OF THE RESPECTIVE AMBAC
BENEFICIARIES IN RESPECT OF AMBAC'S OBLIGATIONS WITH RESPECT TO SUCH BERKSHIRE
SURETY PAYMENT, INCLUDING ANY RELATED CLAIMED AMOUNT (AS DEFINED IN THE AMBAC
SURETY BONDS) THAT IS UNPAID UNDER THE AMBAC SURETY BONDS, AND THE AMBAC
BENEFICIARIES SHALL HAVE NO FURTHER OBLIGATION TO AMBAC UNDER THE AMBAC SURETY
BONDS WITH RESPECT TO SUCH BERKSHIRE SURETY PAYMENT, (II) BERKSHIRE SHALL BE
ENTITLED TO EXERCISE ANY AND ALL RIGHTS AND TO ENFORCE ANY AND ALL REMEDIES
WHICH ANY SUCH AMBAC BENEFICIARY NOW HAS OR MAY HEREAFTER HAVE AGAINST AMBAC
WITH RESPECT TO SUCH BERKSHIRE SURETY PAYMENT, AND (III) BERKSHIRE SHALL HAVE,
EXCEPT AS SPECIFIED IN THE PENULTIMATE SENTENCE OF PARAGRAPH 11(F)(II) OF THE
BERKSHIRE SURETY BONDS, THE SOLE AND EXCLUSIVE BENEFIT OF, AND THE SOLE AND
EXCLUSIVE RIGHT TO PARTICIPATE IN, ANY CLAIMS OR RECOVERIES AGAINST AMBAC WITH
RESPECT TO SUCH BERKSHIRE SURETY PAYMENT, IN EACH CASE UNDER CLAUSES (I),
(II) AND (III) FOR ITS OWN BENEFIT AND TO THE EXCLUSION OF EACH OF THE AMBAC
BENEFICIARIES OR ANY OTHER PERSON, AND WITHOUT ANY DUTY TO ACCOUNT THEREFOR TO
ANY OTHER PERSON AND (IV) EACH OF THE AMBAC BENEFICIARIES SHALL, UPON REQUEST BY
AND AT THE EXPENSE OF BERKSHIRE, EXECUTE AND DELIVER TO BERKSHIRE OR ITS
DESIGNEE SUCH ASSIGNMENTS AND OTHER AGREEMENTS, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO BERKSHIRE, AS BERKSHIRE MAY REASONABLY REQUIRE TO EVIDENCE THE
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