not
have reimbursed Berkshire in full in cash (or all or any part of any such
reimbursement has been avoided for any reason), Berkshire shall have the
exclusive right to decide and determine whether any claim, liability, suit or
judgment made or brought against Berkshire shall or shall not be paid,
compromised, resisted, defended, tried or appealed, and Berkshire's decision
thereon, if made in good faith, shall be final and binding upon Oglethorpe.
An
itemized statement of payments made by Berkshire that are described in
Section 2.01(b) or 2.03, certified by an officer of Berkshire, or the voucher or
vouchers for such payments, shall be prima facie evidence of the liability of
Oglethorpe, and if Oglethorpe fails to reimburse Berkshire pursuant to
Section 2.01 or 2.03 hereof upon the receipt of such statement of payments,
interest shall be computed on such amount from the date of any payment made by
Berkshire at the Default Rate.
10
ARTICLE V
MISCELLANEOUS
SECTION 5.01.
COMPUTATIONS.
ALL COMPUTATIONS OF THE PREMIUM, INTEREST AND FEES
HEREUNDER SHALL BE MADE ON THE BASIS OF THE ACTUAL NUMBER OF DAYS ELAPSED OVER A
YEAR OF 360 DAYS.
SECTION 5.02.
EXERCISE OF RIGHTS.
NO FAILURE OR DELAY ON THE PART OF BERKSHIRE
TO EXERCISE ANY RIGHT, POWER OR PRIVILEGE UNDER THIS AGREEMENT AND NO COURSE OF
DEALING BETWEEN BERKSHIRE AND OGLETHORPE OR ANY OTHER PARTY SHALL OPERATE AS A
WAIVER OF ANY SUCH RIGHT, POWER OR PRIVILEGE, NOR SHALL ANY SINGLE OR PARTIAL
EXERCISE OF ANY SUCH RIGHT, POWER OR PRIVILEGE PRECLUDE ANY OTHER OR FURTHER
EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE.
THE
RIGHTS AND REMEDIES HEREIN EXPRESSLY PROVIDED ARE CUMULATIVE AND NOT EXCLUSIVE
OF ANY RIGHTS OR REMEDIES WHICH BERKSHIRE WOULD OTHERWISE HAVE PURSUANT TO LAW
OR EQUITY.
NO NOTICE TO OR DEMAND ON ANY PARTY IN ANY CASE SHALL ENTITLE SUCH
PARTY TO ANY OTHER OR FURTHER NOTICE OR DEMAND IN SIMILAR OR OTHER
CIRCUMSTANCES, OR CONSTITUTE A WAIVER OF THE RIGHT OF THE OTHER PARTY TO ANY
OTHER OR FURTHER ACTION IN ANY CIRCUMSTANCES WITHOUT NOTICE OR DEMAND.
SECTION 5.03.
AMENDMENT AND WAIVER.
ANY PROVISION OF THIS AGREEMENT MAY BE
AMENDED, WAIVED, SUPPLEMENTED, DISCHARGED OR TERMINATED ONLY WITH THE PRIOR
WRITTEN CONSENT OF OGLETHORPE AND BERKSHIRE.
SECTION 5.04.
SUCCESSORS AND ASSIGNS; DESCRIPTIVE HEADINGS.
(A)
THIS AGREEMENT SHALL BIND, AND THE BENEFITS HEREOF SHALL
INURE TO, OGLETHORPE AND BERKSHIRE AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS;
PROVIDED THAT OGLETHORPE MAY NOT TRANSFER OR ASSIGN ANY OR ALL OF ITS RIGHTS AND
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF BERKSHIRE.
(B)
THE DESCRIPTIVE HEADINGS OF THE VARIOUS PROVISIONS OF THIS
AGREEMENT ARE INSERTED FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT BE DEEMED
TO AFFECT THE MEANING OR CONSTRUCTION OF ANY OF THE PROVISIONS HEREOF.
SECTION 5.05.
OTHER SURETIES.
IF BERKSHIRE SHALL PROCURE ANY OTHER SURETY TO
REINSURE ANY PORTION OF ITS EXPOSURE UNDER ANY OF THE SURETY BONDS, THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF SUCH OTHER SURETY,