SURVIVE THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY AND IN THE OTHER BERKSHIRE DOCUMENTS REGARDLESS OF ANY INVESTIGATION MADE
BY ANY SUCH PARTY OR ON BEHALF OF ANY SUCH PARTY.
(F)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
SHALL INURE TO THE BENEFIT OF, AND SHALL BE ENFORCEABLE BY, THE PARTIES HERETO
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AS PERMITTED BY AND IN ACCORDANCE
WITH THE TERMS OF THE OPERATIVE DOCUMENTS, THE BERKSHIRE DOCUMENTS OR THE AMBAC
SURETY DOCUMENTS, AS APPLICABLE.
THE OWNER PARTICIPANT COVENANTS THAT PRIOR TO
ANY TRANSFER OF ITS BENEFICIAL INTEREST OR ANY INTEREST THEREIN IT WILL ENSURE
THAT ANY TRANSFEREE OWNER PARTICIPANT OR TRANSFEREE OF ANY SUCH INTEREST (IN
EACH CASE OTHER THAN AMBAC, BUT SUBJECT TO THE REQUIREMENTS OF THE PARTICIPATION
AGREEMENT) EXECUTES AN AGREEMENT ASSUMING THE OBLIGATIONS OF THE OWNER
PARTICIPANT UNDER THIS AGREEMENT (INCLUDING THIS SECTION).
(G)
GOVERNING LAW.
THIS AGREEMENT HAS BEEN DELIVERED IN THE STATE OF
NEW YORK AND SHALL BE IN ALL RESPECTS GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
(H)
SEVERABILITY.
IF ANY PROVISION HEREOF SHALL BE INVALID, ILLEGAL
OR UNENFORCEABLE UNDER APPLICABLE LAW, THE VALIDITY, LEGALITY AND ENFORCEABILITY
OF THE REMAINING PROVISIONS HEREOF SHALL NOT BE AFFECTED OR IMPAIRED THEREBY.
(I)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH EXECUTED COUNTERPART CONSTITUTING AN ORIGINAL BUT ALL
TOGETHER ONLY ONE AGREEMENT.
(J)
HEADINGS AND TABLE OF CONTENTS.
THE HEADINGS OF THE SECTIONS OF
THIS AGREEMENT ARE INSERTED FOR PURPOSES OF CONVENIENCE ONLY AND SHALL NOT BE
CONSTRUED TO AFFECT THE MEANING OR CONSTRUCTION OF ANY OF THE PROVISIONS HEREOF.
(K)
LIMITATION OF LIABILITY.
THE TRUST COMPANY IS ENTERING INTO THE
OPERATIVE DOCUMENTS TO WHICH IT IS A PARTY SOLELY AS TRUSTEE UNDER THE TRUST
AGREEMENT AND NOT IN ITS INDIVIDUAL CAPACITY, EXCEPT AS EXPRESSLY PROVIDED
HEREIN OR THEREIN, AND IN NO CASE WHATSOEVER SHALL EITHER TRUST COMPANY BE
PERSONALLY LIABLE FOR, OR FOR ANY LOSS IN RESPECT OF, ANY OF THE STATEMENTS,
REPRESENTATIONS, WARRANTIES, AGREEMENTS OR OBLIGATIONS OF FACILITY LESSOR OR
HEAD LESSEE, AS APPLICABLE, HEREUNDER OR UNDER ANY OTHER SURETY BOND DOCUMENT,
AS TO ALL OF WHICH THE OTHER PARTIES HERETO AGREE TO LOOK SOLELY TO THE TRUST
18
ESTATE; PROVIDED, HOWEVER, THAT THE TRUST COMPANY SHALL BE LIABLE HEREUNDER FOR
ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR FOR A BREACH OF ITS
REPRESENTATIONS, WARRANTIES AND COVENANTS MADE IN ITS INDIVIDUAL CAPACITY IN
SECTION 3 HEREOF.
(L)
CONSENT TO JURISDICTION.
EACH OF THE
PARTIES HERETO (I) HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION
OF THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY (WITHOUT
PREJUDICE TO THE RIGHT OF ANY PARTY TO REMOVE TO THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK) AND TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSES OF ANY SUIT,