Common use of Default by VENDOR Clause in Contracts

Default by VENDOR. (a) The following events shall constitute ----------------- events of default by Vendor: (i) If Vendor, in any material respect: violates or breaches, or fails fully and completely to observe, keep, satisfy, perform or comply with any terms, covenants, conditions, requirements, provisions, duties and obligations under this Agreement, and does not cure or remedy such failure to perform within thirty (30) days after 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 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 good faith to cure the default; or (ii) If, in any consecutive twelve-month period, (x) BMI becomes entitled to the Liquidated Damages pursuant to Section 12.01(b) in excess of $200,000 in respect of any BTS Sites or (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 the Sublease was false or misleading in any material respect on the date as of which made (or deemed made); or (iv) if Vendor fails to comply with the provisions of 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 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 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 such involuntary proceeding shall be commenced against Vendor and shall continue for a period of forty-five (45) days after commencement without dismissal. (b) Upon the occurrence of any event of default by Vendor under this Agreement, BMI may pursue any and all rights and remedies available under applicable law and any one or more of the following 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 as to such BTS Site by giving Vendor written notice of termination, it being understood that in the case 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 more than ten percent (10%) or more of the proposed cell sites accepted by BMI pursuant to Section 5.01 during any twelve (12) consecutive month period 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 any or all BTS Sites pursuant to Section 3.09, 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 enforcement measures, including the filing of any action at law or in equity 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.

Default by VENDOR. (a) The 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 shall constitute ----------------- events of default by Vendoror conditions occurs or is continuing: (i) If Vendor, in Vendor fails to pay any material respect: violates or breaches, or fails fully and completely to observe, keep, satisfy, perform or comply with any terms, covenants, conditions, requirements, provisions, duties and obligations amounts due Nasdaq under this Agreement, and does not cure or remedy such failure to perform Agreement within thirty (30) days after 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 the applicable due date for such 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 amounts specified in good faith to cure the default; orthis Agreement; (ii) Ifany representation, in any consecutive twelve-month periodwarranty or certification, (x) BMI becomes entitled which is material to the Liquidated Damages pursuant to Section 12.01(b) in excess of $200,000 in respect of any BTS Sites Corporations for regulatory, commercial or (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 other reasons, made by Vendor in this Agreement or the Sublease in any other document furnished by Vendor in connection herewith was false or misleading 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 material respect on 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 date as of which made (or deemed made)Bankruptcy Code; or (ivviii) if Vendor fails to comply with the provisions of 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 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 admits in writing 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 inability to pay all damages incurred by BMI its debts 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 such involuntary proceeding shall be commenced against Vendor and shall continue for a period of forty-five (45) days after commencement without dismissalthey become due. (b) Upon the occurrence of any event of default by Vendor under this Agreementthe events or conditions described in subsection (a) above, BMI may pursue any and all rights and remedies available under applicable law and any Nasdaq shall have the immediate right, in its sole discretion, to take one or more of the following rights and remedies, separately or concurrently or in any combination, without further notice or demand whatsoever: actions: (i) upon to terminate this Agreement and Vendor's right to receive the occurrence Information hereunder; (ii) to suspend transmission of any event of default with respect the Information to a BTS Site under Sections 14.01(a)(i), (ii)(y), Vendor; (iii) to demand arbitration under Section 10.05; or (iv)) to pursue such other remedies, BMI mayconsistent with Section 10.05 and Section 10.07, at its optionas it may be entitled by virtue of or under this Agreement, 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 as to such BTS Site by giving Vendor written notice of termination, it being understood that in the case 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)before regulatory authorities, or (B) with respect to more than ten percent (10%) or more of the proposed cell sites accepted by BMI pursuant to Section 5.01 during any twelve (12) consecutive month period 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 any or all BTS Sites pursuant to Section 3.09, 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 enforcement measures, including the filing of any action at law or in equity or the filing of any appeal of any decision or judgment with respect to any such actionequity. (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.

Default by VENDOR. (a) The following events shall constitute ----------------- events of default by Vendor: (i) If Vendor, in any material respect: violates or breaches, or fails fully and completely to observe, keep, satisfy, perform or comply with any terms, covenants, conditions, requirements, provisions, duties and obligations under this AgreementAgreement 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 receipt of written notice from BMI SBCW with respect thereto (which notice shall describe with reasonable particularity such failure); provided, however, that, that if such failure to perform shall necessitate longer to cure than such thirty ten (3010) day period, and BMI 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 thirty ten (3010) days after receipt of written notice from BMI 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; or; (ii) If, (x) in any consecutive twelve-twelve (12) month period, (x) BMI SBCW becomes entitled to the Liquidated Damages pursuant to Section 12.01(b11.01(b) in excess of $200,000 in respect of any BTS Sites or (y) BMI SBCW becomes entitled to Liquidated Damages pursuant to Section 12.01(b11.01(b) in the amount of $15,000 in respect of any BTS Site; or; (iii) if If any representation or warranty made by Vendor in this Agreement or the BTS Sublease was false or misleading in any material respect on the date as of which made (or deemed made); or; (iv) if Vendor fails to comply with breaches the provisions of Section 5.01 for at least forty-five (45) days; or5.01(a); (v) if Vendor breaches the provisions of Section 5.02 hereof; (vi) If (A) a trustee or 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, 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, default and to pay all damages incurred by BMI SBCW 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 such involuntary proceeding shall be commenced against Vendor and shall continue for a period of forty-five (45) days after commencement without dismissal. (b) Upon the occurrence of any event of default by Vendor under this Agreement, BMI SBCW may pursue any and all rights and remedies available under applicable law and any one or more of the following 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)(i13.01(a)(i), (ii)(y), (iii), (iv) or (ivv), BMI 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 (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)3.10, by giving Vendor written notice thereof, and thereafter BMI SBCW shall have the right to engage any Person to perform Services and Colocation Services in respect of such BTS Site or an alternative site within the applicable SARF or (y) terminate this Agreement as to such BTS Site by giving Vendor written notice of terminationtermination and, it being understood that thereafter SBCW shall have the right to engage any Person to perform Services in the case of either clause (x) or clause (y), respect to such BTS Site shall be deemed a Qualifying Siteor an alternative site within the applicable SARF; or (ii) upon the occurrence of any event of default: (A) under Sections 14.01(a)(ii)(x13.01 (a)(ii)(x) or (vvi), or (B) with respect to more than ten percent (10%) or more of the proposed cell sites accepted by BMI SBCW pursuant to Section 5.01 during any twelve (12) consecutive month period under Sections 14.01(a)(i13.01(a)(i), (ii)(y), (iii), (iv) or (ivv), BMI SBCW 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 (including, without limitation, with respect of to any or all BTS Sites Sites) pursuant to Section 3.09, 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)3.10, by giving Vendor written notice thereof, and thereafter BMI SBCW 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 SBCW in its notice of termination to Vendor. (c) BMI SBCW will have the right to recover from Vendor all costs and expenses incurred by BMI SBCW in enforcing its rights and remedies hereunder, including attorneys' fees and expenses paid or incurred by BMI SBCW in connection with enforcement measures, including the filing of any action at law or in equity 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 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 terminationtermination or any representations or warranties theretofore made by Vendor.

Default by VENDOR. (a) The following events shall constitute ----------------- events of default by Vendor: (i) If Vendor, in any material respect: violates or breaches, or fails fully and completely to observe, keep, satisfy, perform or comply with any terms, covenants, conditions, requirements, provisions, duties and obligations under this AgreementAgreement 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 receipt of written notice from BMI SBCW with respect thereto (which notice shall describe with reasonable particularity such failure); provided, however, that, that if such failure to perform shall necessitate longer to cure than such thirty ten (3010) day period, and BMI 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 thirty ten (3010) days after receipt of written notice from BMI 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; or; (ii) If, (x) in any consecutive twelve-twelve (12) month period, (x) BMI SBCW becomes entitled to the Liquidated Damages pursuant to Section 12.01(b11.01(b) in excess of $200,000 in respect of any BTS Sites or (y) BMI SBCW becomes entitled to Liquidated Damages pursuant to Section 12.01(b11.01(b) in the amount of $15,000 in respect of any BTS Site; or48 43 (iii) if If any representation or warranty made by Vendor in this Agreement or the BTS Sublease was false or misleading in any material respect on the date as of which made (or deemed made); or; (iv) if Vendor fails to comply with breaches the provisions of Section 5.01 for at least forty-five (45) days; or5.01(a); (v) if Vendor breaches the provisions of Section 5.02 hereof; (vi) If (A) a trustee or 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, 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, default and to pay all damages incurred by BMI SBCW 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 such involuntary proceeding shall be commenced against Vendor and shall continue for a period of forty-five (45) days after commencement without dismissal. (b) Upon the occurrence of any event of default by Vendor under this Agreement, BMI SBCW may pursue any and all rights and remedies available under applicable law and any one or more of the following 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)(i13.01(a)(i), (ii)(y), (iii), (iv) or (ivv), BMI 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 (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)3.10, by giving Vendor written notice thereof, and thereafter BMI SBCW shall have the right to engage any Person to perform Services and Colocation Services in respect of such BTS Site or an alternative site within the applicable SARF or (y) terminate this Agreement as to such BTS Site by giving Vendor written notice of terminationtermination and, it being understood that thereafter SBCW shall have the right to engage any Person to perform Services in the case of either clause (x) or clause (y), respect to such BTS Site shall be deemed a Qualifying Siteor an alternative site within the applicable SARF; or (ii) upon the occurrence of any event of default: (A) under Sections 14.01(a)(ii)(x13.01 (a)(ii)(x) or (vvi), or (B) with respect to more than ten percent (10%) or more of the proposed cell sites accepted by BMI SBCW pursuant to Section 5.01 during any twelve (12) consecutive month period under Sections 14.01(a)(i13.01(a)(i), (ii)(y), (iii), (iv) or (ivv), BMI SBCW may, at its option, either: (x) suspend its obligations until such default is cured by Vendor or 49 44 terminate its obligations to (1) exclusively engage Vendor to perform Services in (including, without limitation, with respect of to any or all BTS Sites Sites) pursuant to Section 3.09, 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)3.10, by giving Vendor written notice thereof, and thereafter BMI SBCW 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 SBCW in its notice of termination to Vendor. (c) BMI SBCW will have the right to recover from Vendor all costs and expenses incurred by BMI SBCW in enforcing its rights and remedies hereunder, including attorneys' fees and expenses paid or incurred by BMI SBCW in connection with enforcement measures, including the filing of any action at law or in equity 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 BMI 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 terminationtermination or any representations or warranties theretofore made by Vendor.