to issue the Surety Bonds, Oglethorpe has agreed to
(i) pay the Premium for such Surety Bonds and to pay certain of Berkshire's
expenses related to the Overall Transaction, (ii) reimburse Berkshire for all
payments made by Berkshire pursuant to the Surety Bonds and/or the Berkshire
Agreement for Assignment on Default (P1) dated as of the date hereof (the
"Agreement for Assignment on Default") among the Owner Participant, the Facility
Lessor, the Owner Trustee and Berkshire, and (iii) secure its obligation to
reimburse Berkshire pursuant to this Agreement in the manner hereinafter set
forth; and
WHEREAS, Oglethorpe understands that Berkshire expressly requires the delivery
of this Agreement as part of the consideration for the issuance by Berkshire of
the Surety Bonds.
NOW, THEREFORE, in consideration of the premises and of the agreements herein
contained and of the execution of the Surety Bonds, Oglethorpe and Berkshire
agree as follows:
ARTICLE I
DEFINITIONS; SURETY BONDS; PREMIUM; CERTAIN COSTS
SECTION 1.01.
DEFINITIONS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR
UNLESS THE CONTEXT OTHERWISE REQUIRES, THE TERMS WHICH ARE CAPITALIZED HEREIN
SHALL HAVE THE MEANINGS SPECIFIED IN ANNEX A HERETO.
SECTION 1.02.
SURETY BONDS.
THE MAXIMUM LIABILITY OF BERKSHIRE UNDER THE
FACILITY SUBLEASE SURETY BOND AND THE HEAD LEASE SURETY BOND, RESPECTIVELY, AND
THE RESPECTIVE COVERAGES AND TERMS THEREOF SHALL BE SUBJECT TO AND LIMITED BY
THE TERMS AND CONDITIONS OF THE FACILITY SUBLEASE SURETY BOND AND THE HEAD LEASE
SURETY BOND, RESPECTIVELY.
SECTION 1.03.
PREMIUM.
(A)
IN CONSIDERATION OF BERKSHIRE'S AGREEING TO
ISSUE THE SURETY BONDS PURSUANT TO THE AGREEMENT REGARDING SURETY BONDS,
OGLETHORPE HEREBY AGREES TO PAY, OR CAUSE TO BE PAID, TO BERKSHIRE, A PREMIUM
(THE "PREMIUM") EQUAL TO THE SUM OF 1.25% OF THE AVERAGE OF THE AMOUNTS SHOWN ON
SCHEDULE A HERETO AS THE "SURETY BOND COVERAGE" FOR JANUARY AND JULY FOR EACH
CALENDAR YEAR DURING THE SCHEDULED TERM OF THE SURETY BONDS (I.E., FROM THE DATE
ON WHICH THE SURETY BONDS ARE ISSUED THROUGH JANUARY 11, 2027 (THE "SCHEDULED
TERMINATION DATE")), WITH THE AMOUNT CALCULATED FOR EACH CALENDAR YEAR BEING
PAYABLE IN ADVANCE ON OCTOBER 31 OF THE PRECEDING CALENDAR YEAR OR, IN THE CASE
OF CALENDAR YEARS 2009 AND 2010, ON THE CLOSING DATE, AS THE CASE MAY BE, AND
PRORATED FOR THE FIRST AND LAST YEARS OF THE SCHEDULED TERM OF THE SURETY BONDS,
IN EACH CASE AS FOLLOWS:
2
(i)
on the Closing Date, Oglethorpe will pay to Berkshire
an amount equal to $2,089,615.06, which represents the portion of the Premium
calculated for 2009 and 2010, with the amount calculated for 2009 being prorated
based on the weighted average of the amounts shown on Schedule A as the "Surety
Bond Coverage" for May and July for the number of days remaining in such year;
(ii)
for each calendar year subsequent to 2010 through 2026,
Oglethorpe shall pay the portion of the Premium calculated for such calendar
year in advance on October 31 of the preceding calendar year (or, if such day is
not a