ITS SUCCESSORS AND
ASSIGNS, SO AS TO GIVE TO IT A DIRECT RIGHT OF ACTION AGAINST OGLETHORPE TO
ENFORCE THIS AGREEMENT, AND "BERKSHIRE," WHEREVER USED HEREIN, SHALL BE DEEMED
TO INCLUDE SUCH REINSURING SURETY, AS ITS RESPECTIVE INTERESTS MAY APPEAR, IN
EACH CASE TO THE EXTENT AGREED BY BERKSHIRE WITH SUCH OTHER SURETY; PROVIDED,
HOWEVER, THAT OGLETHORPE SHALL NOT BE REQUIRED TO GIVE NOTICES TO, OR TO OBTAIN
THE CONSENT OF, ANY SUCH REINSURER; PROVIDED FURTHER, THAT SECTION 1.03,
SECTION 1.04, ARTICLE 4 AND SECTION 5.03 HEREOF SHALL ONLY BE FOR THE BENEFIT OF
BERKSHIRE AND SHALL NOT INURE TO THE BENEFIT OF ANY OTHER SURETY.
SECTION 5.06.
WAIVER.
OGLETHORPE WAIVES ANY DEFENSE THAT THIS AGREEMENT WAS
EXECUTED SUBSEQUENT TO THE DATE OF ISSUANCE OF THE SURETY BONDS, ADMITTING AND
COVENANTING THAT
11
SUCH SURETY BONDS WERE EXECUTED PURSUANT TO OGLETHORPE'S REQUEST AND IN RELIANCE
ON OGLETHORPE'S PROMISE TO EXECUTE THIS AGREEMENT.
SECTION 5.07.
NOTICES, REQUESTS, DEMANDS.
EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED HEREIN, ALL WRITTEN NOTICES, REQUESTS, DEMANDS OR OTHER COMMUNICATIONS
TO OR UPON THE RESPECTIVE PARTIES HERETO SHALL BE DEEMED TO HAVE BEEN GIVEN OR
MADE WHEN ACTUALLY RECEIVED, OR IN THE CASE OF TELEX OR TELECOPIER NOTICE SENT
OVER A TELECOPIER MACHINE OWNED OR OPERATED BY A PARTY HERETO, WHEN SENT,
ADDRESSED AS SPECIFIED BELOW OR AT SUCH OTHER ADDRESS AS EITHER OF THE PARTIES
HERETO MAY HEREAFTER SPECIFY IN WRITING TO THE OTHERS:
If to Oglethorpe:
Oglethorpe Power Corporation
2100 East Exchange Place
Tucker, Georgia 30085-1349
Attention:
Vice President, Finance
Telephone:
(770) 270-7325
Telecopier:
(770) 270-7920
If to Berkshire:
Berkshire Hathaway Assurance Corporation
c/o Berkshire Hathaway Group
100 First Stamford Place
Stamford, CT 06902
Attn:
General Counsel
Facsimile No.:
(203) 363 5221
with copies to:
Berkshire Hathaway Assurance Corporation
3024 Harney Street
Omaha, NE 68131
Attention:
President
Facsimile No.:
(402) 916-3237
and
Robert E. Bennett
99 Mill Lane
Norwell, MA 02061
Facsimile No.:
(781) 659-2491
Account for Payments:
Bank:
JPMorgan Chase Bank
ABA No.:
021000021
Acct No.:
747499341
Acct Name:
Berkshire Hathaway
Assurance Corporation
Reference:
98SRD102494 and
98SRD102495
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SECTION 5.08.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS,
WARRANTIES AND OBLIGATIONS CONTAINED HEREIN SHALL SURVIVE THE EXECUTION AND
DELIVERY OF THIS AGREEMENT AND THE SURETY BONDS.
SECTION 5.09.
GOVERNING LAW; JURISDICTION.
(A) THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) 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, action or other proceeding
arising out of this Agreement, the other Surety Bond Documents, or the subject