|
any representation or warranty made by Customer shall prove to be false or misleading in any material respect as of the
<br /> time made, or any report, data, information, certificate, financial statement or other instrument furnished by Customer in
<br /> connection with this Master Agreement or any Service shall prove to be false or misleading in any material respect as of
<br /> the time furnished ;
<br /> (iv) Customer or any person or entity which has guaranteed the payment and performance of Customer' s obligations under this
<br /> Master Agreement or with respect to any Service (together with Customer, the "Obligors") shall (A) apply for or consent
<br /> to the appointment of a receiver, trustee, liquidator or other custodian for Obligor or any of Obligors properties or assets ,
<br /> (B ) fail or admit in writing Obligor' s inability to pay its debts generally as they become due, (C) make
<br />a general
<br /> assignment for the benefit of creditors , (D) suffer or permit an order for relief to be entered against Obligor
<br /> in any
<br /> proceeding under the federal Bankruptcy Code, or (E) file a voluntary petition in bankruptcy, or a petition or an answer
<br /> seeking an arrangement with creditors or to take advantage of any bankruptcy, reorganization , insolvency, readjustment of
<br /> debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against
<br /> Obligor in any proceeding under any such law or statute, or if partnership action shall be taken by any Obligor for the
<br /> purpose of effecting any of the foregoing;
<br /> (v) a petition shall be filed, without the application , approval or consent of Obligor in any court of competent jurisdiction,
<br /> seeking bankruptcy, reorganization, rearrangement, dissolution or liquidation of Obligor or of all or a substantial part of
<br /> the properties or assets of Obligor, or seeking any other relief under any law or statute against Obligor, or the appointment
<br /> of a receiver, trustee, liquidator or other custodian of such Obligor or of all or a substantial part of the properties or assets
<br /> of such Obligor, and such petition shall not have been stayed or dismissed within sixty (60) days after the filing thereof;
<br /> (vi) any Obligor shall die, if an individual, be dissolved or liquidated, if an entity, or cease to be solvent
<br /> or suspend or
<br /> discontinue business in the ordinary course ;
<br /> (vii ) any writ of execution , attachment or garnishment shall be issued against a substantial portion of the assets of any Obligor
<br /> and such writ of execution , attachment or garnishment shall not be dismissed , discharged or quashed within thirty (30)
<br /> days of issuance;
<br /> (viii ) any final judgment for the payment of money in excess of $50,000 shall be rendered against any Obligor and the same
<br /> shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed ;
<br /> (ix) any guarantor of Customer' s obligations shall default in the due observance or performance of any covenant, condition or
<br /> agreement on such guarantor' s part to be observed or performed under such guarantor's guaranty agreement or shall
<br /> terminate or attempt to terminate such guarantor' s guaranty agreement; or
<br /> (x) in Bank ' s discretion and judgment (A) there has been an adverse change in Customer' s financial condition or business or
<br /> (B) Customer may not have sufficient available funds in its Account on any settlement date in connection with a Service
<br /> which requires funds to be available, or (C) Bank deems itself or its assets insecure or at unreasonable exposure or risk with
<br /> respect to any Service transaction, activity, or inquiry.
<br /> (c) No termination of any Service for any reason shall relieve Customer of any liability for Customer' s obligations which have
<br /> accrued prior to the effective time of termination or for Customer ' s obligations and duties hereunder which by their
<br /> nature or by express
<br /> provision are intended to survive termination . Following any termination of a Service, Customer shall pay or perform any and
<br /> all related
<br /> outstanding obligations , and return to Bank any and all related Service Materials and Confidential Information, promptly upon Bank' s
<br /> demand .
<br /> No termination or suspension of any Service by Bank, and no failure on the part of Bank to demand payment or performance of any outstanding
<br /> obligations , shall limit Bank ' s right to pursue any recourse and remedies available to Bank in the event of breach by Customer
<br /> of any terms,
<br /> provisions, or conditions of this Master Agreement.
<br /> 18 . Indemnification . Except for those losses caused directly by Bank ' s negligence, gross negligence or intentional acts , Customer
<br /> agrees
<br /> to indemnify, defend , and hold Bank, its officers, directors, shareholders, agents , employees, and affiliates, and their respective officers , directors,
<br /> agents and employees, harmless from and against any and all losses, costs, suits, damages, claims, liabilities, and expenses (including,
<br /> without
<br /> limitation , reasonable attorneys ' fees) arising from or related in any way to (a) any Service transaction or activity performed in compliance
<br /> with
<br /> Customer ' s instructions or directions, (b) Bank ' s action or inaction in reliance upon any instructions or information received from any Authorized
<br /> User or any other person reasonably believed by Bank to be an authorized representative of Customer, (c) breach by Customer
<br /> or any of
<br /> Customer' s agents , representatives , employees , service providers, or contractors of any of Customer 's covenants , agreements, responsibilities
<br />,
<br /> representations or warranties under this Master Agreement, and/or (d) breach or violation by Customer or any
<br />of Customer ' s agents ,
<br /> representatives , employees , service providers, or contractors of applicable laws, rules or regulations . Without limiting or diminishing
<br />any other
<br /> obligations of Customer to Bank described in this section , Customer also agrees to fully cooperate with and assist Bank in any efforts
<br />on the part
<br /> of Bank to recover from any third party or parties any losses incurred by Bank as a result of the execution of any Service transaction or activity.
<br /> 19 . Notices and Communications .
<br /> (a) Subject to the following provisions of this section , all notices, demands, requests, or other communications which may be
<br /> or are required to be given , served , or sent pursuant to this Master Agreement or with respect to any Service shall be in
<br /> writing and shall be
<br /> 7
<br />
|