Events of Default and Termination. 13.1 If: (a) the Customer fails to make any payment when due under this Agreement or to observe or perform any other provision of this Agreement and such failure continues for three Business Days after RBCIS gives notice of non- performance; (b) any representation or warranty made or given or deemed to be made or given by the Customer under this Agreement proves to have been false or misleading in any material respect as at the time it was made or given or deemed made or given; (c) it becomes unlawful for RBCIS to provide FX Services or providing FX Services would cause RBCIS to be in breach of Applicable Regulations or RBCIS is no longer carrying on the business of providing FX Services; (d) any Force Majeure Event prevents RBCIS from providing FX Services for a period of more than fourteen (14) consecutive days; (e) the Customer: (i) becomes unable to pay its debts when due; (ii) enters into liquidation (except for the purposes of a solvent amalgamation or reconstruction); (iii) makes an arrangement with its creditors; (iv) becomes subject to an administration order, or a receiver or administrative receiver is appointed over all or any of its assets or takes or suffers to be taken any similar action in consequence of a debt; or (v) is dissolved; or (vi) any procedure equivalent to any of the above occurs in any jurisdiction in respect of the Customer. The foregoing shall not apply during any period in which a regulatory agency having supervisory responsibility over a party is in control of that party or of its assets, pursuant to the laws of the jurisdiction applicable to that party. (f) RBCIS is the Custodian and either RBCIS or the Customer gives notice to the other to terminate the custodian agreement between them, then RBCIS may exercise its rights under Section 13.2 below, except that, if so specified by RBCIS in writing in the case of the occurrence of any Event of Default specified in paragraph (e) of this Section (each a “Bankruptcy Default”), the provisions of Section 13.3 shall apply. 13.2 Subject to Section 13.3 below, at any time following the occurrence of an Event of Default, RBCIS may, by notice to the Customer, specify a day (the “Early Termination Date”) for the termination and liquidation of the FX Transactions in accordance with the provisions of Section 13.4 below. 13.3 Unless RBCIS specifies otherwise, the date of the occurrence of any Bankruptcy Default shall automatically constitute an Early Termination Date without the need for further notice by RBCIS and the provisions of Section 13.4 shall then apply. 13.4 Upon the occurrence of an Early Termination Date: (a) neither party shall be obliged to make any further payments or deliveries under any FX Transactions which would, but for this provision, have fallen due for performance on or after the Early Termination Date and such obligations shall be satisfied by settlement (whether by payment, set-off or otherwise) of the Termination Amount; (b) RBCIS shall (on, or as soon as reasonably practicable after, the Early Termination Date) determine (discounting if appropriate), in respect of each FX Transaction referred to in paragraph (a) of this Section, its total cost, loss or, as the case may be, gain, in each case expressed in the currency specified by RBCIS as such in writing or, failing any such specification, the lawful currency of Canada (the "Base Currency") (and, if appropriate, including any loss of bargain, cost of funding or, without duplication, cost, loss or, as the case may be, gain as a result of the termination, liquidation, obtaining, performing or re-establishing of any hedge or related trading position) as a result of the termination, pursuant to this Agreement, of each payment or delivery which would otherwise have been required to be made under such FX Transaction (assuming satisfaction of each applicable condition precedent and having due regard, if appropriate, to such market quotations published on, or official settlement prices set by the relevant market as may be available on, or immediately preceding, the date of calculation); and (c) RBCIS shall treat each cost or loss to RBCIS, determined above, as a positive amount and each gain by RBCIS, so determined, as a negative amount and aggregate all of such amounts to produce a single, net positive or negative amount, denominated in the Base Currency (the "Termination Amount"). 13.5 If the Termination Amount determined pursuant to Section 13.4 above is a positive amount, the Customer shall pay it to RBCIS and if it is a negative amount, RBCIS shall pay it to the Customer. RBCIS will notify the Customer of the Termination Amount, and by whom it is payable, promptly after the calculation of such amount. 13.6 The Termination Amount shall be paid in the Base Currency by the close of business on the Business Day following RBCIS notifying the Customer of the Termination Amount under Section 13.5 above. Any Termination Amount not paid on the due date shall be treated as an unpaid amount and bear interest, at the rate as reasonably determined by RBCIS to be the cost of funding such overdue amount in addition to any late payment interest it may be entitled to charge pursuant to Applicable Regulations. Interest will accrue on a daily basis and will be due and payable immediately by the Customer as a separate debt. 13.7 For the purposes of any calculation hereunder, RBCIS may convert amounts denominated in any other currency into the Base Currency at such rate prevailing at the time of the calculation as RBCIS shall reasonably select. 13.8 Unless or until an Early Termination Date has occurred or has been effectively set, RBCIS shall not be obliged to make any payment or delivery scheduled to be made by RBCIS under a FX Transaction for as long as an Event of Default or a potential Event of Default with respect to the Customer has occurred and is continuing. 13.9 RBCIS’ rights under this Section shall be in addition to, and not in limitation or exclusion of, any other rights which RBCIS may have (whether by agreement, operation of law or otherwise). 13.10 This Agreement, the particular terms applicable to each FX Transaction, and all amendments to any of them shall together constitute a single agreement between RBCIS and the Customer. RBCIS and the Customer each acknowledge that all FX Transactions entered into on or after the date this Agreement takes effect are entered into in reliance upon the fact that the Agreement and all such terms constitute a single agreement between RBCIS and the Customer. 13.11 Either party may terminate this Agreement by giving thirty (30) days written notice of termination to the other. Upon termination of this Agreement, all amounts payable by the Customer to RBCIS will become immediately due and payable. 13.12 Any FX Transaction executed between the parties under this Agreement prior to termination shall be executed or completed notwithstanding such termination unless the Customer otherwise instructs RBCIS in writing. 13.13 The provisions of Sections 4, 5, 8, 12, 14 and 15.11 of this Agreement shall survive termination of this Agreement.
Appears in 2 contracts
Samples: Foreign Exchange Services Agreement, Fx Services Agreement
Events of Default and Termination. 13.1 If:
(a) the Customer fails to make any payment when due under this Agreement or to observe or perform any other provision 12.1 A material breach of this Agreement by the Lessee shall constitute an "Event of Default" under this Agreement. Without limiting the generality of the foregoing provision, the Parties agree that the following cases are of essential interests for the Lessor, and such failure continues for three Business Days after RBCIS gives notice of non- performance;
(b) any representation or warranty made or given or shall be deemed to be made or given by the Customer constitute an Event of Default under this Agreement proves Agreement:
12.1.1 The Lessee fails to have been false or misleading in any material respect as at pay the time it was made or given or deemed made or given;Outstanding Amounts, when they fall due pursuant to this Agreement; and/or
(c) it becomes unlawful for RBCIS to provide FX Services or providing FX Services would cause RBCIS to be 12.1.2 The Lessee is in breach of Applicable Regulations or RBCIS is no longer carrying on the business provisions under Article 6 and Article 11 of providing FX Services;this Agreement; and/or
(d) any Force Majeure Event prevents RBCIS from providing FX Services for a period of more than fourteen (14) consecutive days;
(e) the Customer: (i) becomes unable to pay its debts when due; (ii) enters into liquidation (except for the purposes of a solvent amalgamation or reconstruction); (iii) makes an arrangement with its creditors; (iv) becomes subject to an administration order, or a receiver or administrative receiver is appointed over all or any of its assets or takes or suffers to be taken any similar action in consequence of a debt; or (v) is dissolved; or (vi) any procedure equivalent to any of the above occurs in any jurisdiction in respect of the Customer. 12.1.3 The foregoing shall not apply during any period in which a regulatory agency having supervisory responsibility over a party Lessee is in control of default under any other agreement that party or of its assets, pursuant to the laws of Lessee may have entered into with the jurisdiction applicable to that partyLessor.
(f) RBCIS is the Custodian and either RBCIS or the Customer gives notice to the other to terminate the custodian agreement between them, then RBCIS may exercise its rights under Section 13.2 below, except that, if so specified by RBCIS in writing in the 12.2 In case of the occurrence of any Event of Default specified in paragraph (e) of this Section (each a “Bankruptcy Default”), the provisions of Section 13.3 shall apply.
13.2 Subject to Section 13.3 below, at any time following the occurrence of an Event of Default, RBCIS may, by the Lessor shall send a written rectification notice to the Customer, specify a day (the “Early Termination DateRectification Notice”) for to the termination and liquidation Lessee requesting the immediate rectification of the FX Transactions Event of Default. The Rectification Notice shall also include any Penalty applied in accordance relation to the breach, as well as the value of other overdue amounts at the date (jointly the Overdue Amounts). The Lessor shall also apply the relevant Late Payment Interest on such Overdue Amounts pursuant to this Agreement.
12.3 If within a period of 20 (twenty) days from the Rectification Notice the Lessee fails to comply with the provisions Rectification Notice, or fails to offer an adequate compensation acceptable to the Lessor, if the Event of Section 13.4 belowDefault is impossible to be cured, the Lessor is entitled to terminate this Agreement by Notice to the Lessee (the “Termination Notice”).
13.3 Unless RBCIS specifies otherwise, 12.4 The Termination Notice shall also include the date of the occurrence of any Bankruptcy Default shall automatically constitute an Early Termination Date without the need for further notice by RBCIS and the provisions of Section 13.4 shall then apply.
13.4 Upon the occurrence of an Early Termination Date:
(a) neither party shall be obliged to make any further payments or deliveries under any FX Transactions which would, but for this provision, have fallen due for performance on or after the Early Termination Date and such obligations shall be satisfied by settlement (whether by payment, set-off or otherwise) value of the Termination Amount;Penalty applied by the Lessor, as well as the value of the other Overdue Amounts at that date (jointly the Overdue Amounts). The Lessor shall apply the relevant Late Payment Interest on such Outstanding Amounts pursuant to this Agreement.
12.5 A Termination Notice shall be issued by the Lessor not later than 7 (bseven) RBCIS shall (on, or as soon as reasonably practicable afterdays before the start of the repossession procedures pursuant to Article 13; unless within said period the Lessee voluntarily pays all of the Outstanding Amounts and accrued Late Payment Interest, the Early Termination Date) determine (discounting if appropriate), in respect Notice shall have the effect of each FX Transaction referred to in paragraph (a) of terminating this Section, its total cost, loss Agreement immediately or, as the case may be, gain, in each case expressed in the currency specified by RBCIS as such in writing or, failing any such specification, the lawful currency of Canada (the "Base Currency") (and, if appropriate, including by any loss of bargainlater date specified in the Termination Notice.
12.6 Without prejudice to the foregoing, cost of funding or, without duplication, cost, loss or, as the case Parties explicitly agree that the Lessor may be, gain as immediately submit a result of the termination, liquidation, obtaining, performing or re-establishing of any hedge or related trading position) as a result of the terminationTermination Notice, pursuant to this Agreement, of each payment or delivery which would otherwise have been required to be made under such FX Transaction (assuming satisfaction of each applicable condition precedent and having due regard, if appropriate, to such market quotations published on, or official settlement prices set in case of:
12.6.1 refusal by the Lessee to accept the takeover of the Vehicle pursuant to Article 5 or incompliance by the Lessee with any other action stipulated in Article 5; or
12.6.2 the transfer of the title to the Vehicle, from the Seller to the Lessor, has not been duly registered with the relevant market as may be available onauthorities pursuant to the law, or immediately precedingfor any reason not attributable to the Lessor, within 10 (ten) days from the date Signing Date of calculation); and
(c) RBCIS shall treat each cost or loss to RBCIS, determined above, as a positive amount and each gain by RBCIS, so determined, as a negative amount and aggregate all of such amounts to produce a single, net positive or negative amount, denominated in the Base Currency (the "Termination Amount")this Agreement.
13.5 If 12.6.3 the Termination Amount determined pursuant Lessee has any court proceedings open against him that could lead to Section 13.4 above debt enforcement against the Lessee or the Lessee is declared bankrupt by the competent court; or;
12.6.4 a positive amount, the Customer shall pay it to RBCIS and request for liquidation (if it is a negative amount, RBCIS shall pay it legal entity) has been filed in relation to the Customer. RBCIS will notify Lessee, or the Customer of Lessee is subject to mandatory enforcement procedures;
12.6.5 the Termination Amount, and by whom it is payable, promptly after the calculation of such amount.
13.6 The Termination Amount shall be paid in the Base Currency by the close of business on the Business Day following RBCIS notifying the Customer of the Termination Amount under Section 13.5 above. Any Termination Amount not paid on the due date shall be treated as an unpaid amount and bear interest, at the rate as reasonably determined by RBCIS to be the cost of funding such overdue amount in addition to any late payment interest it may be entitled to charge pursuant to Applicable Regulations. Interest will accrue on a daily basis and will be due and payable immediately by the Customer as a separate debt.
13.7 For the purposes of any calculation hereunder, RBCIS may convert amounts denominated in any other currency into the Base Currency at such rate prevailing at the time of the calculation as RBCIS shall reasonably select.
13.8 Unless or until an Early Termination Date has occurred Lessee dies or has been effectively setannounced as incapable to act with full legal capacity, RBCIS shall not be obliged to make any payment or delivery scheduled to be made by RBCIS under a FX Transaction for as long as an Event of Default or a potential Event of Default with respect to the Customer has occurred and is continuing.
13.9 RBCIS’ rights under this Section shall be in addition to, and not in limitation or exclusion of, any other rights which RBCIS may have (whether by agreement, operation of law or otherwise).
13.10 This Agreement, the particular terms applicable to each FX Transaction, and all amendments to any of them shall together constitute a single agreement between RBCIS and the Customer. RBCIS and the Customer each acknowledge that all FX Transactions entered into on or after the date this Agreement takes effect are entered into in reliance upon the fact that the Agreement and all such terms constitute a single agreement between RBCIS and the Customer.
13.11 Either party may terminate this Agreement by giving thirty (30) days written notice of termination to the other. Upon termination of this Agreement, all amounts payable by the Customer to RBCIS will become immediately due and payable.
13.12 Any FX Transaction executed between the parties under this Agreement prior to termination shall be executed or completed notwithstanding such termination unless the Customer otherwise instructs RBCIS either of the persons mentioned in writing.
13.13 The provisions of Sections 4, 5, 8, 12, 14 and 15.11 of this Agreement shall survive termination of this Agreement.Article
Appears in 2 contracts
Samples: Financial Leasing Agreement, Financial Leasing Agreement
Events of Default and Termination. 13.1 If:
(a) the Customer fails to make any payment when due under this Agreement or to observe or perform any other provision 12.1 A material breach of this Agreement by the Lessee shall constitute an "Event of Default" under this Agreement. Without limiting the generality of the foregoing provision, the Parties agree that the following cases are of essential interests for the Lessor, and such failure continues for three Business Days after RBCIS gives notice of non- performance;
(b) any representation or warranty made or given or shall be deemed to be made or given by the Customer constitute an Event of Default under this Agreement proves Agreement:
12.1.1 The Lessee fails to have been false or misleading in any material respect as at pay the time it was made or given or deemed made or given;Outstanding Amounts, when they fall due pursuant to this Agreement; and/or
(c) it becomes unlawful for RBCIS to provide FX Services or providing FX Services would cause RBCIS to be 12.1.2 The Lessee is in breach of Applicable Regulations or RBCIS is no longer carrying on the business provisions under Article 6 and Article 11 of providing FX Services;this Agreement; and/or
(d) any Force Majeure Event prevents RBCIS from providing FX Services for a period of more than fourteen (14) consecutive days;
(e) the Customer: (i) becomes unable to pay its debts when due; (ii) enters into liquidation (except for the purposes of a solvent amalgamation or reconstruction); (iii) makes an arrangement with its creditors; (iv) becomes subject to an administration order, or a receiver or administrative receiver is appointed over all or any of its assets or takes or suffers to be taken any similar action in consequence of a debt; or (v) is dissolved; or (vi) any procedure equivalent to any of the above occurs in any jurisdiction in respect of the Customer. 12.1.3 The foregoing shall not apply during any period in which a regulatory agency having supervisory responsibility over a party Lessee is in control of default under any other agreement that party or of its assets, pursuant to the laws of Lessee may have entered into with the jurisdiction applicable to that partyLessor.
(f) RBCIS is the Custodian and either RBCIS or the Customer gives notice to the other to terminate the custodian agreement between them, then RBCIS may exercise its rights under Section 13.2 below, except that, if so specified by RBCIS in writing in the 12.2 In case of the occurrence of any Event of Default specified in paragraph (e) of this Section (each a “Bankruptcy Default”), the provisions of Section 13.3 shall apply.
13.2 Subject to Section 13.3 below, at any time following the occurrence of an Event of Default, RBCIS may, by the Lessor shall send a written rectification notice to the Customer, specify a day (the “Early Termination DateRectification Notice”) for to the termination and liquidation Lessee requesting the immediate rectification of the FX Transactions Event of Default. The Rectification Notice shall also include any Penalty applied in accordance relation to the breach, as well as the value of other overdue amounts at the date (jointly the Overdue Amounts). The Lessor shall also apply the relevant Late Payment Interest on such Overdue Amounts pursuant to this Agreement.
12.3 If within a period of 20 (twenty) days from the Rectification Notice the Lessee fails to comply with the provisions Rectification Notice, or fails to offer an adequate compensation acceptable to the Lessor, if the Event of Section 13.4 belowDefault is impossible to be cured, the Lessor is entitled to terminate this Agreement by Notice to the Lessee (the “Termination Notice”).
13.3 Unless RBCIS specifies otherwise, 12.4 The Termination Notice shall also include the date of the occurrence of any Bankruptcy Default shall automatically constitute an Early Termination Date without the need for further notice by RBCIS and the provisions of Section 13.4 shall then apply.
13.4 Upon the occurrence of an Early Termination Date:
(a) neither party shall be obliged to make any further payments or deliveries under any FX Transactions which would, but for this provision, have fallen due for performance on or after the Early Termination Date and such obligations shall be satisfied by settlement (whether by payment, set-off or otherwise) value of the Termination Amount;Penalty applied by the Lessor, as well as the value of the other Overdue Amounts at that date (jointly the Overdue Amounts). The Lessor shall apply the relevant Late Payment Interest on such Outstanding Amounts pursuant to this Agreement.
12.5 A Termination Notice shall be issued by the Lessor not later than 7 (bseven) RBCIS shall (on, or as soon as reasonably practicable afterdays before the start of the repossession procedures pursuant to Article 13; unless within said period the Lessee voluntarily pays all of the Outstanding Amounts and accrued Late Payment Interest, the Early Termination Date) determine (discounting if appropriate), in respect Notice shall have the effect of each FX Transaction referred to in paragraph (a) of terminating this Section, its total cost, loss Agreement immediately or, as the case may be, gain, in each case expressed in the currency specified by RBCIS as such in writing or, failing any such specification, the lawful currency of Canada (the "Base Currency") (and, if appropriate, including by any loss of bargain, cost of funding or, without duplication, cost, loss or, as the case may be, gain as a result of the termination, liquidation, obtaining, performing or re-establishing of any hedge or related trading position) as a result of the termination, pursuant to this Agreement, of each payment or delivery which would otherwise have been required to be made under such FX Transaction (assuming satisfaction of each applicable condition precedent and having due regard, if appropriate, to such market quotations published on, or official settlement prices set by the relevant market as may be available on, or immediately preceding, the later date of calculation); and
(c) RBCIS shall treat each cost or loss to RBCIS, determined above, as a positive amount and each gain by RBCIS, so determined, as a negative amount and aggregate all of such amounts to produce a single, net positive or negative amount, denominated specified in the Base Currency (the "Termination Amount")Notice.
13.5 If the Termination Amount determined pursuant to Section 13.4 above is a positive amount, the Customer shall pay it to RBCIS and if it is a negative amount, RBCIS shall pay it to the Customer. RBCIS will notify the Customer of the Termination Amount, and by whom it is payable, promptly after the calculation of such amount.
13.6 The Termination Amount shall be paid in the Base Currency by the close of business on the Business Day following RBCIS notifying the Customer of the Termination Amount under Section 13.5 above. Any Termination Amount not paid on the due date shall be treated as an unpaid amount and bear interest, at the rate as reasonably determined by RBCIS to be the cost of funding such overdue amount in addition to any late payment interest it may be entitled to charge pursuant to Applicable Regulations. Interest will accrue on a daily basis and will be due and payable immediately by the Customer as a separate debt.
13.7 For the purposes of any calculation hereunder, RBCIS may convert amounts denominated in any other currency into the Base Currency at such rate prevailing at the time of the calculation as RBCIS shall reasonably select.
13.8 Unless or until an Early Termination Date has occurred or has been effectively set, RBCIS shall not be obliged to make any payment or delivery scheduled to be made by RBCIS under a FX Transaction for as long as an Event of Default or a potential Event of Default with respect to the Customer has occurred and is continuing.
13.9 RBCIS’ rights under this Section shall be in addition to, and not in limitation or exclusion of, any other rights which RBCIS may have (whether by agreement, operation of law or otherwise).
13.10 This Agreement, the particular terms applicable to each FX Transaction, and all amendments to any of them shall together constitute a single agreement between RBCIS and the Customer. RBCIS and the Customer each acknowledge that all FX Transactions entered into on or after the date this Agreement takes effect are entered into in reliance upon the fact that the Agreement and all such terms constitute a single agreement between RBCIS and the Customer.
13.11 Either party may terminate this Agreement by giving thirty (30) days written notice of termination to the other. Upon termination of this Agreement, all amounts payable by the Customer to RBCIS will become immediately due and payable.
13.12 Any FX Transaction executed between the parties under this Agreement prior to termination shall be executed or completed notwithstanding such termination unless the Customer otherwise instructs RBCIS in writing.
13.13 The provisions of Sections 4, 5, 8, 12, 14 and 15.11 of this Agreement shall survive termination of this Agreement.
Appears in 2 contracts
Samples: Financial Leaseback Agreement, Financial Leasing Agreement
Events of Default and Termination. 13.1 If:
(a) the Customer fails to make any payment when due The following occurrences shall constitute events of default under this Agreement or ("Events of Default"): The failure of Purchaser to observe or perform any other provision of this Agreement and such failure continues pay the Purchase Price for three Business Days after RBCIS gives notice of non- performance;
(b) any representation or warranty made or given or deemed to be made or given all Products purchased by the Customer Purchaser under this Agreement proves to have been false or misleading Agreement, when due in any material respect as at the time it was made or given or deemed made or given;
(c) it becomes unlawful for RBCIS to provide FX Services or providing FX Services would cause RBCIS to be in breach of Applicable Regulations or RBCIS is no longer carrying on the business of providing FX Services;
(d) any Force Majeure Event prevents RBCIS from providing FX Services for a period of more than fourteen (14) consecutive days;
(e) the Customer: (i) becomes unable to pay its debts when due; (ii) enters into liquidation (except for the purposes of a solvent amalgamation or reconstruction); (iii) makes an arrangement accordance with its creditors; (iv) becomes subject to an administration order, or a receiver or administrative receiver is appointed over all or any of its assets or takes or suffers to be taken any similar action in consequence of a debt; or (v) is dissolved; or (vi) any procedure equivalent to any of the above occurs in any jurisdiction in respect of the Customer. The foregoing shall not apply during any period in which a regulatory agency having supervisory responsibility over a party is in control of that party or of its assets, pursuant to the laws of the jurisdiction applicable to that party.
(f) RBCIS is the Custodian and either RBCIS or the Customer gives notice to the other to terminate the custodian agreement between them, then RBCIS may exercise its rights under Section 13.2 below, except that, if so specified by RBCIS in writing in the case of the occurrence of any Event of Default specified in paragraph (e) of this Section (each a “Bankruptcy Default”), the provisions of Section 13.3 shall apply.
13.2 Subject this Agreement; provided that Purchaser receives notice thereof from Georal and does not cure such failure within thirty (30) business days after receipt of such notice. The breach by Georal or Purchaser or DWLD, as the case may be, of any of their respective material representations, warranties, covenants or obligations under this Agreement, provided that the breaching party receives notice thereof from the party claiming such breach and fails to Section 13.3 below, at cure any time following such breach within thirty (30) days after such notice. In the event of the occurrence of an Event of Default, RBCIS may, by notice to the Customer, specify a day (the “Early Termination Date”) for the termination and liquidation of the FX Transactions in accordance with the provisions of Section 13.4 below.
13.3 Unless RBCIS specifies otherwise, the date of the occurrence of any Bankruptcy Default shall automatically constitute an Early Termination Date without the need for further notice by RBCIS and the provisions of Section 13.4 shall then apply.
13.4 Upon the occurrence of an Early Termination Date:
(a) neither party shall be obliged to make any further payments Georal or deliveries under any FX Transactions which would, but for this provision, have fallen due for performance on Purchaser or after the Early Termination Date and such obligations shall be satisfied by settlement (whether by payment, set-off or otherwise) of the Termination Amount;
(b) RBCIS shall (on, or as soon as reasonably practicable after, the Early Termination Date) determine (discounting if appropriate), in respect of each FX Transaction referred to in paragraph (a) of this Section, its total cost, loss orDWLD, as the case may be, gain, in each case expressed in shall have the currency specified by RBCIS right to institute an action to recover any damages which may result therefrom and/or to exercise any other legal or equitable rights or remedies provided for hereunder or otherwise available under applicable law. Should any party hereto fail to cure an act of default pursuant to the terms herein within 14 days of delivery of written Notice of said default pursuant to the notice requirements as such in writing or, failing any such specificationset forth herein, the lawful currency Party in good standing may elect to terminate this agreement immediately on written notice to the defaulting party. An election of Canada (termination shall serve to cancel this agreement pursuant to the "Base Currency") (and, if appropriate, including any loss of bargain, cost of funding or, without duplication, cost, loss or, as terms set forth in this paragraph. In the case may be, gain as a result of the termination, liquidation, obtaining, performing or re-establishing event of any hedge or related trading position) as a result of the termination, pursuant to this Agreement, of each payment or delivery which would otherwise have been required to be made under such FX Transaction (assuming satisfaction of each applicable condition precedent and having due regard, if appropriate, to such market quotations published on, or official settlement prices set by the relevant market as may be available on, or immediately preceding, the date of calculation); and
(c) RBCIS shall treat each cost or loss to RBCIS, determined above, as a positive amount and each gain by RBCIS, so determined, as a negative amount and aggregate all of such amounts to produce a single, net positive or negative amount, denominated in the Base Currency (the "Termination Amount").
13.5 If the Termination Amount determined pursuant to Section 13.4 above is a positive amount, the Customer shall pay it to RBCIS and if it is a negative amount, RBCIS shall pay it to the Customer. RBCIS will notify the Customer of the Termination Amount, and by whom it is payable, promptly after the calculation of such amount.
13.6 The Termination Amount shall be paid in the Base Currency by the close of business on the Business Day following RBCIS notifying the Customer of the Termination Amount under Section 13.5 above. Any Termination Amount not paid on the due date shall be treated as an unpaid amount and bear interest, at the rate as reasonably determined by RBCIS to be the cost of funding such overdue amount in addition to any late payment interest it may be entitled to charge pursuant to Applicable Regulations. Interest will accrue on a daily basis and will be due and payable immediately by the Customer as a separate debt.
13.7 For the purposes of any calculation hereunder, RBCIS may convert amounts denominated in any other currency into the Base Currency at such rate prevailing at the time of the calculation as RBCIS shall reasonably select.
13.8 Unless or until an Early Termination Date has occurred or has been effectively set, RBCIS shall not be obliged to make any payment or delivery scheduled to be made by RBCIS under a FX Transaction for as long as an Event of Default or a potential Event of Default with respect to the Customer has occurred and is continuing.
13.9 RBCIS’ rights under this Section shall be in addition to, and not in limitation or exclusion of, any other rights which RBCIS may have (whether by agreement, operation of law or otherwise).
13.10 This Agreement, the particular terms applicable to each FX Transaction, and all amendments to any of them shall together constitute a single agreement between RBCIS and the Customer. RBCIS and the Customer each acknowledge that all FX Transactions entered into on or after the date this Agreement takes effect are entered into in reliance upon the fact that the Agreement and all such terms constitute a single agreement between RBCIS and the Customer.
13.11 Either party may terminate this Agreement by giving thirty (30) days written notice of termination to the other. Upon termination of this Agreement, whether upon the expiration of the Term or pursuant to this Chapter 10, Purchaser shall immediately discontinue all amounts payable by marketing, sales and promotional activities in connection with Products, as well as all distribution and sale of Products and all use of the Customer Patented Products, except that Purchaser shall have a period of up to RBCIS will become immediately due three (3) months after any such termination to market and payable.
13.12 Any FX Transaction executed between the parties under this Agreement sell or lease all inventory of Products and to fulfill all purchase orders therefor which were issued to Purchaser on or prior to termination the date of any such termination, provided that Purchaser fully pays the Purchase Price for such Products as provided in this Agreement. Purchaser will furnish Georal with reports of all such sales. The Parties hereto shall be executed or completed notwithstanding such termination unless settle all accounts and issue any and all payments due to any other party hereto within 60 days of the Customer otherwise instructs RBCIS in writing.
13.13 The provisions of Sections 4, 5, 8, 12, 14 and 15.11 last transaction pursuant to the terms of this Agreement shall survive Agreement. In the event of the termination of this Agreement, Georal and/or Risi shall have the right to repurchase the patents at the price established in Chapter 9 of this Agreement.
Appears in 2 contracts
Samples: Acquisition of Patent Agreement (Dataworld Solutions Inc), Acquisition of Patent Agreement (Defense Technology Systems, Inc.)
Events of Default and Termination. 13.1 If:
(a) If the Customer fails University should terminate intercollegiate football during the term hereof, the University shall have the right to make any payment when due under terminate this Agreement or upon payment to observe or perform any other provision Coach of the salary stated in paragraphs 5(a) and 5(b) payable, as provided, in equal monthly installments for the unexpired term of this Agreement and such failure continues for three Business Days after RBCIS gives notice of non- performance;Agreement.
(b) any representation or warranty made or given or deemed to be made or given by If, however, the Customer under University terminates this Agreement proves for “cause,” as defined in Paragraph 7(d) herein, no compensation whatsoever will be paid to have been false or misleading in any material respect as at the time it was made or given or deemed made or given;Coach.
(c) it becomes unlawful The University shall have the right at any time to terminate this Agreement without cause and for RBCIS its convenience prior to provide FX Services its expiration. Termination by the University without cause shall be effectuated by delivering to Coach written notice of the University’s intent to terminate this Agreement without cause, which notice shall be effective upon the earlier of the date for termination specified in the notice or providing FX Services would cause RBCIS to be in breach of Applicable Regulations or RBCIS is no longer carrying on the business of providing FX Services;
(d) any Force Majeure Event prevents RBCIS from providing FX Services for a period of more than fourteen (14) consecutive days;
days after receipt of such notice by Coach. If the University terminates this Agreement any time before December 31, 2010, without cause, the University shall pay, and Coach agrees to accept as liquidated damages, the remaining salary stated under Paragraph 5 (ea) and (b) due through the Customer: end of the year that the termination occurs, plus one hundred percent (i100%) becomes unable to pay its debts when due; of all amounts due and as set forth in Paragraph 5(a) and (ii) enters into liquidation (except b), including any annual salary increases that have occurred, which sum not be less than $1,000,000 for the purposes next full year following the termination, plus fifty percent (50%) of all amounts due and set forth in Paragraph 5(a) and (b), including any annual salary increases that have occurred, for each second and third year following the termination year in a solvent amalgamation sum not to be less than $500,000 for each second and third year following the year of termination that are payable through the Term of this Agreement or reconstruction); (iii) makes an arrangement with as may extended pursuant to Paragraph 1. Coach will be entitled to continue such benefits at Coach’s own expense as required or permitted by law, but Coach will not otherwise be entitled to any employment or other benefit described herein. The parties have bargained for and agreed to the foregoing liquidated damages provision, giving consideration to the fact that termination of this Agreement by the University without cause prior to its creditors; (iv) becomes subject expiration may cause the Coach to an administration orderlose certain benefits and incentives, supplemental compensation, or a receiver other athletically-related compensation associated with Coach’s employment at the University, which damages are extremely difficult to determine with certainty or administrative receiver is appointed over all fairly or any adequately. The parties further agree that the payment of its assets or takes or suffers such liquidated damages by the University and acceptance thereof by the Coach shall constitute adequate and reasonable compensation to be taken any similar action in consequence the Coach for the damages and injuries suffered by the Coach because of a debt; or (v) is dissolved; or (vi) any procedure equivalent to any of such termination by the above occurs in any jurisdiction in respect of the CustomerUniversity. The foregoing shall not apply during any period in which be, nor be construed to be, a regulatory agency having supervisory responsibility over a party is in control of that party or of its assets, pursuant to the laws of the jurisdiction applicable to that partypenalty.
(fd) RBCIS is the Custodian and either RBCIS or the Customer gives notice to the other to terminate the custodian agreement between themThe word “cause”, then RBCIS may exercise its rights under Section 13.2 belowas used herein, except that, if so specified by RBCIS in writing in the case of shall mean the occurrence of any Event of Default specified the following:
(i) Any major violations of NCAA or SEC by laws or regulations in paragraph the football program (eas defined by each such organization);
(ii) Failure to follow written Athletics Department, or other University policies and procedures;
(iii) Acts of this Section (each misconduct including, but not limited to, conviction of a “Bankruptcy Default”)felony, or a finding that the provisions of Section 13.3 shall apply.
13.2 Subject to Section 13.3 below, Coach has at any time following the occurrence of an Event of Defaultmaterially violated NCAA or SEC bylaws, RBCIS mayrulings, by notice regulations or policies applicable to the Customer, specify a day (the “Early Termination Date”) for the termination and liquidation of the FX Transactions in accordance with the provisions of Section 13.4 below.
13.3 Unless RBCIS specifies otherwise, the date of the occurrence of any Bankruptcy Default shall automatically constitute an Early Termination Date without the need for further notice by RBCIS and the provisions of Section 13.4 shall then apply.
13.4 Upon the occurrence of an Early Termination Date:
(a) neither party shall be obliged to make any further payments University or deliveries under any FX Transactions which would, but for this provision, have fallen due for performance on or after the Early Termination Date and such obligations shall be satisfied by settlement (whether by payment, set-off or otherwise) of the Termination Amount;
(b) RBCIS shall (on, or as soon as reasonably practicable after, the Early Termination Date) determine (discounting if appropriate), in respect of each FX Transaction referred to in paragraph (a) of this Section, its total cost, loss or, as the case may be, gain, in each case expressed in the currency specified by RBCIS as such in writing or, failing any such specification, the lawful currency of Canada (the "Base Currency") (and, if appropriate, including any loss of bargain, cost of funding or, without duplication, cost, loss or, as the case may be, gain as a result of the termination, liquidation, obtaining, performing or re-establishing of any hedge or related trading position) as a result of the termination, pursuant to this Agreement, of each payment or delivery which would otherwise have been required to be made under such FX Transaction (assuming satisfaction of each applicable condition precedent and having due regard, if appropriate, to such market quotations published on, or official settlement prices set by the relevant market as may be available on, or immediately preceding, the date of calculation); and
(c) RBCIS shall treat each cost or loss to RBCIS, determined above, as a positive amount and each gain by RBCIS, so determined, as a negative amount and aggregate all of such amounts to produce a single, net positive or negative amount, denominated in the Base Currency (the "Termination Amount").
13.5 If the Termination Amount determined pursuant to Section 13.4 above is a positive amount, the Customer shall pay it to RBCIS and if it is a negative amount, RBCIS shall pay it to the Customer. RBCIS will notify the Customer of the Termination Amount, and by whom it is payable, promptly after the calculation of such amount.
13.6 The Termination Amount shall be paid in the Base Currency by the close of business on the Business Day following RBCIS notifying the Customer of the Termination Amount under Section 13.5 above. Any Termination Amount not paid on the due date shall be treated as an unpaid amount and bear interest, at the rate as reasonably determined by RBCIS to be the cost of funding such overdue amount in addition to any late payment interest it may be entitled to charge pursuant to Applicable Regulations. Interest will accrue on a daily basis and will be due and payable immediately by the Customer as a separate debt.
13.7 For the purposes of any calculation hereunder, RBCIS may convert amounts denominated in any other currency into the Base Currency at such rate prevailing Coach’s prior employers at the time of the calculation violation. Misconduct shall also extend to such major violations of NCAA or University rules or policies if committed by any personnel described in paragraph 2(a)(i)-(vi), or by any student-athlete or other “representative of the University’s athletic interests” (as RBCIS shall defined by the NCAA), where the Coach consented to such violation, had prior knowledge of the violation and did not prevent the violation, concealed or failed to report the violation, or where the Director of Athletics and President determine that the Coach reasonably select.knew or should have known of the violation;
13.8 Unless (iv) Refusal or until intentional failure to furnish information relevant to an Early Termination Date has occurred investigation of a possible violation of an NCAA or has been effectively setSEC bylaw or regulation;
(v) Refusal to cooperate with the NCAA, RBCIS shall not be obliged SEC or University staff in the investigation of violations of NCAA or SEC regulations;
(vi) Involvement in arranging for academic fraud by or for prospective or enrolled student-athletes;
(vii) Involvement in offering or providing prospective or enrolled student-athletes improper inducements or extra benefits;
(viii) Knowingly and intentionally furnishing the NCAA, SEC or the University false or misleading information concerning the Coach or any staff member’s or athletics’ representative’s involvement in or knowledge of a violation of an NCAA or SEC regulation;
(ix) Knowingly and intentionally providing information to make individuals involved in organized gambling activities concerning intercollegiate athletics competition;
(x) Soliciting a bet on any payment inter-collegiate team or delivery scheduled to be made by RBCIS under accepting a FX Transaction for as long as an Event of Default bet on any team representing the University;
(xi) Participating in any gambling activity that involves intercollegiate athletics or professional athletics through a potential Event of Default with respect to the Customer has occurred and is continuing.
13.9 RBCIS’ rights under this Section shall be in addition tobookmaker, and not in limitation a parlay card or exclusion of, any other rights which RBCIS may have method employed by organized gambling;
(whether by agreement, operation of law xii) Failure or otherwise).
13.10 This Agreement, the particular terms applicable refusal to each FX Transaction, and all amendments to any of them shall together constitute a single agreement between RBCIS and the Customer. RBCIS and the Customer each acknowledge that all FX Transactions entered into on or after the date this Agreement takes effect are entered into provide in reliance upon the fact that the Agreement and all such terms constitute a single agreement between RBCIS and the Customer.
13.11 Either party may terminate this Agreement by giving thirty (30) days written notice of termination to the other. Upon termination of this Agreement, all amounts payable by the Customer to RBCIS will become immediately due and payable.
13.12 Any FX Transaction executed between the parties under this Agreement prior to termination shall be executed or completed notwithstanding such termination unless the Customer otherwise instructs RBCIS in writing.
13.13 The provisions of Sections 4, 5, 8, 12, 14 and 15.11 of this Agreement shall survive termination of this Agreement.compliance with NCAA Bylaw
Appears in 1 contract
Samples: Employment Agreement
