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 the Grand Duchy of Luxembourg (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 15.8 of this Agreement shall survive termination of this Agreement.
Appears in 2 contracts
Sources: Fx 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 of this Agreement and such failure continues for three Business Days after RBCIS gives notice of non-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 the Grand Duchy of Luxembourg 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 15.8 15.11 of this Agreement shall survive termination of this Agreement.
Appears in 2 contracts
Sources: 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 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 the Grand Duchy of Luxembourg (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 15.8 15.11 of this Agreement shall survive termination of this Agreement.
Appears in 2 contracts
Sources: Fx Services Agreement, Fx Services Agreement
Events of Default and Termination. 13.1 If9.1 There shall be an Event of Default and Termination if in the opinion of the MSF Seller:
(a) the Customer The MSF Buyer fails to make pay any payment when due sum payable by its under this Agreement agreement when due; or admits its inability to observe or perform pay any other provision of sum payable by it under this Agreement and such failure continues for three Business Days after RBCIS gives notice of non-performance;agreement as they fall due; or
(b) any Any representation or warranty or undertaking or covenant made or given or deemed to be made or given repeated by the Customer MSF Buyer in or pursuant to the agreement or in any document delivered under this Agreement proves agreement is found to have been false or misleading be incorrect in any material respect as at the time it was made or given or deemed made or given;respect; or
(c) it becomes unlawful for RBCIS to provide FX Services or providing FX Services would cause RBCIS to be The MSF Buyer defaults in breach the due and punctual performance of Applicable Regulations or RBCIS any other provision of this agreement and (if such default is no longer carrying on in the business opinion of providing FX Services;the MSF Seller capable of remedy) such default shall not have been remedied within [ ] days of the MSF Seller notifying the MSF Buyer of such default; or
(d) The MSF Buyer stops or suspends payment of its debts generally or is unable or admits inability to pay its debts as they fall due or proposes or enters into any Force Majeure Event prevents RBCIS from providing FX Services composition or other arrangement for a period the benefit of more than fourteen (14) consecutive days;its creditors generally or proceedings are commenced in relation to the MSF Buyer under any law, regulation or procedure relating to reconstruction or readjustment of debts; or
(e) the Customer: (i) becomes unable to pay its debts when due; (ii) enters into liquidation (except Proceedings are commenced for the purposes winding-up (whether compulsory or voluntary) of a solvent amalgamation the MSF Buyer or reconstruction)the alteration of the structure, power, authority and functions of the MSF Buyer or if the implementation and compliance with any terms and conditions of this agreement are rendered impossible or illegal; or
(iiif) makes Any event occurs or proceedings are taken with respect to the MSF Buyer in any jurisdiction to which it is subject, which has an arrangement with its creditors; (iv) becomes subject to an administration order, effect equivalent 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 events mentioned herein; or
(g) The MSF Collateral furnished by the MSF Buyer to the MSF Seller under Clause 4 above occurs deteriorates in any jurisdiction quality or becomes inadequate in respect the reasonable opinion of the Customer. The foregoing shall not apply during MSF Seller; or
(h) Any MSF Collateral executed or furnished by the MSF Buyer under Clause 4 above for any period reason whatsoever ceases to be in which a regulatory agency having supervisory responsibility over a party full force and effect or is in control of that party declared to be void or is repudiated.
9.2 Notwithstanding anything contained herein, the MSF Seller may without prejudice to any 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 belowrights, at any time following after the occurrence happening 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 belowMSF Buyer declare that its obligations hereunder are immediately terminated.
13.3 Unless RBCIS specifies otherwise9.3 The MSF Buyer shall pay the said amount to the MSF Seller within [ ] Business Days after the receipt of such notice. If the MSF Buyer fails to pay the outstanding amount along with any other payment (costs, expenses, charity payment etc) within [ ] Business Days from 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 the Grand Duchy of Luxembourg (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 receipt 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 MSF Buyer of such amounts to produce a single, net positive or negative amount, denominated in notice from 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 15.8 of this Agreement shall survive termination of this Agreement.MSF Seller
Appears in 1 contract
Sources: Margin Financing 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 of this Agreement and such failure continues for three Business Days after RBCIS gives notice of non-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 the Grand Duchy of Luxembourg (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 15.8 of this Agreement shall survive termination of this Agreement.,
Appears in 1 contract
Sources: Foreign Exchange 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 of this Agreement and such failure continues for three Business Days after RBCIS gives notice of non-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 the Grand Duchy of Luxembourg 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 15.8 of this Agreement shall survive termination of this Agreement.
Appears in 1 contract
Sources: Fx Services Agreement
Events of Default and Termination. 13.1 11.1 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-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 11.2 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 11.3 shall apply.
13.2 11.2 Subject to Section 13.3 11.3 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 11.4 below.
13.3 11.3 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 11.4 shall then apply.
13.4 11.4 Upon the occurrence of an Early Termination Date:
: (a) neither 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) 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 the Grand Duchy of Luxembourg (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 15.8 of this Agreement shall survive termination of this Agreement.
Appears in 1 contract
Sources: Fx Services Agreement
Events of Default and Termination. 13.1 If(a) Any one of the following events shall constitute an event of default:
(a1) the Customer fails Client’s failure to make pay any payment amount payable to the Broker/Selling Agent or submit to the Broker/Selling Agent any documents or deliver any assets to the Broker/Selling Agent hereunder, when called upon to do so or on due under this Agreement or to observe or perform any other provision date;
(2) breach of this Agreement and such failure continues for three Business Days after RBCIS gives notice by the Client;
(3) the filing of non-performancea petition in bankruptcy or the commencement of any analogous proceedings against any of the Clients;
(4) the levying of any attachment against the Securities Account, the Settlement Account, or any other accounts maintained with any member bank of the BPI Group;
(5) any information, declaration representation or warranty made by the Client to the Broker/Selling Agent in this Agreement being or becoming incorrect or misleading;
(6) the death of the Client (if the Securities Account or the Settlement Account is not a joint account); and
(7) any other matter or event including any regulatory requirements or the nature of the instructions given by the Client to the Broker/Selling Agent which the Broker/Selling Agent in good faith believes may expose or lead the Broker/Selling Agent to any actions, claims, proceedings, losses, damages, costs, expenses or liabilities of whatever nature.
(b) Either the Broker/Selling Agent or the Client shall have the right, at any representation time upon giving reasonable notice, to close the Securities Account without providing any reason therefor. The Broker/Selling Agent shall be entitled to close the Securities Account without need of notice to the Client if an event of default set out above occurs or warranty made or given or deemed to be made or given by in the Customer under this Agreement proves to have been false or misleading event of exceptional circumstances (such as when the Securities Account is being used for criminal activities) and also notwithstanding that the Securities Account is in any material respect as at the time it was made or given or deemed made or given;credit.
(c) it becomes unlawful In the event that the Securities Account is closed and/or this Agreement is terminated in accordance with Section 16 (A) (Events of default and Termination) above, to the extent permitted under applicable laws and regulations but without any prejudice to any other rights and remedies the Broker/Selling Agent may have, the Broker/Selling Agent shall be entitled to:
(1) close out all or any open positions held by the Broker/Selling Agent for RBCIS the Client in any account with any member bank of the BPI Group;
(2) to provide FX Services the fullest extent permitted by law, dispose of any securities, collateral or providing FX Services would cause RBCIS other assets comprising the Portfolio/Securities; and
(3) cancel any outstanding Instructions in order to be suspend or close the Securities Account, and apply all and any cash held by the Broker/Selling Agent and/or the proceeds in breach satisfaction of Applicable Regulations all or RBCIS is no longer carrying on any amounts owing to the business Broker/Selling Agent (including without limitation, amounts due in respect of providing FX Services;settlement, fees, commissions and interest).
(d) The Broker/Selling Agent reserves the right and the Client authorizes the Broker/Selling Agent to combine and consolidate the balances of all of Client’s accounts maintained with any Force Majeure Event prevents RBCIS from providing FX Services for a period member of more than fourteen (14) consecutive days;the BPI Group and to set off such balances against outstanding balance between the Client and the Broker/Selling Agent. The Client grants the Broker/Selling Agent full power and authority to implement the foregoing authorizations, the performance of which are hereby expressly authorized, confirmed and ratified by the Client.
(e) Without prejudice to the Customer: (i) becomes unable foregoing, the Client shall pay to pay its debts when due; (ii) enters into liquidation (except for the purposes of Broker/Selling Agent on demand any replacement or other costs which may arise as 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 the premature liquidation of the above occurs in any jurisdiction in respect investments of the CustomerPortfolio /Securities provided that such costs are reasonably incurred. 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 Client irrevocably authorizes the Broker/Selling Agent to deduct all such costs from the laws proceeds of the jurisdiction applicable to that partyliquidation of the Portfolio/Securities.
(f) RBCIS is The Client authorizes the Custodian and either RBCIS Broker/Selling Agent to transfer or appropriate without the Customer gives Client’s prior notice or consent the balances in any of the deposit accounts held in any of the member bank of the BPI Group in his name to set off the balances still owing to the other Broker/Selling Agent notwithstanding that the deposit or any part thereof may be subject 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 a period of the occurrence of any Event of Default specified in paragraph notice.
(eg) of this Section (each a “Bankruptcy Default”), Subject to the provisions of Section 13.3 shall apply.
13.2 Subject to Section 13.3 below, at any time following this Agreement and after deduction of all monies and liabilities due by the occurrence of an Event of Default, RBCIS may, by notice Client to the CustomerBroker/Selling Agent, specify a day (the “Early Termination Date”) for Broker/Selling Agent shall, as soon as practicable, remit the termination and proceeds of the liquidation of the FX Transactions in accordance with Portfolio/Securities or, if requested by the provisions Client, return such securities or other property as from time to time constitute part or whole of Section 13.4 belowthe Portfolio/Securities to the order and at the risk of the Client.
13.3 Unless RBCIS specifies otherwise(h) The Client and the Broker/Selling Agent acknowledge that closing the Securities Account, terminating the Broker/Selling Agent’s services or this Agreement, will not affect the rights and obligations of either party already accrued and/or incurred prior thereto.
(i) The Broker/Selling Agent shall not in any way be responsible for any diminution of value of the investments/securities or part thereof by reason of termination of this Agreement for whatever reason and the Client shall in such event bear all losses, penalties or expenses arising from the sale, transfer, disposal or liquidation of the Portfolio or part thereof.
(j) In order to secure payment of the Client’s obligation under this Agreement, the date Client hereby grants to the Broker/Selling Agent a continuing lien and security interest in, and right 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) against, all of the Termination Amount;
(b) RBCIS shall (onClient’s right, or as soon as reasonably practicable aftertitle and interest in and to the Settlement Account, the Early Termination Date) determine (discounting if appropriate)Securities Account, in respect and the securities, including proceeds thereof, money and other property now or hereafter held by the Broker/Selling Agent for and on behalf of each FX Transaction referred to in paragraph (a) of the Client. In 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 specificationregard, the lawful currency of the Grand Duchy of Luxembourg (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 Broker/Selling Agent 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 all the rights and remedies of a daily basis and will be due and payable immediately by the Customer as a separate debtsecured creditor under applicable laws, rules or regulations in effect.
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 15.8 of this Agreement shall survive termination of this Agreement.
Appears in 1 contract
Sources: Securities Account Agreement
Events of Default and Termination. 13.1 IfHPD Event of Default
13.1.1 The occurrence and/or continuation of any of the following events, unless any such event occurs as a result of a Force Majeure Event or a breach by CESC of its obligations under this Agreement, shall constitute an HPD Event of Default:
(i) the failure to commence supply of power to CESC up to the Contracted Capacity, by the end of the period specified in Article 4, or failure to continue supply of Contracted Capacity to CESC after Commercial Operation Date throughout the term of this Agreement, or if
a) the Customer fails HPD assigns, mortgages or charges or purports to make any payment when due under this Agreement assign, mortgage 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 charge any of its assets or takes rights related to the Power Project in contravention of the provisions of this Agreement; or
b) the HPD transfers or suffers novates any of its rights and/ or obligations under this agreement, in a manner contrary to be taken the provisions of this Agreement; except where such transfer • is in pursuance of a Law; and does not affect the ability of the transferee to perform, and such transferee has the financial capability to perform, its obligations under this Agreement or • is to a transferee who assumes such obligations under this Agreement and the Agreement remains effective with respect to the transferee;
(ii) if (a) the HPD becomes voluntarily or involuntarily the subject of any bankruptcy or insolvency or winding up proceedings and such proceedings remain uncontested for a period of thirty (30) days, or (b) any winding up or bankruptcy or insolvency order is passed against the HPD, or (c) the HPD goes into liquidation or dissolution or has a receiver or any similar action in consequence of a debt; officer appointed over all 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 substantially all of its assetsassets or official liquidator is appointed to manage its affairs, pursuant to the laws Law, provided that a dissolution or liquidation 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 HPD will not be a HPD Event of Default specified if such dissolution or liquidation is for the purpose of a merger, consolidation or reorganization and where the resulting company retains creditworthiness similar to the HPD and expressly assumes all obligations of the HPD under this Agreement and is in paragraph a position to perform them; or
(eiii) the HPD repudiates this Agreement and does not rectify such breach within a period of thirty (30) days from a notice from CESC in this Section regard; or
(each a “Bankruptcy Default”)iv) except where due to any CESC’s failure to comply with its material obligations, 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 HPD is in accordance with the provisions of Section 13.4 below.
13.3 Unless RBCIS specifies otherwise, the date of the occurrence breach 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 its material 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 the Grand Duchy of Luxembourg (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 and 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 material breach is not rectified 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 HPD within thirty (30) days written of receipt of first notice of termination to in this regard given by CESC.
(v) change in shareholding before the other. Upon termination specified time frame as mentioned in Article 4.1.1 of this Agreement; or
(vi) occurrence of any other event which is specified in this Agreement to be a material breach/ default of the HPD.
(vii) except where due to any CESC’s failure to comply with its material obligations, all amounts payable the HPD is in breach of any of its material obligations pursuant to this Agreement, and such material breach is not rectified by the Customer to RBCIS will become immediately due and payableHPD within thirty (30) days of receipt of first notice in this regard given by CESC.
13.12 Any FX Transaction executed between (viii) Revoking of connectivity of the parties under this Agreement prior to termination shall be executed or completed notwithstanding such termination unless HPD on account of non-compliance by the Customer otherwise instructs RBCIS in writingHPD.
13.13 The provisions of Sections 4, 5, 8, 12, 14 and 15.8 of this Agreement shall survive termination of this Agreement.
Appears in 1 contract
Sources: Power Purchase Agreement
Events of Default and Termination. 13.1 If9.1 There shall be an Event of Default and Termination if in the opinion of the MSF ▇▇▇▇▇▇:
(a) the Customer The MSF ▇▇▇▇▇ fails to make pay any payment when due sum payable by its under this Agreement agreement when due; or admits its inability to observe or perform pay any other provision of sum payable by it under this Agreement and such failure continues for three Business Days after RBCIS gives notice of non-performance;agreement as they fall due; or
(b) any Any representation or warranty or undertaking or covenant made or given or deemed to be made or given repeated by the Customer MSF Buyer in or pursuant to the agreement or in any document delivered under this Agreement proves agreement is found to have been false or misleading be incorrect in any material respect as at the time it was made or given or deemed made or given;respect; or
(c) it becomes unlawful for RBCIS to provide FX Services or providing FX Services would cause RBCIS to be The MSF ▇▇▇▇▇ defaults in breach the due and punctual performance of Applicable Regulations or RBCIS any other provision of this agreement and (if such default is no longer carrying on in the business opinion of providing FX Services;the MSF Seller capable of remedy) such default shall not have been remedied within [ ] days of the MSF Seller notifying the MSF Buyer of such default; or
(d) The MSF Buyer stops or suspends payment of its debts generally or is unable or admits inability to pay its debts as they fall due or proposes or enters into any Force Majeure Event prevents RBCIS from providing FX Services composition or other arrangement for a period the benefit of more than fourteen (14) consecutive days;its creditors generally or proceedings are commenced in relation to the MSF Buyer under any law, regulation or procedure relating to reconstruction or readjustment of debts; or
(e) the Customer: (i) becomes unable to pay its debts when due; (ii) enters into liquidation (except Proceedings are commenced for the purposes winding-up (whether compulsory or voluntary) of a solvent amalgamation the MSF Buyer or reconstruction)the alteration of the structure, power, authority and functions of the MSF Buyer or if the implementation and compliance with any terms and conditions of this agreement are rendered impossible or illegal; or
(iiif) makes Any event occurs or proceedings are taken with respect to the MSF Buyer in any jurisdiction to which it is subject, which has an arrangement with its creditors; (iv) becomes subject to an administration order, effect equivalent 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 events mentioned herein; or
(g) The MSF Collateral furnished by the MSF Buyer to the MSF Seller under Clause 4 above occurs deteriorates in any jurisdiction quality or becomes inadequate in respect the reasonable opinion of the Customer. The foregoing shall not apply during MSF Seller; or
(h) Any MSF Collateral executed or furnished by the MSF Buyer under Clause 4 above for any period reason whatsoever ceases to be in which a regulatory agency having supervisory responsibility over a party full force and effect or is in control of that party declared to be void or is repudiated.
9.2 Notwithstanding anything contained herein, the MSF Seller may without prejudice to any 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 belowrights, at any time following after the occurrence happening 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 belowMSF ▇▇▇▇▇ declare that its obligations hereunder are immediately terminated.
13.3 Unless RBCIS specifies otherwise9.3 The MSF ▇▇▇▇▇ shall pay the said amount to the MSF Seller within [ ] Business Days after the receipt of such notice. If the MSF ▇▇▇▇▇ fails to pay the outstanding amount along with any other payment (costs, expenses, charity payment etc) within [ ] Business Days from 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 the Grand Duchy of Luxembourg (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 receipt 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 MSF Buyer of such amounts to produce a single, net positive or negative amount, denominated in notice from 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 15.8 of this Agreement shall survive termination of this Agreement.MSF Seller
Appears in 1 contract
Sources: Margin Financing Agreement