GENERALLY
AND SUBJECT AS TO ENFORCEABILITY TO GENERAL PRINCIPLES OF EQUITY IN A PROCEEDING
AT LAW OR IN EQUITY; AND
(III)
ITS EXECUTION, DELIVERY AND PERFORMANCE OF EACH SURETY BOND
DOCUMENT TO WHICH IT IS A PARTY DOES NOT AND WILL NOT RESULT IN A BREACH OR
VIOLATION IN ANY MATERIAL RESPECT OF, OR CAUSE A DEFAULT IN ANY MATERIAL RESPECT
UNDER, (A) ITS ARTICLES OF INCORPORATION, ARTICLES OF ASSOCIATION, BY-LAWS OR
OTHER GOVERNING DOCUMENTS, OR (B) ANY MATERIAL PROVISION OF ANY APPLICABLE LAW,
REGULATION, OR ORDER, OR ANY MATERIAL LICENSE, DECREE, JUDGMENT, INDENTURE,
CONTRACT OR AGREEMENT BINDING UPON IT OR ITS ASSETS.
(B)
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF
AMBAC.
AMBAC HEREBY REPRESENTS AND WARRANTS TO THE OTHER PARTIES HERETO AS
FOLLOWS:
(I)
AMBAC HAS FULL CORPORATE POWER AND AUTHORITY TO EXECUTE AND
DELIVER THE AMBAC SURETY BONDS, AND THE AMBAC SURETY BONDS HAVE BEEN DULY
AUTHORIZED, EXECUTED AND DELIVERED BY AMBAC, AND CONSTITUTE LEGAL, VALID AND
BINDING OBLIGATIONS OF AMBAC ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE
TERMS EXCEPT TO THE EXTENT THAT THE ENFORCEABILITY (BUT NOT THE VALIDITY) OF
SUCH OBLIGATIONS MAY BE LIMITED BY ANY APPLICABLE BANKRUPTCY, INSOLVENCY,
LIQUIDATION, REHABILITATION OR OTHER SIMILAR LAW OR ENACTMENT NOW OR HEREAFTER
ENACTED AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS; AND
(II)
THE EXECUTION AND DELIVERY BY AMBAC OF THE AMBAC SURETY BONDS
WILL NOT, AND THE SATISFACTION OF THE TERMS THEREOF WILL NOT, CONFLICT WITH OR
RESULT IN A BREACH, IN ANY MATERIAL RESPECT, OF ANY OF THE TERMS, CONDITIONS OR
PROVISIONS OF THE RESTATED ARTICLES OF INCORPORATION OR RESTATED CORPORATE
BY-LAWS OF AMBAC, OR ANY RESTRICTION CONTAINED IN ANY CONTRACT, AGREEMENT OR
INSTRUMENT TO WHICH AMBAC IS A PARTY OR BY WHICH IT IS BOUND OR CONSTITUTE A
DEFAULT, IN ANY MATERIAL RESPECT, UNDER ANY OF THE FOREGOING.
4
Section 4.
Agreements Regarding Operative Documents.
Effective as
of the Effective Date:
(A)
FROM AND AFTER THE DATE HEREOF UNTIL THE
BERKSHIRE TERMINATION DATE (AS DEFINED BELOW), AND SO LONG AS BERKSHIRE IS NOT
IN DEFAULT IN ANY MATERIAL RESPECT IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER
THE BERKSHIRE SURETY BONDS:
(I)
AMBAC SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF BERKSHIRE
(WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD), SUPPLEMENT, MODIFY OR AMEND,
OR GRANT, PROVIDE OR ENTER INTO ANY WAIVER, RELEASE OR COMPROMISE (EACH, A
"MODIFICATION") UNDER OR IN RESPECT OF ANY OF THE OPERATIVE DOCUMENTS, TO THE
EXTENT THAT SUCH ACTION HAS OR WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT ON THE RIGHTS AND INTERESTS OF BERKSHIRE UNDER THE BERKSHIRE
DOCUMENTS OR THE OPERATIVE DOCUMENTS OR THE VALUE OF THE BENEFICIAL INTEREST OR
ANY PART THEREOF, PROVIDED, HOWEVER, THAT FORBEARANCE BY AMBAC ON A
DISCRETIONARY BASIS FROM EXERCISING ANY RIGHT OR REMEDY SHALL NOT REQUIRE SUCH
CONSENT; AND PROVIDED, FURTHER, THAT NOTHING IN THIS SECTION 4(A)(I) SHALL BE
CONSTRUED TO PREVENT AMBAC FROM CONSENTING TO (X) ANY WAIVER (WHETHER OR NOT
SUCH CONSENT IS REQUIRED) OF OGLETHORPE'S OBLIGATIONS TO REPLACE THE BERKSHIRE
SURETY BONDS PURSUANT