AND ASSIGNMENT TO BERKSHIRE OF ALL SUCH RIGHTS AND INTERESTS OF EACH
SUCH AMBAC BENEFICIARY IN, TO AND UNDER THE AMBAC SURETY BONDS WITH RESPECT TO
SUCH BERKSHIRE SURETY PAYMENT.
NOTWITHSTANDING ANYTHING IN THE NEXT PRECEDING
SENTENCE TO THE CONTRARY, IN THE EVENT THAT, FOLLOWING ANY SUBROGATION, TRANSFER
AND ASSIGNMENT CONTEMPLATED IN SUCH SENTENCE, ANY PAYMENT WITH RESPECT TO A
COVERED OBLIGATION (AS DEFINED IN THE BERKSHIRE HEAD LEASE SURETY BOND OR THE
BERKSHIRE SUBLEASE SURETY BOND) SHALL BECOME AN OGLETHORPE AVOIDED PAYMENT, THE
AMBAC BENEFICIARIES SHALL RETAIN ALL RIGHTS TO DRAW UNDER THE AMBAC SURETY BONDS
WITH RESPECT TO SUCH OGLETHORPE AVOIDED PAYMENT AS ARE PROVIDED UNDER SUCH BONDS
AND RETAIN THE PROCEEDS OF SUCH DRAWING, PROVIDED, HOWEVER, THAT IN THE EVENT
THAT AMBAC SHALL NOT HONOR SUCH DRAWING AND A DRAWING UNDER THE BERKSHIRE SURETY
BONDS WITH RESPECT TO SUCH OGLETHORPE AVOIDED PAYMENT SHALL BE HONORED,
BERKSHIRE SHALL BE SUBROGATED AND SHALL BE ENTITLED TO TRANSFER AND ASSIGNMENT
AS SPECIFIED IN THE NEXT PRECEDING SENTENCE WITH RESPECT TO THE RIGHTS OF EACH
SUCH AMBAC BENEFICIARY UNDER THE AMBAC SURETY BONDS WITH RESPECT TO SUCH
OGLETHORPE AVOIDED PAYMENT.
(B)
AMBAC AGREES THAT IF A CONFORMING DEMAND FOR
PAYMENT IS MADE UNDER EITHER OF THE BERKSHIRE SURETY BONDS AND BERKSHIRE MAKES A
BERKSHIRE SURETY PAYMENT OF
9
THE AMOUNT DEMANDED THEREUNDER, AMBAC SHALL THEREUPON PAY TO BERKSHIRE FROM TIME
TO TIME ALL AMOUNTS THEN DUE OR TO BECOME DUE UNDER EITHER OR BOTH OF THE AMBAC
SURETY BONDS WITH RESPECT TO SUCH BERKSHIRE SURETY PAYMENT, IN EACH CASE IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS, AND THE AMBAC BENEFICIARIES ACKNOWLEDGE
AND AGREE TO SUCH PAYMENTS BY AMBAC, SUBJECT TO THE PROVISIONS OF
SECTION 5(A) HEREOF.
AMBAC FURTHER AGREES THAT THE OBLIGATION OF AMBAC TO MAKE
ANY PAYMENTS TO BERKSHIRE OR ITS DESIGNEE AS SUBROGEE, ASSIGNEE OR TRANSFEREE OF
THE AMBAC BENEFICIARIES UNDER THE AMBAC SURETY BONDS, WHETHER UNDER THIS
SECTION 5(B) OR OTHERWISE, SHALL BE ABSOLUTE, IRREVOCABLE AND UNCONDITIONAL AND
NOT SUBJECT TO ANY SETOFF, COUNTERCLAIM OR DEFENSE OR ANY OTHER REQUIREMENT OF
ANY KIND OR NATURE, AS AND TO THE EXTENT SPECIFIED IN THE AMBAC SURETY BONDS,
EACH OF WHICH WAIVERS OF SETOFF, COUNTERCLAIM AND DEFENSE IS HEREBY REAFFIRMED
FOR THE EXPRESS BENEFIT OF BERKSHIRE.
UPON SUBROGATION OF BERKSHIRE PURSUANT TO
SECTION 5(A) HEREOF, THE AMBAC BENEFICIARIES SHALL CEASE TO HAVE ANY CLAIM
AGAINST AMBAC UNDER THE AMBAC SURETY BONDS FOR SUCH BERKSHIRE SURETY PAYMENT.
(C)
AMBAC IRREVOCABLY, ABSOLUTELY AND UNCONDITIONALLY WAIVES ALL
RIGHTS OF REIMBURSEMENT, CONTRIBUTION AND SUBROGATION AGAINST BERKSHIRE, WHETHER
OTHERWISE EXISTING UNDER OR BY VIRTUE OF ANY OF THE BERKSHIRE DOCUMENTS OR ANY
PAYMENTS OR OTHER ACTIONS THEREUNDER OR BY APPLICABLE LAW OR OTHERWISE.
NOTHING
IN THIS SECTION 5(C) SHALL BE CONSTRUED TO PREVENT AMBAC FROM BRINGING A
SEPARATE ACTION AGAINST BERKSHIRE FOR ANY BREACH BY BERKSHIRE OF ITS OBLIGATIONS
TO AMBAC, IF ANY, UNDER ANY OF THE BERKSHIRE DOCUMENTS.
(D)
EACH OF THE PARTIES HERETO (I) CONSENTS TO, AGREES TO RECOGNIZE
AND WILL NOT INTERFERE