IN THIS AGREEMENT OR THE BERKSHIRE SURETY BONDS
TO RIGHTS OF RMLC AND THE FACILITY LESSOR, RESPECTIVELY, TO WHICH BERKSHIRE MAY
BE SUBROGATED OR OF WHICH IT MAY RECEIVE AN ASSIGNMENT SHALL BE CONSTRUED IN A
MANNER CONSISTENT WITH THE GRANT BY RMLC OF A SECURITY INTEREST PURSUANT TO THE
FACILITY SUBLEASE ASSIGNMENT AGREEMENT; AND ACCORDINGLY, WITHOUT LIMITATION, IN
THE EVENT THAT THE LIEN OF THE FACILITY SUBLEASE ASSIGNMENT AGREEMENT SHALL HAVE
BEEN DISCHARGED THE RIGHTS OF THE FACILITY LESSOR MAY HAVE CORRESPONDINGLY
REVERTED TO RMLC.
(B)
AMENDMENTS AND WAIVERS.
NO TERM, COVENANT,
AGREEMENT OR CONDITION OF THIS AGREEMENT MAY BE TERMINATED, AMENDED OR
COMPLIANCE THEREWITH WAIVED (EITHER GENERALLY OR IN A PARTICULAR INSTANCE,
RETROACTIVELY OR PROSPECTIVELY) EXCEPT BY AN INSTRUMENT OR INSTRUMENTS IN
WRITING EXECUTED BY EACH PARTY HERETO.
(C)
OPERATIVE DOCUMENTS.
THE PARTIES HERETO
ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT, EACH OF THE BERKSHIRE DOCUMENTS AND
THE AMBAC SURETY DOCUMENTS ARE AND SHALL BE OPERATIVE DOCUMENTS, PROVIDED THAT
THE AGREEMENT REGARDING SURETY BONDS AND THE BERKSHIRE GUARANTY AGREEMENT SHALL
BE OPERATIVE DOCUMENTS IF AND ONLY IF BERKSHIRE OR A DESIGNEE OF BERKSHIRE SHALL
ACQUIRE, BY SUBROGATION, ASSIGNMENT, PURCHASE OR OTHERWISE, THE OWNER
PARTICIPANT'S BENEFICIAL INTEREST OR THE SUBROGATION INTEREST OR THE RIGHTS OF
THE OWNER PARTICIPANT OR THE HEAD LESSEE UNDER THE OPERATIVE DOCUMENTS AND, AT
THE TIME OF SUCH ACQUISITION OR AT THE TIME THAT BERKSHIRE OR ANY DESIGNEE OF
BERKSHIRE SHALL BE COMMITTED TO MAKE SUCH ACQUISITION OR AT ANY TIME THEREAFTER,
EITHER (A) AN EVENT OF DEFAULT OR A HEAD LESSOR EVENT OF DEFAULT SHALL EXIST OR
(B) BERKSHIRE SHALL HAVE RECEIVED A DEMAND FOR PAYMENT UNDER EITHER OF THE
BERKSHIRE SURETY BONDS.
(D)
NOTICES.
UNLESS OTHERWISE EXPRESSLY
SPECIFIED OR PERMITTED BY THE TERMS HEREOF, ALL COMMUNICATIONS AND NOTICES
PROVIDED FOR HEREIN SHALL BE IN WRITING OR BY A TELECOMMUNICATIONS DEVICE
CAPABLE OF CREATING A WRITTEN RECORD, AND ANY SUCH NOTICE SHALL BECOME EFFECTIVE
(A) UPON PERSONAL DELIVERY THEREOF, INCLUDING, WITHOUT LIMITATION, BY OVERNIGHT
MAIL OR COURIER SERVICE, (B) IN THE CASE OF NOTICE BY UNITED STATES MAIL,
CERTIFIED OR REGISTERED, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, UPON RECEIPT
THEREOF, OR (C) IN THE
17
CASE OF NOTICE BY SUCH A TELECOMMUNICATIONS DEVICE, UPON TRANSMISSION THEREOF,
PROVIDED SUCH TRANSMISSION IS PROMPTLY CONFIRMED BY EITHER OF THE METHODS SET
FORTH IN CLAUSES (A) OR (B) ABOVE, IN EACH CASE ADDRESSED TO EACH PARTY HERETO
AT ITS ADDRESS SET FORTH IN THE PARTICIPATION AGREEMENT OR, IN THE CASE OF
BERKSHIRE, SET FORTH IN THE SURETY BONDS, OR, IN THE CASE OF ANY SUCH PARTY
HERETO, AT SUCH OTHER ADDRESS AS SUCH PARTY MAY FROM TIME TO TIME DESIGNATE BY
WRITTEN NOTICE TO THE OTHER PARTIES HERETO.
(E)
SURVIVAL.
ALL WARRANTIES, REPRESENTATIONS, INDEMNITIES AND
COVENANTS MADE BY ANY PARTY HERETO, HEREIN OR IN ANY CERTIFICATE OR OTHER
INSTRUMENT DELIVERED BY ANY SUCH PARTY OR ON BEHALF OF ANY SUCH PARTY UNDER THIS
AGREEMENT SHALL BE CONSIDERED TO HAVE BEEN RELIED UPON BY EACH OTHER PARTY
HERETO AND SHALL