Default by VENDOR. (a) Vendor has specifically induced Nasdaq to enter into this Agreement based on the representations and undertakings of Vendor contained herein. Strict compliance with the provisions of this Agreement is and shall be a condition precedent to Vendor's right hereunder to continue to receive the Information. Vendor expressly acknowledges and agrees that Nasdaq shall have the rights set forth in Section 8.01(b) if Nasdaq shall determine that one or more of the following events or conditions occurs or is continuing: (i) Vendor fails to pay any amounts due Nasdaq under this Agreement within thirty (30) days after the applicable due date for such amounts specified in this Agreement; (ii) any representation, warranty or certification, which is material to the Corporations for regulatory, commercial or other reasons, made by Vendor in this Agreement or in any other document furnished by Vendor in connection herewith was false or misleading, as of the time made or furnished; (iii) Vendor defaults in the performance of any of its obligations or covenants under this Agreement, or any representation, warranty or certification described in clause (ii) above becomes untrue or inaccurate, and such default, untruth or inaccuracy (if curable) continues unremedied for a period of fifteen (15) days after Nasdaq notifies Vendor thereof; provided, however, that if such default, untruth or inaccuracy cannot be remedied by Vendor in good faith and with due diligence within fifteen (15) days and the failure to so remedy within fifteen (15) days does not cause any of the Corporations to be in violation of applicable law or regulations or to otherwise materially injure any of the Corporations, then an event or condition of default under this clause (iii) will not be considered to exist or to have occurred for so long as Vendor commences such actions as are necessary to remedy such default, untruth or inaccuracy within such fifteen (15) day period and thereafter diligently pursues such actions to remedy such default, truth or inaccuracy; (iv) Vendor proceeds with a proposed action in default of its obligations or covenants under this Agreement, or in breach of any representation, warranty or certification, which is material to the Corporations for regulatory, commercial or other reasons, made by Vendor in connection herewith, after Nasdaq has notified Vendor that such proposed action would constitute a default hereunder; (v) Vendor defaults (and such default is not cured within applicable grace periods) in the performance of any of its obligations under any other agreement between Vendor and one or more of the Corporations relating to the distribution of information provided by the Corporations; (vi) Vendor (A) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (B) makes a general assignment for the benefit of its creditors, (C) institutes proceedings under the United States Bankruptcy Code, (D) files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts, (E) fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code, or the board of directors of Vendor takes any action for the purpose of effecting any of the foregoing; (vii) a proceeding or case of the type described in clause (vi) above is commenced, without the application or consent of Vendor, in any court of competent jurisdiction, and such proceeding or case is entered and continues unstayed and in effect for a period of sixty (60) days, or an order for relief against Vendor is entered in an involuntary case under the Bankruptcy Code; or (viii) Vendor admits in writing its inability to pay its debts as they become due. (b) Upon the occurrence of any of the events or conditions described in subsection (a) above, Nasdaq shall have the immediate right, in its sole discretion, to take one or more of the following actions: (i) to terminate this Agreement and Vendor's right to receive the Information hereunder; (ii) to suspend transmission of the Information to Vendor; (iii) to demand arbitration under Section 10.05; or (iv) to pursue such other remedies, consistent with Section 10.05 and Section 10.07, as it may be entitled by virtue of or under this Agreement, before regulatory authorities, or at law or in equity.
Appears in 1 contract
Samples: Vendor Agreement for Level 1 Service and Last Sale Service (Aether Systems Inc)
Default by VENDOR. (a) Vendor has specifically induced Nasdaq to enter into this Agreement based on the representations and undertakings of Vendor contained herein. Strict compliance with the provisions of this Agreement is and shall be a condition precedent to Vendor's right hereunder to continue to receive the Information. Vendor expressly acknowledges and agrees that Nasdaq shall have the rights set forth in Section 8.01(b) if Nasdaq shall determine that one or more of the The following events or conditions occurs or is continuingshall constitute events of default by Vendor:
(i) Vendor If Vendor, in any material respect: violates or breaches, or fails fully and completely to pay observe, keep, satisfy, perform or comply with any amounts due Nasdaq terms, covenants, conditions, requirements, provisions, duties and obligations under this Agreement other than the breaches described in clauses (ii), (iii) (iv), (v) and (vi) below, and does not cure or remedy such failure to perform within thirty ten (3010) days after the applicable due date for receipt of written notice from SBCW with respect thereto (which notice shall describe with reasonable particularity such amounts specified in this Agreement;
(ii) any representation, warranty or certification, which is material to the Corporations for regulatory, commercial or other reasons, made by Vendor in this Agreement or in any other document furnished by Vendor in connection herewith was false or misleading, as of the time made or furnished;
(iii) Vendor defaults in the performance of any of its obligations or covenants under this Agreement, or any representation, warranty or certification described in clause (ii) above becomes untrue or inaccurate, and such default, untruth or inaccuracy (if curable) continues unremedied for a period of fifteen (15) days after Nasdaq notifies Vendor thereoffailure); provided, however, that if such failure to perform shall necessitate longer to cure than such ten (10) day period, and SBCW does not unreasonably object to an extension, then such cure period shall be extended for such period of time as is reasonably necessary to cure such failure to perform, provided, further, that Vendor commences such cure within ten (10) days after receipt of written notice from SBCW and thereafter proceeds diligently and in good faith to cure the default within thirty (30) days from the date of receipt of notice of such default;
(ii) If, untruth (x) in any consecutive twelve (12) month period, SBCW becomes entitled to the Liquidated Damages pursuant to Section 11.01(b) in excess of $200,000 in respect of any BTS Sites or inaccuracy cannot be remedied (y) SBCW becomes entitled to Liquidated Damages pursuant to Section 11.01(b) in the amount of $15,000 in respect of any BTS Site; 48 43
(iii) If any representation or warranty made by Vendor in good faith and with due diligence within fifteen this Agreement or the BTS Sublease was false or misleading in any material respect on the date as of which made (15) days and the failure to so remedy within fifteen (15) days does not cause any of the Corporations to be in violation of applicable law or regulations or to otherwise materially injure any of the Corporations, then an event or condition of default under this clause (iii) will not be considered to exist or to have occurred for so long as Vendor commences such actions as are necessary to remedy such default, untruth or inaccuracy within such fifteen (15) day period and thereafter diligently pursues such actions to remedy such default, truth or inaccuracydeemed made);
(iv) if Vendor proceeds with a proposed action in default breaches the provisions of its obligations or covenants under this Agreement, or in breach of any representation, warranty or certification, which is material to the Corporations for regulatory, commercial or other reasons, made by Vendor in connection herewith, after Nasdaq has notified Vendor that such proposed action would constitute a default hereunderSection 5.01(a);
(v) if Vendor defaults (and such default is not cured within applicable grace periods) in breaches the performance provisions of any of its obligations under any other agreement between Vendor and one or more of the Corporations relating to the distribution of information provided by the CorporationsSection 5.02 hereof;
(vi) Vendor If (A) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself receiver is appointed to take possession or control of all or substantially all of Vendor's assets, and such receiver or trustee shall fail, within sixty (60) days of appointment to affirm or assume this Agreement, to provide adequate assurance as to its ability to perform all of the terms and conditions of this Agreement as a substantial part receiver or trustee of its propertyVendor, to cure all other events of default and to pay all damages incurred by SBCW as a result of all events of default; (B) makes a general assignment for the benefit of its creditorsVendor shall commence any voluntary proceeding under present or future Federal bankruptcy laws or under any other bankruptcy, insolvency or other laws respecting debtor's rights; or (C) institutes proceedings under the United States Bankruptcy Code, (D) files a petition seeking to take advantage of any an "order for relief" or other law relating to bankruptcy, insolvency, reorganization, winding-up, judgment or composition or readjustment of debts, (E) fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code, or the board of directors of Vendor takes any action for the purpose of effecting any of the foregoing;
(vii) a proceeding or case of the type described in clause (vi) above is commenced, without the application or consent of Vendor, in decree by any court of competent jurisdiction, and such proceeding or case jurisdiction is entered against Vendor in any involuntary proceeding against Vendor under present or future Federal bankruptcy laws or under any other bankruptcy, insolvency or other laws respecting debtor's rights, or any such involuntary proceeding shall be commenced against Vendor and continues unstayed and in effect shall continue for a period of sixty forty-five (6045) days, or an order for relief against Vendor is entered in an involuntary case under the Bankruptcy Code; or
(viii) Vendor admits in writing its inability to pay its debts as they become duedays after commencement without dismissal.
(b) Upon the occurrence of any event of the events or conditions described in subsection (a) abovedefault by Vendor under this Agreement, Nasdaq shall have the immediate right, in its sole discretion, to take SBCW may pursue any and all rights and remedies available under applicable law and any one or more of the following actions: rights and remedies, separately or concurrently or in any combination, without further notice or demand whatsoever:
(i) upon the occurrence of any event of default with respect to a BTS Site under Sections 13.01(a)(i), (ii)(y), (iii), (iv) or (v), SBCW may, at its option, either (x) suspend its obligations with respect to such BTS Site until such default is cured by Vendor or terminate its obligations to engage Vendor to perform Services in respect of such BTS Site pursuant to Section 3.10, by giving Vendor written notice thereof, and thereafter SBCW shall have the right to engage any Person to perform Services in respect of such BTS Site or an alternative site within the applicable SARF or (y) terminate this Agreement and Vendor's as to such BTS Site by giving Vendor written notice of termination and, thereafter SBCW shall have the right to receive engage any Person to perform Services in respect to such BTS Site or an alternative site within the Information hereunderapplicable SARF; or
(ii) upon the occurrence of any event of default: (A) under Sections 13.01 (a)(ii)(x) or (vi), or (B) with respect to suspend transmission more than ten percent (10%) or more of the Information proposed cell sites accepted by SBCW pursuant to Vendor; Section 5.01 during any twelve (12) consecutive month period under Sections 13.01(a)(i), (ii)(y), (iii) to demand arbitration under Section 10.05; or ), (iv) or (v), SBCW may, at its option, either: (x) suspend its obligations until such default is cured by Vendor or 49 44 terminate its obligations to pursue such other remediesengage Vendor to perform Services (including, consistent without limitation, with respect to any or all BTS Sites) pursuant to Section 10.05 3.10, by giving Vendor written notice thereof, and Section 10.07thereafter SBCW shall have the right to engage any Person to perform Services on any or all BTS Sites or (y) terminate this Agreement in its entirety by giving Vendor written notice of termination, and this Agreement shall be terminated as it may be entitled to all BTS Sites at the time designated by virtue SBCW in its notice of termination to Vendor.
(c) SBCW will have the right to recover from Vendor all costs and expenses incurred by SBCW in enforcing its rights and remedies hereunder, including attorneys' fees and expenses paid or under this Agreementincurred by SBCW in connection with enforcement measures, before regulatory authorities, or including the filing of any action at law or in equityequity or the filing of any appeal of any decision or judgment with respect to any such action. Notwithstanding anything to the contrary contained herein, no party shall be liable to the others for indirect, incidental, special or consequential damages, including but not limited to lost profits, however arising, even if a party has been advised of the possibility of such damages.
(d) The termination of this Agreement by SBCW by reason of default by Vendor shall not relieve Vendor of any of its duties and obligations theretofore accrued under this Agreement prior to the effective date of such termination or any representations or warranties theretofore made by Vendor.
Appears in 1 contract
Samples: Agreement to Build to Suit (Spectrasite Holdings Inc)
Default by VENDOR. (a) Vendor has specifically induced Nasdaq to enter into this Agreement based on the representations and undertakings of Vendor contained herein. Strict compliance with the provisions of this Agreement is and shall be a condition precedent to Vendor's right hereunder to continue to receive the Information. Vendor expressly acknowledges and agrees that Nasdaq shall have the rights set forth in Section 8.01(b) if Nasdaq shall determine that one or more of the The following events or conditions occurs or is continuingshall constitute events of default by Vendor:
(i) Vendor If Vendor, in any material respect: violates or breaches, or fails fully and completely to pay observe, keep, satisfy, perform or comply with any amounts due Nasdaq terms, covenants, conditions, requirements, provisions, duties and obligations under this Agreement other than the breaches described in clauses (ii), (iii) (iv), (v) and (vi) below, and does not cure or remedy such failure to perform within thirty ten (3010) days after the applicable due date for receipt of written notice from SBCW with respect thereto (which notice shall describe with reasonable particularity such amounts specified in this Agreement;
(ii) any representation, warranty or certification, which is material to the Corporations for regulatory, commercial or other reasons, made by Vendor in this Agreement or in any other document furnished by Vendor in connection herewith was false or misleading, as of the time made or furnished;
(iii) Vendor defaults in the performance of any of its obligations or covenants under this Agreement, or any representation, warranty or certification described in clause (ii) above becomes untrue or inaccurate, and such default, untruth or inaccuracy (if curable) continues unremedied for a period of fifteen (15) days after Nasdaq notifies Vendor thereoffailure); provided, however, that if such failure to perform shall necessitate longer to cure than such ten (10) day period, and SBCW does not unreasonably object to an extension, then such cure period shall be extended for such period of time as is reasonably necessary to cure such failure to perform, provided, further, that Vendor commences such cure within ten (10) days after receipt of written notice from SBCW and thereafter proceeds diligently and in good faith to cure the default within thirty (30) days from the date of receipt of notice of such default;
(ii) If, untruth (x) in any consecutive twelve (12) month period, SBCW becomes entitled to the Liquidated Damages pursuant to Section 11.01(b) in excess of $200,000 in respect of any BTS Sites or inaccuracy cannot be remedied (y) SBCW becomes entitled to Liquidated Damages pursuant to Section 11.01(b) in the amount of $15,000 in respect of any BTS Site;
(iii) If any representation or warranty made by Vendor in good faith and with due diligence within fifteen this Agreement or the BTS Sublease was false or misleading in any material respect on the date as of which made (15) days and the failure to so remedy within fifteen (15) days does not cause any of the Corporations to be in violation of applicable law or regulations or to otherwise materially injure any of the Corporations, then an event or condition of default under this clause (iii) will not be considered to exist or to have occurred for so long as Vendor commences such actions as are necessary to remedy such default, untruth or inaccuracy within such fifteen (15) day period and thereafter diligently pursues such actions to remedy such default, truth or inaccuracydeemed made);
(iv) if Vendor proceeds with a proposed action in default breaches the provisions of its obligations or covenants under this Agreement, or in breach of any representation, warranty or certification, which is material to the Corporations for regulatory, commercial or other reasons, made by Vendor in connection herewith, after Nasdaq has notified Vendor that such proposed action would constitute a default hereunderSection 5.01(a);
(v) if Vendor defaults (and such default is not cured within applicable grace periods) in breaches the performance provisions of any of its obligations under any other agreement between Vendor and one or more of the Corporations relating to the distribution of information provided by the CorporationsSection 5.02 hereof;
(vi) Vendor If (A) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself receiver is appointed to take possession or control of all or substantially all of Vendor's assets, and such receiver or trustee shall fail, within sixty (60) days of appointment to affirm or assume this Agreement, to provide adequate assurance as to its ability to perform all of the terms and conditions of this Agreement as a substantial part receiver or trustee of its propertyVendor, to cure all other events of default and to pay all damages incurred by SBCW as a result of all events of default; (B) makes a general assignment for the benefit of its creditorsVendor shall commence any voluntary proceeding under present or future Federal bankruptcy laws or under any other bankruptcy, insolvency or other laws respecting debtor's rights; or (C) institutes proceedings under the United States Bankruptcy Code, (D) files a petition seeking to take advantage of any an "order for relief" or other law relating to bankruptcy, insolvency, reorganization, winding-up, judgment or composition or readjustment of debts, (E) fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code, or the board of directors of Vendor takes any action for the purpose of effecting any of the foregoing;
(vii) a proceeding or case of the type described in clause (vi) above is commenced, without the application or consent of Vendor, in decree by any court of competent jurisdiction, and such proceeding or case jurisdiction is entered against Vendor in any involuntary proceeding against Vendor under present or future Federal bankruptcy laws or under any other bankruptcy, insolvency or other laws respecting debtor's rights, or any such involuntary proceeding shall be commenced against Vendor and continues unstayed and in effect shall continue for a period of sixty forty-five (6045) days, or an order for relief against Vendor is entered in an involuntary case under the Bankruptcy Code; or
(viii) Vendor admits in writing its inability to pay its debts as they become duedays after commencement without dismissal.
(b) Upon the occurrence of any event of the events or conditions described in subsection (a) abovedefault by Vendor under this Agreement, Nasdaq shall have the immediate right, in its sole discretion, to take SBCW may pursue any and all rights and remedies available under applicable law and any one or more of the following actions: rights and remedies, separately or concurrently or in any combination, without further notice or demand whatsoever:
(i) upon the occurrence of any event of default with respect to a BTS Site under Sections 13.01(a)(i), (ii)(y), (iii), (iv) or (v), SBCW may, at its option, either (x) suspend its obligations with respect to such BTS Site until such default is cured by Vendor or terminate its obligations to engage Vendor to perform Services in respect of such BTS Site pursuant to Section 3.10, by giving Vendor written notice thereof, and thereafter SBCW shall have the right to engage any Person to perform Services in respect of such BTS Site or an alternative site within the applicable SARF or (y) terminate this Agreement and Vendor's as to such BTS Site by giving Vendor written notice of termination and, thereafter SBCW shall have the right to receive engage any Person to perform Services in respect to such BTS Site or an alternative site within the Information hereunderapplicable SARF; or
(ii) upon the occurrence of any event of default: (A) under Sections 13.01 (a)(ii)(x) or (vi), or (B) with respect to suspend transmission more than ten percent (10%) or more of the Information proposed cell sites accepted by SBCW pursuant to Vendor; Section 5.01 during any twelve (12) consecutive month period under Sections 13.01(a)(i), (ii)(y), (iii) to demand arbitration under Section 10.05; or ), (iv) or (v), SBCW may, at its option, either: (x) suspend its obligations until such default is cured by Vendor or terminate its obligations to pursue such other remediesengage Vendor to perform Services (including, consistent without limitation, with respect to any or all BTS Sites) pursuant to Section 10.05 3.10, by giving Vendor written notice thereof, and Section 10.07thereafter SBCW shall have the right to engage any Person to perform Services on any or all BTS Sites or (y) terminate this Agreement in its entirety by giving Vendor written notice of termination, and this Agreement shall be terminated as it may be entitled to all BTS Sites at the time designated by virtue SBCW in its notice of termination to Vendor.
(c) SBCW will have the right to recover from Vendor all costs and expenses incurred by SBCW in enforcing its rights and remedies hereunder, including attorneys' fees and expenses paid or under this Agreementincurred by SBCW in connection with enforcement measures, before regulatory authorities, or including the filing of any action at law or in equityequity or the filing of any appeal of any decision or judgment with respect to any such action.
(d) The termination of this Agreement by SBCW by reason of default by Vendor shall not relieve Vendor of any of its duties and obligations theretofore accrued under this Agreement prior to the effective date of such termination or any representations or warranties theretofore made by Vendor.
Appears in 1 contract
Default by VENDOR. (a) Vendor has specifically induced Nasdaq to enter into this Agreement based on the representations and undertakings of Vendor contained herein. Strict compliance with the provisions of this Agreement is and shall be a condition precedent to Vendor's right hereunder to continue to receive the Information. Vendor expressly acknowledges and agrees that Nasdaq shall have the rights set forth in Section 8.01(b) if Nasdaq shall determine that one or more of the The following events or conditions occurs or is continuingshall constitute ----------------- events of default by Vendor:
(i) Vendor If Vendor, in any material respect: violates or breaches, or fails fully and completely to pay observe, keep, satisfy, perform or comply with any amounts due Nasdaq terms, covenants, conditions, requirements, provisions, duties and obligations under this Agreement Agreement, and does not cure or remedy such failure to perform within thirty (30) days after the applicable due date receipt of written notice from BMI with respect thereto (which notice shall describe with reasonable particularity such failure); provided, however, that, if such failure to perform shall necessitate longer to cure than such thirty (30) day period, and BMI does not unreasonably object to an extension, then such cure period shall be extended for such amounts specified period of time as is reasonably necessary to cure such failure to perform, provided, further, that Vendor commences such cure within thirty (30) days after receipt of written notice from BMI and thereafter proceeds diligently and in this Agreement;good faith to cure the default; or
(ii) If, in any representationconsecutive twelve-month period, warranty or certification, which is material (x) BMI becomes entitled to the Corporations for regulatory, commercial Liquidated Damages pursuant to Section 12.01(b) in excess of $200,000 in respect of any BTS Sites or other reasons, (y) BMI becomes entitled to Liquidated Damages pursuant to Section 12.01(b) in the amount of $15,000 in respect of any BTS Site; or
(iii) if any representation or warranty made by Vendor in this Agreement or in any other document furnished by Vendor in connection herewith the Sublease was false or misleading, misleading in any material respect on the date as of the time which made (or furnished;deemed made); or
(iiiiv) if Vendor defaults in fails to comply with the performance provisions of any Section 5.01 for at least forty-five (45) days; or
(v) If (A) a trustee or receiver is appointed to take possession or control of its obligations all or covenants under substantially all of Vendor's assets, and such receiver or trustee shall fail, within sixty (60) days of appointment, to affirm or assume this Agreement, to provide adequate assurance as to its ability to perform all of the terms and conditions of this Agreement as a receiver or trustee of Vendor, to cure all other events of default, and to pay all damages incurred by BMI as a result of all events of default; (B) Vendor shall commence any voluntary proceeding under present or future Federal bankruptcy laws or under any other bankruptcy, insolvency or other laws respecting debtor's rights; or (C) an "order for relief" or other judgment or decree by any court of competent jurisdiction is entered against Vendor in any involuntary proceeding against Vendor under present or future Federal bankruptcy laws or under any other bankruptcy, insolvency or other laws respecting debtor's rights, or any representation, warranty or certification described in clause (ii) above becomes untrue or inaccurate, such involuntary proceeding shall be commenced against Vendor and such default, untruth or inaccuracy (if curable) continues unremedied shall continue for a period of fifteen forty-five (1545) days after Nasdaq notifies Vendor thereof; provided, however, that if such default, untruth or inaccuracy cannot be remedied by Vendor in good faith and with due diligence within fifteen (15) days and the failure to so remedy within fifteen (15) days does not cause any of the Corporations to be in violation of applicable law or regulations or to otherwise materially injure any of the Corporations, then an event or condition of default under this clause (iii) will not be considered to exist or to have occurred for so long as Vendor commences such actions as are necessary to remedy such default, untruth or inaccuracy within such fifteen (15) day period and thereafter diligently pursues such actions to remedy such default, truth or inaccuracy;
(iv) Vendor proceeds with a proposed action in default of its obligations or covenants under this Agreement, or in breach of any representation, warranty or certification, which is material to the Corporations for regulatory, commercial or other reasons, made by Vendor in connection herewith, after Nasdaq has notified Vendor that such proposed action would constitute a default hereunder;
(v) Vendor defaults (and such default is not cured within applicable grace periods) in the performance of any of its obligations under any other agreement between Vendor and one or more of the Corporations relating to the distribution of information provided by the Corporations;
(vi) Vendor (A) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (B) makes a general assignment for the benefit of its creditors, (C) institutes proceedings under the United States Bankruptcy Code, (D) files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts, (E) fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code, or the board of directors of Vendor takes any action for the purpose of effecting any of the foregoing;
(vii) a proceeding or case of the type described in clause (vi) above is commenced, commencement without the application or consent of Vendor, in any court of competent jurisdiction, and such proceeding or case is entered and continues unstayed and in effect for a period of sixty (60) days, or an order for relief against Vendor is entered in an involuntary case under the Bankruptcy Code; or
(viii) Vendor admits in writing its inability to pay its debts as they become duedismissal.
(b) Upon the occurrence of any event of the events or conditions described in subsection (a) abovedefault by Vendor under this Agreement, Nasdaq shall have the immediate right, in its sole discretion, to take BMI may pursue any and all rights and remedies available under applicable law and any one or more of the following actions: rights and remedies, separately or concurrently or in any combination, without further notice or demand whatsoever:
(i) upon the occurrence of any event of default with respect to a BTS Site under Sections 14.01(a)(i), (ii)(y), (iii) or (iv), BMI may, at its option, either (x) suspend its obligations until such default is cured by Vendor or terminate its obligations to (1) exclusively engage Vendor to perform Services in respect of such BTS Site pursuant to Section 3.09, and/or (2) offer Vendor the opportunity to perform the Colocation Services in respect of such BTS Site as provided in Section 9.02(b), by giving Vendor written notice thereof, and thereafter BMI shall have the right to engage any Person to perform Services and Colocation Services in respect of such BTS Site or (y) terminate this Agreement and Vendor's right as to receive such BTS Site by giving Vendor written notice of termination, it being understood that in the Information hereundercase of either clause (x) or clause (y), such BTS Site shall be deemed a Qualifying Site; or
(ii) upon the occurrence of any event of default: (A) under Sections 14.01(a)(ii)(x) or (v), or (B) with respect to suspend transmission more than ten percent (10%) or more of the Information proposed cell sites accepted by BMI pursuant to Vendor; Section 5.01 during any twelve (12) consecutive month period under Sections 14.01(a)(i), (ii)(y), (iii) to demand arbitration under Section 10.05; or (iv), BMI may, at its option, either: (x) suspend its obligations until such default is cured by Vendor or terminate its obligations to pursue such other remedies(1) exclusively engage Vendor to perform Services in respect of any or all BTS Sites pursuant to Section 3.09, consistent and/or (2) offer Vendor the opportunity to perform the Colocation Services in respect of any or all BTS Sites as provided in Section 9.02(b), by giving Vendor written notice thereof, and thereafter BMI shall have the right to engage any Person to perform Services and Colocation Services on any or all BTS Sites or (y) terminate this Agreement in its entirety by giving Vendor written notice of termination, and this Agreement shall be terminated as to all BTS Sites at the time designated by BMI in its notice of termination to Vendor.
(c) BMI will have the right to recover from Vendor all costs and expenses incurred by BMI in enforcing its rights and remedies hereunder, including attorneys' fees and expenses paid or incurred by BMI in connection with Section 10.05 and Section 10.07enforcement measures, as it may be entitled by virtue including the filing of or under this Agreement, before regulatory authorities, or any action at law or in equityequity or the filing of any appeal of any decision or judgment with respect to any such action.
(d) The termination of this Agreement by BMI by reason of default by Vendor shall not relieve Vendor of any of its duties and obligations theretofore accrued under this Agreement prior to the effective date of such termination.
Appears in 1 contract
Samples: Agreement to Build to Suit (Crown Castle International Corp)
