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this section 5.1(b). Such finance charges will be included in
<br />the Company billing statement for the Billing Cycle in which
<br />they accrue. If the "New Balance" of an Account is not paid
<br />on the payment due date, a Periodic Finance Charge will begin
<br />to accrue on each Transaction in the Account from the date of
<br />the Transaction and will continue to accrue to the date of full
<br />payment. TD will figure the Periodic Finance Charges on
<br />each Account by applying a Monthly Periodic Rate to the
<br />Average Daily Balance for the Account, including current
<br />purchases, unpaid finance charges, and any other unpaid fees
<br />or charges. TD will calculate the Monthly Periodic Rate by
<br />dividing the Annual Percentage Rate ("APR") by twelve (12).
<br />The APR is set forth in the "Applicable/Potential Fees"
<br />section of the Rebate Schedule, under the heading "Finance
<br />Charge." To get the Average Daily Balance, each day TD
<br />takes the beginning balance of an Account, adds any new
<br />purchases, and subtracts applicable credits and payments.
<br />This gives the daily balance. Then, TD adds all the daily
<br />balances for the Billing Cycle and divides the total by the
<br />number of days in the Billing Cycle. This gives the Average
<br />Daily Balance, including new purchases, unpaid finance
<br />charges, and any other unpaid fees or charges. If the Previous
<br />Balance of a current Billing Cycle is either a zero or a credit
<br />balance, then the Average Daily Balance will be considered to
<br />be zero.
<br />5.2 TERM. This Agreement shall have an initial
<br />term (the "Initial Term") of three years commencing on the
<br />date hereof and shall be renewed automatically for successive
<br />two-year terms (each a "Renewal Term") unless written
<br />notice of termination is given by either party at least 30 days
<br />prior to the end of the Initial Term or any Renewal Term. In
<br />addition, either party may terminate this Agreement at any
<br />time upon 30 days' prior written notice to the other party.
<br />Upon the expiration or termination of this Agreement for any
<br />reason, the Company agrees to retrieve all Cards and related
<br />Program materials from Cardholders, cut such Cards in half,
<br />return the Cards and related Program materials to TD, and/or
<br />provide a Card Cancellation Confirmation with respect to such
<br />Cards and related Program materials.
<br />5.3 DEFAULT. As used in this Agreement, the
<br />term "Default" shall mean: (i) failure of the Company to remit
<br />payment to TD in accordance with the terms hereof; (ii) the
<br />failure of either party to comply with any other term of this
<br />Agreement or any other agreement between the parties,
<br />provided such failure is not remedied within 15 days of the
<br />defaulting party's receipt of written notice from the other party
<br />specifying the breach; (iii) the representation by the Company
<br />of any facts, either in this Agreement or in its financial
<br />information provided to TD in connection with this
<br />Agreement, that prove to have been materially incorrect ori
<br />misleading when such representation was made; (iv) the filing
<br />by or against either party of any petition in bankruptcy,
<br />insolvency, receivership, or reorganization or pursuant to any
<br />other debtor relief law or the entry of any order appointing a
<br />receiver, custodian, trustee, liquidator, or any other person
<br />with similar authority with respect to the assets of either party;
<br />(v) the insolvency, dissolution, reorganization, assignment for
<br />the benefit of creditors or any other material adverse change in
<br />the financial condition of either party; (vi) the entry of any
<br />adverse judgment, order, or award against the Company that
<br />has a material adverse impact on the financial condition of the
<br />Company; (vii) any change in control or material change of
<br />ownership of the Company or any event having a material
<br />adverse financial impact on the Company or a detrimental
<br />effect on the Company's ability to perform the Obligations,
<br />including, without limitation, the taking of any action by the
<br />Company to consolidate or merge or sell any substantial part
<br />of its assets; (viii) any default by the Company under the terms
<br />of any material indebtedness owed by the Company to TD, or
<br />any third party or other TD related entity; (ix) excessive
<br />fraudulent or other unauthorized use of Cards or Accounts or
<br />credit losses with respect thereto as determined by TD, in its
<br />sole discretion, or (x) failure of the Company to satisfy the
<br />requirements of TD under Section 2.4 (b). In addition, if this
<br />Agreement is secured, even as a result of cross
<br />collateralization, the term "Default" includes any event not
<br />listed above that is a default under the applicable security
<br />agreement.
<br />5.4 REMEDIES FOR DEFAULT; DAMAGES.
<br />(a) Either party may terminate this Agreement at
<br />any time upon the Default of the other party. Except where a
<br />remedy is expressly provided herein or as otherwise provided
<br />in this Section 5.4, termination of this Agreement will be a
<br />party's sole remedy for breach; provided, that no termination
<br />or expiration of this Agreement shall release or discharge the
<br />Company from the payment of any amount otherwise payable
<br />under this Agreement.
<br />(b) Upon a Default by the Company, in lieu of
<br />termination of this Agreement, TD may, in its sole discretion,
<br />shorten the Billing Cycle until such time as TD determines to
<br />reinstate the interval for the Billing Cycle or suspend all
<br />services and obligations hereunder until such time as TD
<br />determines to reinstate such services and obligations. By
<br />shortening the Billing Cycle or suspending its services and
<br />obligations, TD shall not be deemed to have waived any right
<br />which it may have, whether as a result of the Default or
<br />otherwise, to terminate this Agreement.
<br />(c) A breaching party shall be liable for any actual
<br />damages caused by its breach, but neither party will be liable
<br />under any provision of this Agreement for any punitive or
<br />exemplary damages, or for any special, indirect or
<br />consequential damages (including, without limitation, costs
<br />incurred in developing and implementing the Program, lost
<br />revenues, lost profits, or lost prospective economic
<br />advantages) arising from or in connection with any
<br />performance or failure to perform under this Agreement, even
<br />if such party knew or should have known of the existence of
<br />TD Bang 06/15
<br />Internal
<br />P79
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